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ELDREDGE  &  ELDREDGE 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

Eldredge 


[^ 


CtlARLES  BUWKr/ELLlO-n 


A  TREATISE 

ON 

FEDERAL   PRACTICE 

CIVIL  AND  CRIMINAL 

INCLUDING 

Practice  in  Bankruptcy,  Admiralty,  Patent  Cases, 

Foreclosure   of  Railway   Mortgages,   Suits 

Upon  Claims  Against  the  United  States, 

Proceedings  Before  the  Interstate 

Commerce  Commission  and  the 

Federal  Trade  Commission, 

EQUITY  PLEADING  AND  PRACTICE, 
RECEIVERS  AND  INJUNCTIONS 

IN  The  state  courts 


BY 

ROGER  FOSTER 

OF    Tin:    NEW    ViiitK    liAU 
Al'THOR    OF    COMMEXTAHIES    OX    THE    CONSTITITION    OF    THE     TXITEn    STATES, 

Treatises    ox    the    Fedeuai.    .TrniriAUY    Ai-ts   of   IST.'i   axi>   1K87,   the 

rEUEUAL    IXtOME    Tax    OF    lS'.t4.    THE    KEDEKAI,    IXidME    TaX    OK    l!»li! 
AXD     1914,     I.   UEItTY     OF     CnXTKACT,     ATTACHMENT.      KE.\Ui\AL    OF 

Causes,    Tkial     by     NEwspAi-Eit,    &c.,    F(i1(.meki.y     Lec- 

tuueu  ox  Fedekai.  .IritisritiDExrE  at  the 

Law   School  of  Yai.e   Fxiveusity. 


SIXTH  EDITION 

revised  and  enlarged 

IN  FOUR  VOLUMES 
VOL.  II 

CHICAGO 

CALLAGHAN  &  COMPANY 

1920 


Copyright,  1890 

BY 
EOGEE  FOSTER 


Copyright,  1892 

BY 

EOGEE  FOSTEE 


Copyright,  1901 

BY 

EOGEE  FOSTER 


Copyright,  1909 

BY 

ROGER  FOSTEE 


Copyright,  1913 

BY 

EOGEE  FOSTEE 


Copyright,  1920 

BY 
EOGEE  FOSTER 


TABLE  OF  CONTENTS 


VOLUME  IL 

CHAPTER  X. 

CROSS-BILLS,   SET-OFFS   AND   COUNTER-CLAIMS. 

Page 

§  197.     Definition  and  origin  of  cross-bills - 

§  198.     Counter-claims    

§198a.  Counter-claims   in  patent   ami   trade-mark   cases H-^^ 

§  198b.  Set-offs     

§198c.  Distinction  between  counter-claims  and  defense -JJ^-^ 

^  199.     New  parties  to  cross-bUls  and  counter-claims H+a 

5  200.     Time  of  filing  set-offs,  counter-claims  and  cross-bills 1149 

§  201.     Proceedings    upon    cross-bills 

CHAPTER  XI. 

REPLIES. 

§  202.  Definition   and  history   of   replies ^ 

§  203.  When  a  reply   should   be  filed •  • 

S  204.  Effect   of   reply ^ 

§  205.  Frame  of  a  reply 

CHAPTER   XII. 

AMENDMENTS   OF   WRITS,   PROCESS   AND   PLEADINGS,   AT    LAW 

AND  IN  EQUITY. 

,  1160 

§206.     Amendments    in    general ^ 

S  207.     Amendments  of  writs  and  process '- 

§  208.     Amendment  of  pleadings  at  common-law J     -^ 

§  209.     When  biUs  in  equity  can  be  amended _ 

§  210.     Form  of   amendment   of   a  bill 

§  210a.  Effect  of  amendment.     In  general 

§  210b    Time  from  which  amendment  takes  effect 

I  211.     What  amendments  may  be  made  to  bills  in  equity  and  de-lara- 

tions  at  common  law • 

§  212.     Amendment   by   i.leading   matters  subsequent  to   the   filing  of 

the  bill    

iii 


1168 
1171 
1176 


70970 4 


IV  TABLE   OF    CONTENTS 

Page 

§  213.     Proceedings  upon  an  amended  bill 1178. 

§  214.     Amendment  of  answers  and  pleas 1179 

§  215.     Practice  in  obtaining  leave  to  amend 1182 

§  215a.  Amendments  upon  appeal  or  error 1184 

§  215b.  Eeview  of  rulings  on  amendments 1184 

CHAPTER  XIII. 

ABATEMENT,    EEVIVOR    AND    SUPPLEMENT    AT    LAW    AND    IN 

EQUITY. 

§  216.     Abatement     1187 

§  217.     Effect    of    abatement 1194 

§  218.     When  a  suit  may  be  re\  ived 1196 

§  218a.  Effect   of    revivor 1197 

§  219.     Who  may  revive  a  suit 1198- 

§  220.     Manner  of  revivor  at  common  law 1199 

§  221.     Manner  of  revivor  in  equity.     In  general 1202 

§  222.     Definition  of  bill  of  revivor  and  parties  to  the  same 1204 

§  223.     Frame  of  bill  of  revivor 1205 

§  224.     Proceedings  upon   bills    of    revivor 1206. 

§  225.     Bills  in  the  nature  of  bills  of  revivor.     In  general 1209' 

§  226.     Frame  of  bills  in  the  nature  of  bills  of  revivor  and  proceed- 
ings upon  them    1211" 

§  227.     Manner  of  revivor  upon  appeal  or  error 1211 

§  228.     Bills  of  revivor  and  supplement 1214 

§  229.     Supplemental  bills  in  the  nature  of  bills  of  revivor 1215 

§  230.     What  renders  a  suit  defective 1215 

§  231.     Supplemental    bills    121& 

§  232.     Parties  and  frame  of  a  supplemental  bill 1226 

§  233.     Proceedings  upon   supplemental  bills 1228 

§  234.     Bills  in  the  nature  of  supplemental  bills.     In  general 1231 

§  235.     Frame  of  a  bill  in  the  nature  of  a  supplemental  bill 1233 

§  236.     Proceedings  upon  bills  in  the  nature  of  supplemental  bills.  .  .  .  1234 

CHAPTER  XIV. 

IMPERTINENCE  AND  SCANDAL. 

§  237.     Impertinence     1236 

§  238.     Scandal    1240 

§  239.     Striking  out  scandal  and   impertinence 1242' 

CHAPTER  XV. 

MOTIONS  TO  MAKE  PLEADINGS  MORE  DEFINITE  AND  CERTAIN 

AND  BILLS  OF  PARTICULARS. 
§  240.     Distinction  between  motions  to  make  pleadings  more  definite 

and  certain  and  bills   of  particulars 1245 


TABLE   OF    CONTEXTS  V 

Page 

•■§241.  Motions  to  make  pleadings  more  definite  and  certain 1245 

■S  242.  Bills    of    particulars l--*^ 

§  24o.  Practice  upon  motion  for  bill  of  particulars 1250 

S  244.  Remedy  for  failure  to  give  a  bill  of  particulars 1251 

§  245i  Form  of  bill  of  particulars 1--5- 

§  246.  Amendment  of   bill  of   particulars 1253 

CHAPTER  XVI. 
MOTIONS  AND  PETITIONS. 

^247.     Definition  and  classification  of  interlocutory  applications 1255 

^  248.     Definition  and  classification  of  motions 1255 

§  249.     Motions    of    course 1255 

§  250.     Special    motions    without    notice 1256 

§  251.     Notice    of    motion 1257 

§  252.     Argument   of   motions 1262 

§  253.     Petitions    in    general 1265 

§  254.     Form  of  petitions  and  practice  upon  them 1267 

§  255.     Orders 1269 

S  256.     Judges  who  may  grant  orders 127/ 

§  257.     The    clerk 's    office 127s 

CHAPTER  XVn. 

INTERVENTIONS. 

^  258.     Interventions.      In   general 1283 

§  258a.  Intervention   in  class   suits 1285 

§  258b.  Intervention    by    bondholders 1287 

S  258e.  Intervention    by    stockholders 1291 

§  258d.  Interventions  by  general   creditors 1294 

§  258e.  Interventions  of  persons  entitled  to  share  in  a   fund  held  by 

the  court   11.96 

■■§  258f.  Intervention   by    persons    interested    in    property    the    title   to 

which  is  in  dispute 129^" 

§  258g.  Intervention    by    })ersons    interested    in,    or    with    a    lien    upon 

property  which  is  the  subject  of  litigation 1297 

§  258h.  Interventions  pro   interesse  suo 1298 

§  258i.    Intervention  under  the  pure  food  and  drugs  act 1299 

§  258,].  Interventions  in  patent  litigation 1299 

§  258k.  Intervention  in  suit  under  the  interstate  commerce  law 1300 

§  2581.  Interventions   in  suits  on  contractors'  bonds 1300 

§  258m.  Laches    barring    intervention 1301 

§  258n.  Interventions  by  the  United  States,  States,  and  cities 1302 

§  258o.  Effect  of  State  statutes  upon  intervention 1304 

§  259.     Petition    for    intervention 1305 

^  259a.  Notice  of  application  for  intervention 1309 


Vi  TABLE   OF    CONTENTS 

Page 

§  259b.  Opposition    to    intervention 1310 

§  259c.  Hearing  upon  application  for  intervention 1311 

§  259(1.  Practice  upon  intervention 1313 

§  259e.  Appeals  from   orders  upon  interventions  and  their  review  by 

writs   of   error 1314 

§  260.     Rights  of  intervening   complainants. 1316 

§  261.     Rights   of   intervening   defendants 1318 

CHAPTER  XVIII. 

INJUNCTIONS. 

§262.     Definition,  classification,  and  objects  of  injunctions 1321 

§  263.     Injunctions  to  enforce  trusts  and  other  purely  equitable  rights  1321 
§  264.     Injunctions    to    restrain    corporations    from    violating    their 

charters     1323 

§  264a.  Injunctions  to  protect  corporate  franchises 1326 

§  265.     Injunctions  to  enforce  the  specific  performance  of  covenants 

and  other  contracts  affecting  land 1331 

§  266.     Injunctions  to  prevent  a  multiplicity  of  suits 1332 

§  267.     Injunctions  to  prevent  irreparable  injury  for  which  the  remedy 

at  law  is  inadequate.     In  general 1333 

§268.     Injunctions  to  stay  proceedings  in  other  courts.    In  general.  .  .   1334 

§  269.     Injunctions  to  stay  proceedings  in  Federal  courts 1336 

§  269a.  Injunctions   against   patent    litigation 1338 

§270.     Injunctions  to   stay   proceedings  in  State  courts 1340 

§  270a.  Injunctions  to  protect  jurisdiction  of  Federal  courts 1346 

§  271.     Injunctions  against  criminal  proceedings 1349 

§  271a.  Injunction  against  the  enforcement  of  municipal  ordinances..   1351 
§  271b.  Injunctions    against   assessment   and   collection    of   taxes   and 

betterments 1352 

§  272.     Injunctions  to  restrain  the  alienation  of  property 1356 

§  273.     Injunctions   to   prevent    waste 1357 

§  274.     Injunctions  to  prevent  the  continuance  of  a  nuisance 1359 

§  274a.  Injunctions    to    enforce    prohibition    of    use    of    intoxicating 

liquors     1361 

§  275.     Injunctions  to  restrain  trespass 1363 

§  276.     Injunctions    against    strikers 1366 

§  276a.  Restriction  upon  such  injunctions  by  the  Clayton  Act 1373 

§  276b.  Injunctions  under  the  Anti-trust  Law  against  strikers 1378 

§  276c.  Injunctions  to  prevent  obstructions  to  interstate  commerce...   1379 
§  276d.  Injunctions  under  the  Act  of  Aug.  10,  1917,  for  the  conserva- 
tion of  supply  and  control  of  distribution  of  necessaries.  . .  .   1383 

§277.     Injunctions  to  restrain  the  infringement  of  patents 1385 

§  278.     Injunctions  to  restrain  the  infringements  of  copyrights 1399 

§  279.     Injunctions  to  restrain  the  unlawful  use  of  trade-marks 1406 

§  280.     Injunctions  to  prevent  the  opening  of  letters 1409 


TABLE   OF    CONTENTS  Vll 

Page 

S  281.     Injunctions  to  compel  the  performance  or  prevent  the  breach 

of  contracts  not  affecting  land 1409 

§  281a.  Injunctions  to  prevent  the  revocation  or  refusal  of  a  permit 

or   license    1411 

§  282.     Injunctions  to  compel  the  delivery  of  personal  property  torti- 

ously   withheld    1411, 

§  283.     Injunctions  authorized  by  statute 1413 

§  283a.  Injunctions  to  restrain  enforcement  of  warrants  of  distress..   1413 

^  283b.  Injunctions  to  restrain  comptroller  of  the  currency 1414 

§  283e.  Injunctions  to  enforce   orders  of  the  United  States   Shipping 

Board     1^14 

§  283d.  Injunctions  to  regulate  coal  mining  or  the  operation  of  coal 

mines    1415 

§  283e.  Injunctions  to  protect  political  rights 1416 

S  284.     When  injunctions  will  not  issue 1418 

§  284a.  Injunctions  against   slanders  and   libels 1421 

§285.  Distinction  between  the  judicial  writ  and  the  writ  remedial..  1424 
§286.  Distinction  between  mandatory  and  prohibitory  injunctions..  1424 
§287.     Distinction  between  provisional  and  perpetual  injunctions....   1426 

§288.     Distinction  between   common   and  special  injunctions 1427 

§289.     Time  and  place  of  applications  for  interlocutory  injunctions..   1428 

§  290.     Injunctions  not  prayed  for  in  the  bill 1429 

§  291.     Special  practice  of  the  Federal  courts  in  the  issue  of  injunc- 
tions        1430 

§292.     Notice   of   application   for   interlocutory   injunction 1433 

§  293.     Affidavits  upon  an  application  for  an  injunction 1436 

§  294.     Rules   of   decision   upon   application   for   interlocutory   injunc- 
tions        1438 

§  295.     The   writ   of   injunction 1442 

§296.  Dissolution  and  modification  of  interlocutory  injunctions....  1446 
§  297.     The  imposition  of  terms  upon  the  issue,  denial,  dissolution,  or 

continuance    of   an    injunction  and   injunction   bonds 1452 

§  298.     Collection   of   injunction    bonds 1457 

§  299.     Perpetual    injunctions    1463 

§  300.     Apfieals   from   injunction   orders 1464 

CHAPTER  XJX. 

RECEIVERS. 

§  301.     Definition    of    receiver 1479 

§  302.     When  receivers  will   be   appointed 1479 

§  302a.  Appointment  of  receivers  of  property  of  corporations 1483 

§  302b.  Extension    of    receiverships 1489 

§  302c.  Receivers  of  National  Banking  Association 1491 

§  303.     Rules  regulating  the  appointment  of  receivers 1499 

§  304.     Ancillary   receivers    1500 


viii  TABLE   OF    CONTENTS 

Page 

§  305.     Terms  upon  the  appointment  of  receivers 1508 

§  305a.  Preference  in   foreclosure   suits  and   in  the  administration   of 

receiverships     1509 

§  305b.  Practice  upon  application  .for  such  preference 1532 

§  306.  ■  Property  over  which  receivers  may  be  appointed 1535 

§  307.     Powers  of  receivers  in  general 1541 

§  308.     Powers   of   receivers  of   railroads 1547 

§309.     Receivers'    certificates    ^nj'.'il..  1552 

§  310.     Advice    to    receivers 1561 

§  310a.  Reorganization   of   corporations   whose   assets   are  held   by   re- 
ceivers      1563 

§  311.     Litigation    by    receivers •  •  i-  .  !•  -ISed 

^  312.     Duties    of    receivers 1579 

■§  313.     Liability  of  a  receiver 1584 

•§  314.     Suits    against    receivers 1590 

§  315.     Manner  of  applying  for  the  appointment  of  a  receiver 1598  • 

§  31(5.     Who  may  apply  for  the  appointment  of  a  receiver 1602 

«(  317.     Manner  of  the  appointment  of  the  receiver 1602 

?  317a.  Disapproval  of  the  appointment  of  the  receiver.  ....  .■..J-: 'jl . .  .1-603 

§318.     Who   should   be   appointed   receiver 1603 

§  319.     The   receiver  's   security 1^07 

§  320.     Proof   of   claims  against   receivers ^ .  .  1609 

§  321.     Receiver's    accounts    '•<-'^"  ■1616 

§  321a.  Selection  and  compensation  of  receiver  's  counsel 1618 

§  322.     Compen.sation   of    receivers 1620 

§  323.     Removal   of   receivers 1624 

§324.     Discharge   of   a   receiver Ja.;f .j  .'lo.  <  jIjC*  .  -  1626 

§325.     Appeals  from  orders  appointing   receivers 1631 

CHAPTER  XX. 

THE  WRIT   OF  NE   EXEAT  REPUBLICA. 
^  326.     Definition  of  the  writ  of  ne  exeat  republica,  and  when  it  will 

'  issue    1633 

§  327.     Against  whom  the  writ  will  issue 1634 

§  328,     Practice  in  obtaining  the  writ  of  ne  exeat 1636 

CHAPTER  XXI. 

EVIDENCE  AND  DISCOVERY  AT  LAW  AND  IN  EQUITY. 

§  329.     Evidence.     In   general >.  <■''-» 16^0 

§  329a.  Judicial   notice     ■  -  •  • 1640 

§  330.     Admissions   ^^'^ 

§  '331.     Constructive  admissions    1649 

§•332.     Documentary  evidence.     In  general - 1650 

I  332a.  Proof    of   handwriting 1655 


TABLE   OP    CONTENTS  IX 

Page 

§  332b.  Proof  of  messages  by  telephone 165(5 

I  332c.  Proof  of  telegrams 165ti 

§  333.     Evidence  of  books  and  papers  in  the  Executive  Departments. 

In  general    1657 

I  333a.  Evidence  of  books  and  papers  in  the  Treasury  Department.  .  .  1659 
§  333b.  Evidence  of  books  and  papers  in  the  Post  Office  Department.  .  1664 
§  333e.  Evidence  of  books  and   papers  in  the  Department  of  the   In- 
terior.    In  general 1606 

•§  333d.  Evidence  of  books  and   papers  in   the   Land  Office  and  as  to 

land  grants  and  tax  sales 1667 

■§  333e.  Evidence  of  matters  in   the  Patent  Office 167:! 

§  333f.  Copyright    records     1676 

■§  333g.  Evidence  of  books  and  papers  in  the  Pension  Bureau  and  ] ire- 
sumptions   in  pension  cases ; .'l'. . .  1677 

S  333h.  Evidence  uf  proceedings  before  the  Interstate  Commerce  Com- 
mission      1678 

=§  333i.  Evidence    of    official    correspondence 1682 

^  333j.  Evidence  of  proceedings  of  Congress 1683 

-?  333k.  Evidence  of  Federal  statutes 1683 

^  3331.  Evidence  of  books  and  papers  in  consular  offices  and  consular 

certificates   ■  .  .  1685 

§  333m.  Evidence  of  State  and  Territorial  statutes  and  public  records  1688 

?  333n.  Evidence  of  the  records  of  the  State  and  Territorial  Courts..  1689 

§  333o.  Evidence  of  the  records  of  the   Federal  courts 1691 

§  333p.  Presumptions  in  suits  under  the  anti-trust  laws 1691 

§  333q.  Presumptions  under   the   prohibition   law 1695 

§  333r.  Presumptions    as    to    citizenship,    ex]iatriation,    and    unlawful 

entry  into  the  United  States 1696 

:§  333s.  Presumptions    ui>on    the    assessment    and    collection    of    duties 

upon    imports 1701 

§  333t.  Presumptions   upon   the  asses.sment   and   collection   of   internal 

revenue    1702 

§  333u.  Presumptions  upon   distress  sales 1704 

§  333v.  Miscellaneous  statutes  as  to  burden  of  proof  and  prima  facie 

evidence    1705 

§  334.     Definition  and  use  of  an  affidavit. 1709 

§  335.     Manner    of    verifyiu",    :ni    .-iffidavit 1709 

§  336.     Title   of   an   affidavit 1710 

§  337.     Form   of  an   affidavit 1711 

I  338.     Execution  of   an  affidavit 1713 

§  339.     Competency  of  witnesses  in  civil  cases 1714 

§  339a.  Self   incrimination    1723 

§  339b.  Statutory  immunity  and   its  effect 1729 

•§  340.     Subpoena    ad    testificandum 1733 

-§  341.     Siihpcena    duces    tecum 1736 

■•§  342.     Service   of  a  subpoena   ad  testificandum 1740 

•§  343.     Compelling  a   witness   to   testify 1743 


X  TABLE   OF    CONTENTS 

Page 

§  344.     Testimony  taken  in  equity  which  may  be  used  in  other  eourt.s  1746 

g  345.     Bills   to   perpetuate   testimony 1746 

§  346.     Bills   to   take   testimony   ile   bene   esse 1750 

§  347.     Bills    of    discovery 1750 

§  348.     Discovery    in   equity 1754 

§  349.     Inspection    in    equity 1766 

§  350.     Inspection    at    common    law 1768 

§  350a.  Testimony    taken    in   another    suit 1770 

§351.     Testimony  taken  before  a  cause  is  at  issue 1771 

§  352.     Testimony  taken  within  the  jurisdiction  of  the  court  after  a 

cause  is  at  issue 1772 

§  353.     Testimony  taken  after  a  cause  is  at  issue  and  beyond  the  jur- 
isdiction of  the  court 1779 

§354.     Depositions   de   bene   esse    under   the   acts   of   Congress 1780 

§  354a.  Notice    of   taking    deposition 1786 

§  354b.  Proceedings    upon    the    deposition 1788 

§  355.     Form  of  deposition  under  acts  of  Congress 1791 

§  356.     Commissions   issued   under   a   dedimus   potestatem 1795 

§  357.     Proceedings   under   a   dedimus  potestatum 1799 

§  358.     Letters   rogatory    1803 

§  359.     Testimony  taken  in  the  manner  prescribed   by  the   State  law  1807 

CHAPTER  XXII. 

DISMISSAL  or  BILLS  BEFOBE  A  HEABING. 

§  360.     Dismissal  of  bills  before  a  hearing.     In  general 1810 

§  361.     Dismissal  of  bills  by  the  plaintiff 1810 

§  362.     Dismissal  of  bills  for  want  of  prosecution  or  for  failure  to  per- 
fect or  revive  the   suit 1815 

§  363.     Dismissal   for   want   of   jurisdiction 1817 

§  364.     Motions  to   dismiss  because  the  complaint  shows  no  cause   of 

action    18L4 

§  365.     Demurrers  under  the  former  practice 1827 

§  366.     Admissions  by  a  motion  to  dismiss 1827 

§  366a.  Effect  of  conclusions  of  law  upon  motions  to  dismiss 1829 

§  366b.  Effect  upon  a  motion  to  dismiss  of  facts  of  which  the  court 

takes   judicial  notice 1831 

§  367.     Classification    of    demurrers : 1832 

§  368.     Election  and  transfer  to  the  law  side  of  the  court 1836 

CHAPTER  XXIII. 

THE  HEARING. 

§  369.     Bringing  a  suit  to  a  hearing 1841 

§  370.     Judges  who  try  eases  at  law  and  in  equity 1843 

§  371.     Challenge  of  a  judge  for  interest 1846 


TABLE   OF    CONTENTS  XI 

Page 

§  372.  Challenge  of  a  judge   for  prejudice 1847 

§  373.  Arrangement   of   calendar 1851 

§  374.  Manner   of   hearing   a   cause 1852 

§  375.  Eules  of  decision  upon  a  hearing 1853 

§  376.  Objections  which  cannot  be  made  at  the  hearing 1858 

§  377.  Action  of  the  court  upon  a  hearing 1859 

CHAPTER  XXIV. 

ISSUES  AT  LAW. 

§  378.  Power  of  courts  to  direct  issues  at  law 1863 

§  379.  Matters  concerning  which  an  issue  is  directed 1865 

§380.  Time   when   an   issue    is   directed 1865 

§  381.  Manner   of   trying   an   issue 1866 

§  382.  Effect  of  the  finding  of  a  jury  upon  an  issue 1868 

§  383.  Proceedings  after  the  trial  of  an  issue 1870 

CHAPTER  XXV. 

PROCEEDINGS  IN  A  MASTER'S  OFFICE. 

§  384.     References  to  masters.     In  geneial 1871 

§  385.     Who  may  be  appointed  master 1873 

§  386.     Bringing   on    a   reference 1875 

§387.     Parties  entitled  to  attend  a  reference  before  a  master 1876 

§  388.     Proceedings  before  a  master.     In  general 1878 

§  388a.  Instructions  to  masters 1880 

§  389.     Proceedings    upon    accountings 1880 

§  389a.  Accountings  of  profits  in  patent  cases 1885 

§  389b.  Rules  for  computation  of  profits,  and  burdens  of  proof  upon 

patent  accountings   1889 

§  389c.  Deductions   from   profits   in   patent   casi^s 1897 

§  389d.  Interest  upon   profits 1900 

§  389e.  Assessment  of   damages   for  infringement  of  patents 1900 

§  389f.  Appointment    of    liability    between    infringers 1910 

§  389g.  Accounting  for  profits  in  copyright  cases 1911 

§  389h.  Assessment  of  damages  in  copyright  cases 1913 

§  389i.  Accounting  of  profits  and  assessment  of   daniages  in  suits  to 

restrain  infringements   of   trade-marks 1919 

§  390.     A  state  of  facts  and  claim 1921 

§  391.     Evidence    before    a    master 1923 

§  392.     Master 's    report    1925 

§  393.     Exceptions    to   masters '    reports 1926 

§  394.     Judicial  sales  by  masters  and  other  officers 1931 

§  394a.  Proceedings  after  a  sale  and  before   confirmation 1945 

§  394b.  Practice   upon   the  confirmation   of  a   sale 1946 

§  394c.  Effect   of   confirmation   of   a   sale 1949 


xii  .  TABLE   OF    CONTENTS 

Page 

§  394d.  Setting   aside   sale   after  confirmation ^i;  jUiit .  .  .  .  1950 

§  594e.  Setting  aside  sales  because  of   fraud  in  reorganization 1953 

§  394f.  Collection  of  purchase  money  at  a  judicial  sale 1957 

§  394g.  Claims   and   liens   against   purchaser   and  property    sold   at   a 

judicial    sale    1958 

■§  394h.  Eemedies   of  the  purchaser  upon   a   judicial  sale 1962 

§  394i.  Effect  upon  judicial  sale  of  reversal  of  decree 1964 

§  395.     Compensation    of    masters 1964 

CHAPTER  XXVI. 

DECREES. 

•'§  396.     Definition  and  classification  of  decrees 1968 

§  397.     Final    and    interlocutory    decrees ;  1968 

§  398.     Decrees   in   personam 1971 

§  399.     Decrees  m  rem 1973 

§  400.     Absolute  and  conditional   decrees 1974 

§  401.     Decrees  nisi    , '.i./.-i-i-  •. 1977 

5  402.     Decrees  in   the   nature   of   decrees   nisi 1981 

S  403.     Time   of   entry  of   decree 1982 

.  §  404.     Frame    of    decree 1982 

§  405.     Motions  at  the  foot  of   a   decree.  .  l,,>,,,,,.; 1989 

;§  406.     Enrollment    of    decree. 1990 

CHAPTER  XXVII. 

COSTS. 

§  407.     Costs   in   general    1992 

§  408.     Costs   at   common   law 1992 

§  408a.  Costs   in  criminal   proceedings 1997 

§  409.     Costs    in    equity .  1998 

§410.     Costs  in  patent,   copyright   and  trademark   cases 2003 

S  411.     Costs   in   admiralty 2006 

§  412.     Costs   upon    error   and    appeal :  L'!  6. : .  2010 

§  413.     Petitions    for    leave   to    sue   in   forma,   pauperis 2013 

§  414.     Classification    of    costs 2018 

§  415.     Costs  as  between  party  and  party 2018 

§  416.     Attorney 's  fees.     In  general 2018 

§  416a.  Attorneys '    fees   under    Anti-Trust   and    Interstate    Commerce 

laws    2020 

§  416b.  Attorneys '  -fees  under  copyright  law 2021 

§  416e.  Attorneys'  fees  for  collecting  war  risk  insurance 2022 

§  416d.  Attorneys '    docket    fees 2023 

t  416e.  Attorneys'    fees    upon    depositions 2026 

§  417.     Fees  of  clerk  of  Supreme  Court 202S 

§  417a.  Fees  of  clerks  of  Circuit  Courts  of  Appeals 2031 


s 


s 


TABLE   OP    CONTENTS  ^IH 

Page 

§  417b.  Fees  of  clerk  of  Court  of  Customs  Appeals 2034 

§  417c.  Fees   of   clerks   of   District   Courts 2034 

§  418.     Marshal 's    fees    ^'^•*1 

§  418a.  Fees  of  United   States   commissioners 2049 

§  418b.  Fees  of  masters,  referees,  commissioners,  examiners,   notaries, 

auditors    and    consuls    2052 

§  418c.  Stenographers'   fees    2053 

§  419.     Witness   fees    2055 

§  419a.  Disbursements   for   copies   of   papers 2060 

§  419b.  Bills  for  printing  and  lithographing 2061 

S  419c.  Premiums  paid   surety   companies 2063 

g  420.     Miscellaneous    disbursements     2064 

§  421.     Costs   out    of   the    fund 20R6 

§  422.     Costs  as  between   solicitor   and   client 2071 

§  422a.  Attorneys '    liens    -'^''■* 

§  423.     Taxation    of    costs 2076 

§  424.     Apjjeal  from  taxation  of  costs 2078 

§  425.     Security  for  costs -*^'''* 

CHAPTER  XXVIII. 

ENFORCEMENT  OF  DECREES  AND  ORDERS,  INCLUDING   EXECU- 
TIONS, AND  WRITS  OF  POSSESSION  AND  CONTEMPTS. 

§426.     Enforcement  of  decrees  and  orders.     In  general 2084 

S  427.     Executions     2084 

§  428.     Contempts     2096 

§  428a.  Contempt    by    publication 2105 

§  428b.  Perjury  as  a   contempt 2111 

§  428c.  Contempts  in  disobedience  to  orders  by  persons  not  parties..   2114 

§  428d.  Notice  of  a  decree  before  punishment  for  its  violation 2116 

§429.     Courts  in  which  contempt  proceedings  should  be   instituted..   2117 

§  429a.  Time   when   contempt  proceedings   should  be  instituted 21U5 

§  430.     Distinction  between  criminal  and  civil  contempts 2119 

§  430a.  Practice  in  criminal  contempt  proceedings 2123 

§  430b.  Contempt  proceedings  under   the   Clayton  Act   to   punish   acts 

which  constitute  criminal  offenses 2137 

§  430c.  Contempt  proceedings  under  Prohibition   Law. 2140 

§  431.     Civil    contempt    proceedings 2141 

§  432.     Writ  of  attachment   against   the  person 2148 

§  433.     Execution  of  writ   of  attachment 2149 

§434.     Review  of  commitments  for  contempt.     In  general 2152 

§435.     Review  by  Juibeas  corpus  of  commitment  for  contempt 215^ 

§  436.     Review  by  writ  of  error  of  commitment  for  contempt 2154 

§  437.     Review  by  appeal  of  commitment  for  contempt 2157 

§  438.     Review  by  re\isory  petitions  of  commitments  for  contempt  in 

bankruptcy   proceedings    2158 


o 


xiv  TABLE   OF    CONTENTS 

Page 

§  439.     Sequestration     2159 

§  440.     Writ  of  assistance  and  writ  of  possession 2160 

§  441.     Action  by  the  court   itself 2161 

§  442.     Bills   to  carry   decrees   into   execution 2163 

CHAPTER  XXIX. 

CORRECTION  OF  DECREES  OTHERWISE  THAN  BY  APPEA.L. 

§  443.  Correction   of   decrees.      In   general 2166 

§  444.  Amendment  of  decree  without   a  rehearing 2167 

§  445.  Petition  for  a  rehearing 2171 

§  446.  Supplemental  bills  in  the  nature  of  bills  of  review 2177 

§  447.  Bills    of    review     2179 

§  447a.  Bills  of  review  for  errors   of  law 2179 

§  448.  Provisions    peculiar    to    bills    of    review    for    matters    of    fact 

newly    discovered    2184 

S  449.  Provisions  common  to  all  bills  of  review 2188 

§  450.  Bills  in  the  nature  of  bills  of  review 2194 

§  451.  Bills  to  impeach  decrees  on  account  of  fraud,  accident  or  mis- 
take       2195 

§  452.  Bills  to  suspend  or  avoid  the  operation  of  decrees  or  judgments  2198 


VOLUMES  III  AND  IV. 


CHAPTER  XXX. 

PRACTICE   AT  COMMON  LAW  IN  CIVIL  ACTIONS.' 

CHAPTER  XXXI. 

PRACTICE  IN  CRIMINAL  CASES. 

CHAPTER  XXXII. 

REMOVAL  OF  CAUSES. 

CHAPTER  XXXIII. 

ADMIRALTY  AND  SEIZURES. 

CHAPTER  XXXIV. 
BANKRUPTCY. 


TABLE   OF    CONTENTS  XV 

CHAPTER  XXXV. 
COURT  OF  CLAIMS. 

chaptp:r  XXXVI. 

WRITS  OF  ERROR  AND  APPEALS. 


APPENDIX 


I. 

FORMS  IN  CIVIL  CASES  AT  COMMON  LAW  AND  IN  i:(,)UITY. 

II. 

FORMS  IN   CRIMINAL   PROCEDURE. 

III. 

MARSHALS'   AND   CLERKS'   FORMS. 

IV. 

ADMIRALTY  FORMS. 

V. 

EQUITY  RULES. 

VI. 

ADMIRALTY   RULES. 

VII. 

SUPREME  COURT  RULES. 

VIII. 

RULES    OF    THE    CIRCUIT    COURTS    OF    APPEALS.      ADMIRALTY 
RULES   OF   THE   SECOND   AND    NINTH    CIRCUIT. 


XVI  TABLE   OP    CONTENTS 

IX. 

EULES  OF  COURT  OF  CLAIMS. 

X. 

BANKEUPTCY  LAW. 

XI. 

GENEEAL  OEDEES  IN  BANKEUPTCY. 

XII. 

FORMS   IN  BANKEUPTCY. 

XIII. 

TABLE  OF   CASES. 
Citations : 

U.   S.    Constitution 

U.  S.  Revised  Statutes 

Statutes    at   Large 

Judicial  Code 

Equity  Rules 

Supreme  Court  Eules 

Admiralty  Rules 

Admiralty  Rules,    Second   Circuit   Court   of   Appeals 

Eules  of  Circuit  Court  of  Appeals 

Eules  of  Court  of  Claims 

Eules  of  Appeals  from  Court  of  Claims 

General   Order   in   Bankruptcy. 

INDEX. 


FEDERAL  PRACTICE 

VOLUME  II. 

CHAPTER  X. 

CROSS-BILLS,  SET-OFFS   AND  COLWTEK-CLAIMS. 

§197.  Definition  and  origin  of  cross-bills.  A  eross-bill  is  a 
bill  filed  by  a  defendant  in  a  suit  in  equity  against  one  or  more 
of  the  Other  parties,  in  order  to  obtain  either  discovery  of  facts  in 
aid  of  his  defense,  or  complete  relief  to  all  parties  as  to  the  mat- 
ters charged  in  the  original  bill.^  It  is  auxiliai*>'  to  the  origi- 
nal suit  and  dependent  thereon.^  It  was  borrowed  through  the 
canon,  from  the  reconventio  of  the  civil  law,^  and  from  it  is 
derived  the  counter-claim  of  code-pleading.* 

It  was  originally  used  chiefly  for  the  purposes  of  set-off  and 
discovery,  which  modern  statutory  enactments  make  it  possible 
to  obtain  in  a  simpler  way ;  but,  except  in  a  few  cases,  without 
one  no  relief  could  be  obtained  by  a  defendant  against  the  com- 
plainant in  the  same  suit,^  beyond  what  resulted  necessarily  from 

§197.     1  Nelson,    J.,    in   Ayres   v.  Tenn.  147;   s.  c,  20  S.  W.  571;  In- 

Carver,  17  How.  591,  595,  15  L.  ed.  ternatioual  Tooth  Crown  Co.  v.  Car- 
179,  180;  Springfield  M.  Co.  v.  Bar-  '    miehael,  44  Fed.   350;    Stanwood   v. 

nard,  C.  C.  A.,  81  Fed.  261.  Des    Moines    Sav.    Bank,    C.    C.    A., 

2U.    S.   V.    Eeese,    166   Fed.   347;  178  Fed.  670;    Asbestos  Shingle,  S. 

Lovell   V.    Latham   &   Co.,   186   Fed.  &   S.    Co.   v.    H.   W.   Johns-Manville 

602,  s.  c,  211  Fed.  .'^74.  Co.,    189   Fed.   611,   613;    Taylor_  v. 

3  Story's  Eq.  PI.,  §402;  Lang-  Herndon,  C.  C.  A.,  194  Fed.  946; 
dell's  Eq.  PI.  §§152,  154.  Mitchell    v.    International    Tailoring 

4  See  Brande  v.  Gilchrist,  18  Fed.  Co.,   169  Fed..  145. 

465.  Where    the    plantinff 's    right    de- 

SCarnoehan  v.  Christie,  11  Wheat.  pended  upon  an   instrument   or  con- 

446,  6  L.  ed.  516;   Ford  v.  Douglas,  veyance  which  is  not  void,  but  mere- 

5  How.  143,  12  L.  ed.  89;  Chapin  v.  ly  voidable  on  account  of  fraud,  or 

Walker,  6  Fed.  794;   Brande  v.  Gil-  otherwise,    the    defendant    could    in 

Christ,  18  Fed.  465;  Denver  &  R.  G.  most    cases    only    set    up    the    facts 

Ry  Co.  v.  Denver,  S.  P.  &  P.  R.  Co.,  showing   its    invalidity    by    a   cross- 

17    Fed.    867;     Lewis    v.    Glass,    92  liill.    Ford  v.   Douglas,  5  How.  143, 
F,'<1.    Piac.  Vol.  II— 1             1125 


1126 


CROSS-BILLS,    SET-OFFS   AND   COUNTER-CLAIIMS 


[§197 


the  denial  of  the  prayer  of  the  original  bill.^  The  ordinary  eases 
ill  which  a  defendant  could  obtain  relief  without  a  cross-bill 
were:  suits  for  an  account,'  for  the  specific  performance  of 
contracts,^  to  compel  the  issue  of  patents  in  cases  of  interfer- 


12  L.  ed.  89;  Langdell's  Eq.  PI., 
§131;  Jacobs  v.  Eiehard,  18  Beav. 
300;  Beddoes  v.  Pugh,  26  Beav.  407, 
416,  417;  Holderness  v.  Kankin,  2 
De  Gex,  P.  &  J.  258;  Eddleston  v 
Collins,  3  De  Gex,  M.  &  G.  1,  16; 
Chapin  v.  Walker,  2  McCrary,  175; 
Mauley  v.  Mickle,  55  N.  J.  Eq.  563; 
s.  c,  37  Atl.  738.  But  see  Dayton 
V.  Melick,  27  N.  J.  Eq.  (12  C.  E. 
Green),  362;  Pitts  v  Powledge,  56 
Ala.  147;  Kennedy  v.  Green,  3  My, 
&  K.  699,  718;  Eyry  v.  Hughes,  2 
Ch.  D.  148;  Osborne  v.  Barge,  30 
Fed.  805;  Green  v.  Turner,  80  Fed. 
41. 

So  where  the  defendant  contended 
that     a    contract    upon    which    the 
]daintiff   relied   did  not  express  the 
true  agreement  between  the  parties; 
he    was    required,    except    when    the 
bill  prayed   specific  performance,  to 
file  a   cross-bill  for  the  reformation 
of  the  contract.     Commonwealth   T. 
T.  &  Tr.  Co.  V.  Cummings,  83  Fed. 
767;    Green  v.   Stone,  54   N.   J.  Eq. 
387,  55  Am.  St.  Eep.  577,  s.  c,  34 
Atl.  1099.     In  a  suit  to  set  aside  a 
contract,    the    defendant    could    not 
have  the  contract  enforced  unless  he 
filed   a  cross-bill,   Meissner  v.  Buck, 
28  Fed.  161;  Carnochan  v.  Christie, 
11   Wheat.  446,  447,   6  L.   ed.   516; 
when  in  a  proper  case  he  could  also 
ol)tain   a   decree   declaring   the   con- 
tract   to   be    void.      La    Dow    v.    E. 
Bement  &  Sons,  66  Fed.  198;   Dug- 
gar  v.  Denipsey,  43  Pac.  357;   s.  c, 
13  Wash.  396;   Bernhard  v.  Brnnor, 
65  111.  App.   641;   North  British  L. 
&  N.  Ins.  Co.  v.  Lathrop,  C.  C.  A., 
70  Fed.  429. 

It  has  been  held  that  a  discharge 
in      bankruptcy      pending      a      suit 


(  B  a  n  q  u  e  Franco-Egyptienne  v. 
Brown,  24  Fed.  106,  107),  the  right 
to  equitable  set-off  (Meek  v.  Mc- 
Cormick  (Tenn.  Ch.),  42  S.  W.  458. 
See  Carlwright  v.  Clark,  4  Mete. 
(Mass.)  104;  Derby  v.  Gage,  38  111. 
27),  the  right  of  sureties  to  subro- 
gation (Stokes  v.  Little,  65  111.  App. 
255),  and  an  agreement  to  settle  the 
litigation,  made  pending  the  suit 
(Snyder  v.  De  Forest  Wireless  Tele- 
graph Co.,  154  Fed.  142),  can  only 
be  pleaded  by  a  defendant  in  a 
cross-bill.  In  such  cases,  the  cross- 
bill is  in  the  nature  of  a  supple- 
mental bill.     Infra,  §  231. 

A  decree  dismissing  a  bill  to  en- 
join an  action  of  ejectment  cannot 
determine  the  title  to  the  land  in 
the  absence  of  a  cross-bill.  Wood 
v.  Collins,  60  Fed.  139.  But  it  has 
been  held  that  a  defendant  who  is 
not  in  possession  oi  land,  when  a 
bill  is  filed  against  him  to  remove 
a  cloud  to  the  title  to  the  same,  may, 
if  he  can  show  a  better  title  than 
that  of  the  complainant,  obtain  pos- 
session of  the  land  by  cross-bill. 
Greenwalt  v.  Duncan,  16  Fed.  35. 

6  Langdell  's  Eq.  PI.,  §  123.  See 
Hilton  V.  Barrow,  1  Vesey  Jr.  284. 

7  Clarke  v.  Tipping,  4  Beav.  588; 
Toulmin  v.  Reid,  14  Pea  v.  499;  Jer- 
vis  V.  Berridge,  L.  R.  8  Ch.  357; 
Campbell  v.  Campbell,  4  Halst.  Eq. 
(N.  J.)  740;  Little  v.  Merrill,  62 
Me.  328.  Brown  v.  Crawford,  252 
Fed.  248;  Anderson  v.  Hultberg,  C. 
C.  A.,  247  Fed.  273. 

8  Fife  V.  Clayton,  13  Ves.  546; 
Stapylton  v.  Scott,  13  Ves.  425; 
Bradford  v.  Union  Bank  of  Tenn., 
13  How.  57,  14  L.  ed.  49;  Northern 
R.  Co.  V.  O.  &  L.  C.  R.  Co.,  18  Fed. 


§  197] 


DEFINITION    OF    CROSS-BILL 


112- 


ence,^  contribution  between  co-defenclants,^*^  and  in  a  few  in- 
stances for  incidental  and  collateral  questions  between  defend- 
ants,^^ or  when  it  was  possible  to  give  tlie  i)laintift"  tbe  relief  to 
which  he  was  entitled  without  iirst  deciding  a  question  between 
them.*2  ]sJq  cross-bill  was  necessary-  for  such  relief  as  might  be 
allowed  a  defendant  by  means  of  a  conditional  decree  imposing 
terms  upon  the  comi)lainaiit  in  accordance  with  the  maxim  that 
"he  who  seeks  c(|uity  must   do  etpiity."^^ 

The  subject  matter  of  the  cross-bill  must  be  germane  to  that  of 
the  original  bill."  Ft  has  been  said  that :  "  A  cross-bill  cannot  be 
made  an  original  bill  in  the  same  cause  nnless  the  subject  matter 
is  germane  to  the  original  bill."  ^^  A  cross-bill  cannot  interpose 
new  controversies  between  the  defendants  to  the  original  bill,  a 
decision  of  which  is  unnecessary  to  a  complete  determination  of 
the  controversies  between  the  complainant  and  the  defendants 
over  the  subject-matter  of  the  original  bill.^^     The  fact  that  in 


815.  But  see  s.  G.,  20  Fed.  347. 
Sec  Newton  v.  Gage,  155  Fed.  598; 
Dettcring  v.  Nordstrom  (C.  C.  A.), 
148  Fed.  81.  In  a  suit  for  specific 
performance  wlicrc  the  defendant 
liled  a  cross-ljill  for  a  rescission  the 
court  allowed  a  rescission  as  of  the 
date  of  the  decree  leaving  to  either 
party  the  right  to  sue  at  law  for 
damages  because  of  a  breach  of  the 
contract.  Southern  Lumber  Corp.  v. 
Doyle,  204  Fed.  829. 

9  Lockwood  v.  Cleveland,  fi  Fed. 
721;  Foster  v.  Lindsay,  3  Dill.  127; 
Electrical  Aecum,  Co.  v.  Brush  El. 
Co.,  44  Fed.  602.  But  niny  be  filed 
if  the  defendant  so  cliooses.  Ameri- 
can C.  B.  Co.  V.  Ligowski  C.  P.  Co., 
31  Fed.  466;  Electrical  Aecum.  Co. 
V.  Brush  El.  Co.,  44  Fed.  602,  607. 
Contra,  Lockwood  v.  Cleveland,  0 
Fed.  721,  727. 

10  La  Touche  v.  Lord  Dunsany,  1 
Sch.  &  Lef.  137,  166,  167;  s.  c,  as 
Chamley  v.  Lord  Dunsany,  2  Sch.  & 
Lef.  690,  718;  Langdell's  Eq.  PI., 
8125. 

11  Federal  M.  &  S.  Co.  v.  Bunkt>r 
Hill   &   Sullivan    M.   &    C.    Co.,    187 


Fed.  474;  Hood  v.  Clapham.  19 
Beav.  90.  See  Elliott  v.  Pell,  i 
Paige   (N.  Y.)    263. 

12  Langdell's  Eq.  PI.,  §125. 

13  Farmers'  L.  &  Tr.  Co.  v.  Den- 
ver, L.  &  G.  R.  Co.  (C.  C.  A.),  126 
Fed.  46;   supni,  §153;  infra,  §400. 

14  Bowker  v.  U.  S.,  186  U.  S.  135, 
46  L.  ed.  1090;  Great  Northern  Ey. 
Co.  V.  Western  Union  Tel.  Co.,  C. 
C.  A.,  174  Fed.  321;  Lovell  v.  Lath- 
am &  Co.,  186  Fed.  602;  U.  S.  Light 

6  Heating  Co.  v.  J.  B.  M.  El.  Co., 
C.  C.  A.,  194  Fed.  866;  Le<ll>etter  v. 
Mandell,  141  App.  Div.  (N.  Y.)  556, 
558,  affirmed  205  N.  Y.  537;  Great 
Nortliern  Ry.  Co.  v.  Western  Union 
Tel.  Co.,  174  Fed.  321;  Miller  v.  Uhl- 
man,  198  Fed.  233;  Langdell's  Eq. 
PI.,  §124;  Daniell's  Ch.  Pr.  (5tli 
Am.  ed.)   1550;   Field  v.  Schieffelin, 

7  J.  Ch.  (N.  Y.)  250,  11  Am.  Dec. 
4-1  L 

15  A.  M.  Car  &  Foundry  Co.  v. 
Merchant's  Disp.  Tran^p.  Co.,  216 
Fed.  904,  911. 

16  Landon  v.  Public  Utilities  Com- 
mission, 234  Fed.  152,  168. 

Where    a    bill    was    filed    by    one 


1128 


CROSS-BILLS,    SET-OFFS   AND    COUNTER-CLAIMS 


[§197 


the  determination  of  the  controversy  it  may  become  necessary 
^^  consider  questions  similar  to  those  involved  in  an  independent 


to 


tenant  in  common  of  a  mortgage 
against  the  two  others,  who  had 
bought  in  separate  parcels  the  mort- 
gaged property,  the  complainant 
seeking  to  recover  from  them  his 
share  of  the  purchase-money;  it  was 
lield  that  a  cross-bill  could  not  be 
filed  by  one  defendant  against  the 
other  to  recover  a  balance  due  him 
' '  resulting  from  the  price  severally 
paid  and  to  be  paid  by  them,  as 
compared  with  the  respective 
amounts"  of  their  interests  in  the 
mortgage.  Weaver  v.  Alter,  3 
Woods,  152.  Where  a  receiver  of 
a  bank  filed  a  bill  to  set  aside  a 
transfer  of  shares  of  its  stock  by 
one  defendant  to  another,  and  to 
hold  the  transferor  liable  to  the 
creditors  of  the  bank;  it  was  held 
that  the  transferee  could  not  file  a 
cross-bill  to  set  aside  the  transaction 
as  between  the  transferor  and  him- 
self so  that  he  might  be  repaid  the 
purchase  price  and  be  relieved  from 
liability  to  the  creditors  of  the  bank- 
rupt. Stuart  V.  Hayden,  C.  C.  A., 
72  Fed.  402.  Where  a  bankrupt's 
trustee  sued  to  set  aside  a  preferen- 
tial transfer,  making  as  defendants 
unknown  persons  who  had  or  claimed 
to  have  a  right  or  interest  in  the 
subject  matter  of  the  suit ;  the  court 
dismissed  a  cross-bill  filed  by  inter- 
venors  who  sought  to  impress  a 
trust  in  their  favor  upon  property 
in  the  hands  of  the  trustee.  Lovell 
V.  Latham  &  Co.,  211  Fed.  374.  In 
a  suit  by  a  depositor  against  a  bank 
to  recover  the  amount  of  checks 
paid  on  forged  indorsements,  it  was 
held  that  defendant  could  not  file 
a  cross-bill  against  a  second  bank 
seeking  to  recover  over  in  case  it 
was  held  liable  to  plaintiff.     Pollard 


V.  Wellford,  99  Tenn.  113,  42  S.  W. 

23. 

Where  a  bill  was  filed  against  the 
stockholders  of  an  insolvent  corpo- 
ration to  collect  out  of  their  unpaid 
subscriptions  the  amount  of  a  judg- 
ment against  it,  a  cross-bill  filed  by 
one  who  had  paid  a  larger  propor- 
tion of  his  subscription  than  the 
rest,  praying  for  an  accounting,  and 
that  the  others  be  compelled  to  pay 
the  judgment;  was  held  bad  upon 
demurrer.  Putnam  v.  New  Albany, 
4  Biss.  365,  373.  Where  a  bill  was 
filed  by  a  remainderman  under  a 
will,  contending  that  certain  provi- 
sions of  the  will  establishing  estates 
prior  to  his  own  were  invalid,  and 
praying  that  the  trustees  appointed 
by  the  will  convey  the  property  de- 
vised either  to  him,  or  to  the  heirs- 
at-law,  or  to  the  State;  a  bill  filed 
by  the  heirs-at-law,  not  impugning 
the  estate  of  the  equitable  tenant 
for  life,  but  praying  that  the  es- 
tates in  remainder,  some  of  which 
were  to  persons  yet  unborn,  should 
be  declared  invalid,  was  held  im- 
proper as  a  cross-bill.  Cross  v.  I)e 
Valle,  1  Wall.  5,  17  L.  ed.  515.  See 
Neal  V.  Foster,  34  Fed.  496,  498; 
Osborne  v.  Barge,  30  Fed.  805. 

In  a  suit  by  an  administrator  to 
recover  assets  it  was  held  that  a 
cross-bill  was  demurrable  which 
sought  an  accounting  of  the  admin- 
istration of  the  estate  of  the  intes- 
tate 's  father;  although  that  would 
have  resulted  in  increasing  the  es- 
tate held  by  the  plaintiff  and  all 
the  necessary  parties  were  before 
the  court.  Harrison  v.  Perea,  168 
U.  S.  311,  42  L.  ed.  478;  s.  c,  as 
Perea  v.  Harrison,  7  N.  H.  666,  41 
Pac.   529.     Where  to  a  bill  for   the 


§197] 


DEFINITION    OP    CROSS-BILL 


1129 


controversy  between  the  defendants,  does  not  justify  a  cross- 


cancellation  of  certain  certificates  of 
stock  because  unlawfully  issued,  the 
defendants  alleged  by  a  crossbill 
that  defendant  corporation  had  de- 
cided to  cease  the  manufacture  of 
goods  for  a  time,  and  that  complain- 
ants had  directed  the  concern  to 
continue  operations,  and  asked  to 
have  complainants  restrained  from 
further  interference;  it  was  held 
that  the  cross-bill  should  be  stricken 
out  as  foreign  to  tlie  subject-matter 
of  the  original  bill.  Allen  v.  Fury, 
53  N.  J.  Eq.  35,  30  Atl.  551.  On 
a  suit  to  restrain  the  enforcement 
of  a  judgment,  and  to  establish  as 
a  set-off  a  legal  claim,  a  cross-bill 
seeking  a  settlement  of  a  partner- 
ship alleged  to  have  formerly  ex- 
isted between  the  parties  was 
stricken  out  as  foreign  to  the  sub- 
ject-matter of  the  original  bill. 
O'Neill  V.  Ferryman,  102  Ala.  522, 
14  So.  Eep.  898.  Where  a  bill  was 
filed  to  restrain  a  sale  under  an  exe- 
cution, the  defendant  was  allowed 
to  file  a  cross-bill  praying  a  decree, 
declaring  that  he  had  a  lien  upon 
the  i)roperty  on  which  he  had  levied, 
appointing  a  receiver,  and  directing 
the  sale  of  such  property.  Chicago, 
M.  &  St.  F.  Ey.  Co.  v.  Third  Nat. 
Bank,  134  U.  S.  276,  33  L.  ed.  900. 
See  Remer  v.  McKay,  38  Fed.  164. 
Where  the  mortgagee  filed  a  bill  to 
collect  rents  from  a  lessee  and  a 
sublessee  of  the  mortgaged  railroad, 
and  for  a  declaration  that  the  lease 
was  binding  upon  the  sublessee,  a 
cross-bill  by  the  lessee  against  the 
mortgagor,  who  was  a  defendant  to 
the  original,  seeking  a  cancellation 
of  the  lease,  was  held  properly  filed. 
Jesup  V.  Illinois  Cent.  R.  Co.,  43 
Fed.  483.  It  has  been  held:  that 
a   cross-bill   may   be   filed   in   a   suit 


to  foreclose  a  mechanic 's  lien,  for 
the  cancellation  of  the  record  of  the 
lieu  with  damages  for  a  breach  of 
the  mechanic's  contract  (Springfield 
M.  C.  V.  Barnard  S.  Mfg.  Co.,  81 
Fed.  261)  ;  in  a  suit  to  foreclose  a 
vendor 's  lien,  for  the  foreclosure  of 
a  subsequent  vendor's  lien  after  the 
cross-comj)lainant  has  secured  the 
payment  of  the  amount  due  the 
original  plaintiff  (Cox  v.  Price,  2 
Va.  Ffec.  170,  22  S.  E.  512)  ;  in  a 
suit  for  the  cancellation  of  a  lease 
for  the  return  of  property  delivered 
thereunder  (Fullman's  P.  C.  Co.  v. 
Central  Tr.  Co.,  171  U.  S.  138,  43 
L.  ed.  108)  ;  in  a  suit  by  a  street 
railway  company  to  enjoin  a  city 
from  forfeiting  a  franchise,  by  a 
mortgagee  for  the  appointment  of  a 
leeeiver  to  borrow  the  funds  needeil 
for  payment  to  prevent  the  for- 
feiture. Union  Street  Ry.  Co.  v. 
City  of  Saginaw,  115  Mich.  300,  73 
N.  W.  243.  Where  an  insurance 
company  had  procured  an  injunc- 
tion against  a  suit  upon  a  policy 
which  contained  a  limitation  clause, 
the  court  sustained  a  cross-bill  for 
a  recovery  of  the  amount  of  the  pol- 
icy on  the  ground  that  a  State  court 
of  common  law  might  hold  that  the 
injunction  did  not  extend  the  period 
for  bringing  suit.  North  B.  &  M. 
In.s.  Co.  V.  Lathrop,  C.  C.  A.,  63 
Fed.  508.  In  a  suit  to  foreclose  a 
mortgage,  given  to  secure  a  note 
for  the  price  of  property  sold;  it 
was  held,  that  an  answer  setting  up 
fraud  in  the  inducement  of  the  sale 
as  a  defense  to  the  note,  and  a 
cross-bill  for  a  rescission  of  the  con- 
tract, because  of  the  same  fraud, 
were  not  inconsistent.  Richardson 
V.  Lowe,  C.  C.  A,,  149  Fed.  625. 


1130 


CROSS-BILLS,    SET-OFFS   AND    COUNTER-CLAIMS 


[§198 


bill.^'''  In  a  suit  by  the  receiver  of  a  natural  gas  company  against 
State  officers  and  distributing  gas  companies  to  enjoin  the  en- 
forcement of  an  order  of  a  State  Commission  fixing  the  charges 
for  gas  at  a  rate  alleged  to  be  unreasonably  low,  it  was  held :  that 
a  cross-bill  by  one  of  the  distributing  gas  companies  praying  to 
set  aside  an  order  fixing  the  price  for  distributing  the  gas  could 
not  be  maintained. ^^ 

§  198.  Counter-claims.  In  the  New  York  Code  of  Procedure,^ 
David  Dudley  Field  substituted  a  counter-claim  for  a  cross-bill. 
His  reform  was  adopted  in  the  English  Judicature  Act.^  The 
new  Equity  Rules  have  followed  these  precedents  and  provide: 
that  the  answer  "may,  without  cross-bill,  set  out  any  set-off  or 
counter-claim  against  the  plaintiff  which  might  be  the  subject  of 
an  independent  suit  in  equity  against  him,  and  such  set-off  or 
counter-claim,  so  set  up,  shall  have  the  same  effect  as  a  cross- 
suit,  so  as  to  enable  the  court  to  pronounce  a  final  judgment  in 
the  same  suit  both  on  the  original  and  cross-cl&ims."  '  If  the 
counter-claim  is  one  which  affects  the  rights  of  other  defendants 
they  or  their  solicitors  shall  be  served  with  a  copy  of  the  same 
within  ten  days  from  the  filing  thereof. ' '  * 


17  Landon  v.  Public  Utilities 
Comm'n,  234  Fed.   152,  168. 

18  Ibid. 

§  198.  1  N.  Y.  Laws  of  1848,  ch. 
379,  S  128. 

2  36  Vic.  c.  66,  §  24,  Order  XXI. 

3  Eq.  Eule,  30. 

4  Eq.  Rule  31.  Under  the  former 
practice  in  a  case  where  the  origi- 
nal bill  prayed  a  confirmation  of  a 
title  under  a  deed  absolute  in  form, 
a  cross-bill  by  one  of  the  defend- 
ants, claiming  that  the  deed  be  de- 
clared a  trust  deed  for  her  sole  ben- 
efit, was  held  to  be  germane  to  the 
subject-matter  of  the  suit,  and  suf- 
ficient to  support  a  decree  binding 
the  other  defendants  as  well  as  the 
plaintiff.  Kingsbury  v.  Buckner, 
134  U.  S.  6.50,  677,  33  L.  ed.  1047, 
1057.  See  Griffin  v.  -Griffin,  112 
Mich.  87,  70  N.  W.  423;  Feige  v. 
Babcock,  111  Mich.  538,  70  N.  W.  7. 


A  defendant  to  a  foreclosure  suit 
may  file  a  cross-bill,  to  enforce  an 
agreement  by  a  codefeudant  to  con- 
vey him  part  of  the  mortgaged 
premises.  Peacock,  Hunt  &  West 
Co.  V.  Thaggard,  128  Fed.  1005. 
Upon  a  bill  to  set  aside  deeds,  the 
grantors  and  grantees  of  which 
were  defendants,  the  court  allowed 
a  crossbill  by  the  grantees  against 
their  codefendant,  the  grantor,  for 
the  recovery  of  the  purchase  money 
paid  by  them  for  the  land,  and  for 
the  cancellation  of  notes  given  for 
deferred  payments,  in  case  the  deeds 
should  be  set  aside.  Craig  v.  Door, 
C.  C.  A.,  145  Fed.  307.  In  suits  to 
establish  and  protect  water  riglits 
against  separate  appropriators  of 
water  from  the  same  stream,  cross- 
bills were  allowed  between  the  sev- 
eral defendants  to  protect  their  re- 
spective  rights   against   each    other. 


§  198] 


eOUNTER-CLAIMS 


1131 


These  rules  impose  no  penalty  for  a  failure  to  state  a  counter- 
claim arising  out  of  the  transaction  which  is  the  subject-matter 
of  the  suit,  but  by  implication  they  forbid  its  assertion  in  an 
independent  suit,  and  a  judgment  against  the  d. 'fondant  would 
undoubtedly  be  a  bar  to  any  subsequent  attempt  to  i.ss?i-t  one.^ 

It  has  been  held:  that  the  set-off  or  counter-claim  must  be  one 
which  might  be  the  subject  of  an  independent  suit  in  ecpiity 
in  the  same  district ;  ^  and  that,  consequently,  in  a  suit  for  tke 
infringement  of  a  patent  the  defendant  cannot  by  cross-bill 
obtain  relief  for  another  infringement,  of  which,  because  of  the 
residence  of  the  defendant,  the  court  could  not  have  taken  origi- 
nal jurisdiction  J  But  there  is  a  contrary  decision  by  a  Circuit 
Court  of  Appeals  upon  the  same  point.*     And  where  the  com- 


Ames  Kealty  Co.  v.  Big  Indian  Min. 
Co.,  1-16  Fed.  166;   Miller  &  Lux  v. 
Rickey  Land  &  Cattle  Co.,  146  Fed. 
574.     But   it   was   held  that    cross- 
bills by  the  defendants  against  the 
complainant,    asserting   their    rights 
and    seeking    for    affirmative    relief 
were   demurrable.      Miller  &   Lux  v. 
Rickey  Land  &  Cattle  Co.,  146  Fed. 
574;  Van  Vibbler  v.  Hilton,  84  Cal. 
585,  24  Pac.  308.    In  a  suit  to  fore- 
close a  mortgage,  it  was  held  that 
a   defendant  holding   another  mort- 
gage on  the  same  and  other  prop- 
erty might,  by  cross-bill,  obtain  af- 
firmative   relief    against    other    de- 
fendants, judgment  creditors  of  the 
mortgagor,    and    thus    establish    the 
validity    of    his     mortgage.       First 
Nat.   Bank   v.   Salem   Capital   Flour 
Mills  Co.,  31  Fed.  580.    But  a  cross- 
bill was  not  allowed  upon  a  credit- 
or's bill,  when  the  defendant  souglit 
thus  to  have  .■adjusted  the  indebted- 
ness   between    themselves.      Vanncr- 
son  V.  Leverett,  31  Fed.  376.   Where 
the  mortgagee  filed  a  bill  to  collect 
rents  from  a  lessee  and  a  sublessee 
of  the  mortgaged  railroad,  and  for 
a    declaration    that    the    lease    was 
binding  upon  the  sublessee,  a  cross- 


bill by  the  lessee  against  the  mort- 
gagor, who  was  a  defendant  to  the 
original,  seeking  a  cancellation  of 
the  lease,  was  held  properly  filed. 
Jesup  v.  Illinois  Cent.  E.  Co.,  43 
Fed.  483.  It  was  said  that  where  an 
original  bill  sought  to  enforce  an 
equitable  title  against  several  de- 
fendants, it  was  improper  for  a  de- 
fendant to  file  a  cross-bill  seeking 
the  enforcement  of  a  title  para- 
mount against  his  codefendants. 
Ayres  v.  Carver,  17  How.  594,  15 
L.  ed.  179;  Portland  Wood  Pipe  Co. 
v.  Slick  Bros.  Const.  Co.,  222  Fed. 
528;  Calfiseh  v.  Humble,  C.  C.  A., 
251  Fed.  1. 

5  Odgcr  's  Pleading,  4th  ed.  pp. 
228-230,  supra,  §  186. 

6  Coleman  v.  Am.  Warp  Drawing 
Mach.  Co.,  235  Fed.  531. 

7  Ibid.  McGill  v.  Son'uson,  21)9 
Fed.   876. 

8  U.  S.  Expansion  Bolt  Co.  v.  H. 
G.  Kroncke  Hardware  Co.,  C.  C.  A., 
234  Fed.  868;  Buffalo  Specialty  Co. 
V.  Vancleef  et  al.,  217  Fed.  91,  per 
Sanborn,  J.:  "Many  questions  are 
being  raised  in  the  distrift  courts 
as  to  the  proper  construction  of  Rule 


1132 


CROSS-BILLS,    SET-OFFS   AND    COUNTER-CLAIMS 


[§198 


plainant  sued  to  cancel  notes  in  a  district  of  which  neither  part} 
was  a  resident,  the  defendant  was  allowed  by  cross-bill  to  collect 
the  notes.^ 


30,  and  there  has  been  conflict  of 
opinion  which  will  probably  con- 
tinue. As  I  look  at  the  matter,  the 
rule  is  quite  clear  and  easy  to  in- 
terpret. It  is  quite  similar  to  sec- 
tion 3  of  order  19  of  the  English 
orders  (Statutory  Eules  and  Orders 
of  1912,  p.  1781;  Annual  Practice 
of  1908,  p.  234).  The  two  rules  fol- 
low: 

9  Howard  v.  Leete,  C.  C.  A.,  257 
Fed.  918. 

'  *  English  rule : 

"  'A  defendant  in  an  action  may 
set  off,  or  set  up  by  way  of  counter- 
claim against  the  claims  of  the 
plaintiff,  any  right  or  claim,  whether 
such  setoff  or  counterclaim  sound 
in  damages  or  not,  and  such  set-off 
or  counter-claim  shall  have  the  same 
effect  as  a  cross-action,  so  as  to  en- 
able the  court  to  pronounce  a  final 
judgment  in  the  same  action,  both 
on  the  original  and  on  the  cross 
claim.  But  the  registrar  or  the 
judge  may,  on  the  application  of 
the  plaintiff  before  trial,  if  in  the 
opinion  of  the  registrar  or  judge 
such  set-off  or  counterclaim  cannot 
be  conveniently  disposed  of  in  the 
pending  action,  or  ought  not  to  be 
allowed,  refuse  permission  to  the 
defendant  to  avail  himself  there- 
of.' "     After  quoting  Rule  30. 

"It  will  be  seen  that  Rule  30  re- 
quires defendant  tx)  set  up  any 
counterclaim  which  arises  out  of  the 
transaction  forming  the  subject- 
matter  of  the  bill,  but  allows  with- 
out requiring  him  to  set  up  any  equi- 
table counterclaim  or  set-off  which 
might  be  the  subject  of  an  indepen- 
dent suit  by  defendant  against  plain- 


tiff. The  language  is  perfectly 
clear :  If  defendant  has  an  inde- 
pendent cause  of  action  in  equitj 
against  plaintiff,  he  may  counter- 
claim it.  If  any  corroboration  of 
this  view  were  needed,  it  is  found 
in  the  fact  that  the  Supreme  Court, 
in  adopting  the  rule,  omitted  the 
last  clause  of  the  English  rule  which 
restricts  counterclaims  to  those 
which  can  be  conveniently  disposed 
of  and  those  which  ought  to  be  al- 
lowed. Not  only  was  any  set-off  or 
counterclaim  which  may  be  the  sub- 
ject of  an  independent  suit  in- 
cluded, but  an  exception  was  re- 
jected. Moreover,  it  has  always 
been  held  by  the  English  courts  that 
independent  causes  of  action,  wholly 
unconnected  with  the  claim  of  the 
plaintiff,  may  be  counterclaimed. 
Birmingham  Estates  Co.  v.  Smith, 
13  Ch.  D.  506,  509.  Nor  is  a  coun- 
terclaim to  be  excluded  because 
plaintiff  is  a  foreigner  who  could 
not  be  sued  in  England.  By  in- 
voking the  jurisdiction,  he  consents 
to  be  sued  there  by  counteraction, 
unless  plaintiff  be  a  sovereign,  not 
suable  without  its  consent.  Griend- 
tovan  V.  Hamlyn  &  Co.,  8  L.  T.  R. 
231;  Strousberg  v.  Costa  Rica  Re- 
public, 29  W.  R.  125,  Ch.  App.;  Im- 
perial Japanese  Govt.  v.  P.  &  O.  Co., 
(1895)  A.  C.  644,  P.  C.  Nor  is  the 
amount  recoverable  by  counterclaim 
limited  by  the  jurisdiction  of  the 
court  (Amon  v.  Babbett,  22  Q.  B. 
D.  543,  Ch.  App.),  unless  objection 
is  made  by  giving  written  notice,  as 
required  by  the  Judiciary  Act  of 
1873.  By  adopting  the  English  rule, 
its  construction  in  England  is  adopt- 


§  198] 


COUNTER-CLAIMS 


1133 


It  has  been  held:  that  the  words,  "which  might  be  the  subject 
of  an  independent  suit  in  equity  against"  the  plaintiff  and  the 


ed,  at  least  to  the  extent  of  exclud- 
ing construction  at  variance  with 
plain  and  explicit  language.  Under 
such  circumstances,  the  clear  mean- 
ing of  the  words  should  not  be  re- 
jected on  account  of  supposed  incon- 
venience in  applying  the  rule. 

"It  is  said  in  argument  that  it 
could  not  have  been  the  intention 
of  the  rule  to  compel  a  nonresident 
I)laintiff  to  submit  to  cross-suits  in 
districts  foreign  to  his  residence, 
and  thus  run  counter  to  express 
statutes,  like  section  51  of  the  Ju- 
dicial Code  (Act  March  3,  1911,  c. 
2;il,  36  Stat.  1101  fU.  S.  Comp.  St. 
Supp.  1911,  p.  150]),  or  the  Act  of 
March  3,  1897,  c.  395,  29  Stat.  695 
(U.  S.  Comp.  St.  1901,  p.  588),  re- 
lating to  place  of  suit.  Section  51 
provides  that  civil  suits,  other  than 
those  of  diverse  citizenship,  shall 
only  be  brought  in  the  district  where 
defendant  inhabits,  the  others  only 
in  the  district  of  the  residence  of 
either  party.  The  act  of  1897  ap- 
plies only  to  patent  cases,  and  pro- 
vides that  the  court  shall  have  juris- 
diction only  in  the  district  where 
defendant  inhabits,  or  where  he  has 
committed  infringement  and  has  an 
established  place  of  business.  But 
these  acts  do  not  relate  to  the  gen- 
eral jinisdii'tion  of  the  district 
court,  only  to  the  power  of  the  par- 
ticular court  to  proceed.  They  give 
defendant  a  privilege  which  he  may 
waive.  If  the  counterclaim  defend- 
ant (original  plaintiff)  raises  the 
question  of  jurisdiction  at  the  out- 
set, and  succeeds,  defendant  may 
haAe  a  speedy  decision  of  this  ques- 
tion by  the  Supreme  Court.  What- 
ever the  decision  may  be  afPects  the 
scope  of  Eule  30,  not  its  construc- 


tion. *  *  *  The  cases  support- 
ing a  limited  application  of  the  rule 
proceed  upon  the  theory  that  it  was 
not  intended  to  change  the  substan- 
tive law  providing  what  could  be 
treated  as  a  set-off  or  counterclaim 
prior  to  the  rule  (Judge  Thomas, 
214  Fed.  841),  and  that  the  words 
*  shall  have  the  same  effect  as  a 
cross-suit'  mean  to  limit  the  counter- 
claim to  what  might  have  been 
brought  in  by  cross-bill.  These 
words  are  adopted  from  the  English 
rule,  except  that  '  cross-suit '  is  there 
'cross-action.'  Why  not  give  them 
the  settled  construction  of  the  Eng- 
lish courts?  As  Judge  Chatfield  says 
in  the  Marconi  Case"  (206  Fed. 
295,  298,  quoted   infra.)  : 

' '  '  Here  we  have  a  deliberate  use 
of  new  terms  covering  any  'indepen- 
dent suit  in  equity '  to  have  the  re- 
sult of  a  'cross-suit,'  and  yet  to  be 
pleaded  'without  cross-bill.' 

' '  The  contrary  view  is  strongly 
argued  by  Judge  Dodge  in  the  Terry 
Case,"  204  Fed.  103,  "Judge 
Geiger  in  the  Adamson  Case."  208 
Fed.  566,  "and  Judge  Thomas  in 
the  Sydney  Case,"  214  Fed.  841. 
"But  the  new  equity  rules  -were 
conceived  in  a  most  liberal  sjtirit, 
and  I  think  the  one  in  question 
should  be  given  its  manifest  mean- 
ing, so  as  to  allow  all  mutual  claims 
in  equity  to  be  set  off  or  opposed, 
as  is  done  under  the  English 
practice.  I  have  examined  many 
p]nglish  decisions  under  order  19, 
and  am  convinced  that  the  rule  has 
there  worked  justly.  It  has  been 
given  a  broad  and  liberal  construc- 
tion, but  has  not  been  extended  (as 
its  terms  prohibit)  to  cases  so  in- 
congruous   as    to    be    incapable    of 


1134 


CROSS-BILLS,    SET-OFFS   AND    COUNTER-CLAIMS  [§  198 


provision  that  the  set-off  or  counter-claim  "so  set  up  shall  have 
the  same  effect  as  a  cross-suit,"  relate,  not  to  cross-claims  in  gen- 
eral, but  to  counter-claims  in  equity  only ;  and  do  not  permit  a 
cross-claim  or  set-off,  that  could  be  enforced  only  at  common 
law.io 

Where  the  plaintiff's  cause  of  action  arose  under  a  law  of  the 
United  States  and  there  was  no  diversity  of  citizenship,  it  was 
held  that  a  counter-claim  not  founded  upon  a  Federal  statute 
could  not  be  maintained.^^ 

The  authorities  are  not  harmonious  upon  the  question  whether 
a  cross-bill  which  is  not  germane  to  the  subject-matter  of  the 
original  bill  can  now  be  sustained.  There  is  respectable  author- 
ity for  the  position  that  such  a  cross-bill  can  now  be  filed ;  ^^  but 


trial  with  the  original  suit.  Bar- 
tholomew V.  Eawlings,  No.  N.  56; 
Huggous  V.  Tweed,  10  Ch.  D.  §  35, 
Ch.  App. ;  Compton  v.  Preston,  21 
Ch.  D.  138.  Such  an  exception  may 
also  properly  be  applied  under  Eule 
30,  since  the  rule  relates  only  to 
equitable  causes  of  action.  If  it 
would  .be  inequitable  to  subject  the 
plaintiff  to  the  defense  of  an  in- 
congruous cross-action  surely  the 
court  would  decline  jurisdiction.  I 
am  convinced,  therefore,  that  the 
dismissal  of  the  bill  had  no  effect 
on  the  counterclaim  for  unfair  com- 
petition. ' ' 

10  Terry  Steam  Turbine  Co.  v.  B. 
F.  Sturtevant  Co.,  204  Fed.  103,  106 
(Citing  Jackson  v.  Simons,  C.  C.  A., 
98  Fed.  768)  ;  Williams  Patent 
Crusher  &  Fertilizer  Co.  v.  Kinsey 
Mfg.  Co.,  205  Fed.  375;  Motion 
Picture  Patent  Co.  v.  Eclair 
Film  Co.,  208  Fed.  416;  Vacuum 
Cleaner  Co.  v.  Am.  Eotary  Valve  Co., 
208  Fed.  419;  El.  Boat  Co.  v.  Lake 
Torpedo  Boat  Co.,  215  Fed.  377; 
Ohio  Brass  Co.  v.  Hartman  El.  Mfg. 
Co.,  243  Fed.  629.  Bankston  v.  Com- 
mercial Tr.  &  Sav.  Bank,  C.  C.  A., 
250    Fed.    985;    Covington    County, 


Ala.  v.  Stevens,  C.  C.  A.,  256  Fed. 
328.  But  see  Act  of  March  3,  1915, 
38  St.  at  L.  756,  Comp.  St.  §  1251a, 
quoted,  infra,  §  206,  contra,  Salts 
Textile  Mfg.  Co.  v.  Tingue  Mfg.  Co., 

208  Fed.    156;    McGill   v.   Sorenson, 

209  Fed.  876. 

11 U.  S.  Exp.  Bolt  Co.  V.  H.  G. 
Kroncke  H.  Co.,  C.  C.  A.,  234  Fed. 
868,    875,    reversing    216    Fed.    186. 

12  Marconi  Wireless  Tel.  Co.  v. 
Nat.  El.  Signal  Co.  (D.  C.  E.  D. 
N.  Y.),  206  Fed.  295;  Salt's  Text. 
Mfg.  Co.  V.  Tingue  Mfg.  Co.,  208 
Fed.  156;  Vacuum  Cleaner  Co.,  v. 
A.  M.  Kotary  Valve  Co.  (D.  C.  S.  D. 
N.  Y.),  208  Fed.  419;  El.  Boat  Co. 
V.  Lake  Torpedo  Boat  Co.,  215  Fed. 
377;  Buffalo  Specialty  Co.  v.  Van- 
cleef,  (N.  D.  Illinois,)  217  Fed.  91; 
Paramount  Hosiery  Form  Drying 
Co.  V.  Walter  Snyder  Co.,  (E.  D. 
Pa.)    244   Fed.   192. 

Marconi  Wireless  Tel.  Co.  v.  Nat. 
El.  Signal  Co.,  206  Fed.  295,  298, 
300,  per  Chatfield,  J.:  "It  will  be 
noted  that  a  counterclaim  'arising 
out  of  the  transaction  which  is  the 
subject-matter  of  the  suit'  must  be 
included  in  an  answer.  Considera- 
tion of  the  rule  and  of  the  subject- 


§198] 


COUNTER-CLAIMS 


ll;:!3 


matter   of   the   present  action    indi- 
cates  that   in   a   suit    for    infrinj^e- 
ment     of     patent     the     transaetion 
which   is  the   subject-matter   of   the 
suit  does  not  mean,  on  the  one  hand, 
the  patent  rights  alone,  nor,  on  the 
other    hand,    the    particular    act    of 
infringement     alleged.       Either     of 
these   might    he    the    transaction    in 
question,  but  the  word  'transaction' 
is   broader   in    scope,    yet    narrower 
when   applied   to   the   particular   set 
of  circumstances  from  which  the  re- 
lations   and    rights    of    the    parties 
have    resulted.      The    same    patent 
might  have  to  do  with  entirely  sep- 
arate  transactions,   or  the  same   in- 
fringement might  result  in  establish- 
ing various  rights,  contract  or  other- 
wise.    But  the  test   of   determining 
the  transaction  from  which  the  suit 
arose    would    require    a    determina- 
tion of  the  precise  right    (and   its 
breach)     about    which    the    parties 
were   litigating,    and    the    attendant 
circumstances    which    were    involved 
therein. 

"Rule  30  plainly  requires  that  as 
between  the  parties  to  an  equity 
action  involving  the  steps  to  such  a 
transaction,  and  the  determination 
of  rights  between  the  parties  grow- 
ing out  of  the  transaction,  all 
claims  shall  be  litigated  in  one  suit, 
and  that  thus  the  matter  shall  be 
rendered  res  adjudicata  and  future 
litigation  avoided.  For  this  purpose 
the  rule  says  that  such  counter- 
claims must  be  made  a  part  of  the 
answer  in  the  first  suit  which  calls 
into  question  this  transaction.  On 
the  other  hand,  the  ordinary  rela- 
tions of  persons  in  business  and  so- 
ciety, whether  with  respect  to  a  con- 
tract or  tort,  or,  for  illustration, 
A  patent,  may  give  a  defendant  in 


his  opinion  a  cause  of  action  against 
the  same  party  who  is  bringing  a 
bill  in  equity  against  this  defendant 
upon  some  transaction  with  which 
the  defendant's  claim  has  no  point 
of  contact  beyond  the  identity  of 
the  parties  to  the  suit. 

"The  words  of  Eule  30  provide 
that   every   and    any   such   cause   of 
action   may   be    set    off    or   counter- 
claimed   by   the   defendant;    that  is, 
used  by  him,  if  successful,  as  a  sub- 
traction   or    diminution    against    the 
]ilaintiff's  claim   if  the  plaintiff  be 
successful    therein,    and    also    avail- 
able  to  the   defendant  for  his  own 
relief  in  case  the  plaintiff  be  unsuc- 
cessful.    The  inclusion  of  such  a  set- 
off or   counterclaim  without  the  use 
of  a  cross-bill  is  said  to  have  the 
same   effect  as  a  cross-suit,  and  is 
made  discretionary,  or  even  optional, 
under  the  rule.     The  purpose  of  unit- 
ing independent   suits   is   plainly   to 
facilitate  adjustments  and  to  dimin- 
ish litigation.     But  the   doctrine  of 
res  adjudicata  should  not  be  invoked 
against    a   man,    nor    should    he    be 
charged   with   laches,   for  failing  to 
insist    upon    prosecutingr    an    inde- 
pendent   action    against    some    one 
who  might  happen  to  be  suing  him, 
if   nothing   were   to   be   gained,  and 
not    even    the    convenience    of    wit- 
nesses were  furthered  by  so  doing. 

* '  The  distinction,  therefore,  be- 
tween the  two  parts  of  the  second 
paragraph  of  Rule  30  is  not  to  be 
observed  by  defeating  an  alleged 
counterclaim  or  construing  it  so 
strictly  as  to  make  it  fall  in  the 
other  class  from  that  in  which  it 
is  to  be  disregarded.     *      *      * 

' '  The  plaintiff  points  out  that  be- 
tween large  manufacturers  hundreds 
of    infringement    actions    might    be 


1136 


CROSS-BILLS,    SET-OFFS    AND    COUNTER-CLx^IMS 


[§198 


pending  upon  different  patents  in 
widely  divergent  fields  and  impos- 
sible of  classification  so  as  to  base 
thereon  any  suggestion  that  the 
causes  of  action  arose  from  the  same 
transaction,  or  even  that  they  had 
any  similarity  to  one  another,  be- 
yond being  patent  cases  and  being 
litigation  betvreen  the  same  parties. 
But,  under  the  language  of  the  sec- 
tion, any  of  these  subjects  of  liti- 
gation, if  the  suit  could  be  brought 
in  equity  and  could  have  the  same 
effect  as  a  cross-suit,  may  be  united 
in  one  set  of  pleadings  and  disposed 
of  at  one  trial,  resulting  in  but  one 
judgment,  in  favor  of  the  party  who 
might  recover  enough  to  exceed  that 
of  his  opponent  and  involving  in 
this  trial  a  number  of  decrees  or 
injunctions,  in  the  ease  of  patents, 
against  either  or  both  parties,  as 
the  right  to  the  injunction  might  be 
shown. 

' '  At  this  point  we  should  consider 
the  language  of  Rule  26  (198  Fed. 
XXV,  115  C.  C.  A.  XXV),  which 
provides  that  the  plaintiff  may  join 
in  one  bill  as  many  causes  of  action 
cognizable  in  equity  as  he  may  have 
against  the  defendant.  This  lan- 
guage is  also  broad  enough  to  unite 
a  bill  to  set  aside  a  transfer  of  real 
estate  as  fraudulent,  with  an  action 
for  injunction  to  prevent  the  breach 
of  some  theatrical  contract,  and  also 
with  an  action  upon  a  patent  right 
for  damages  and  an  injunction  as 
well.  If  under  Eule  26  three  such 
causes  of  action  or  300  if  they  ex- 
isted could  legally  and  properly  be 
united,  it  is  difficult  to  see  why,  im- 
der  the  provisions  of  Rule  30,  any 
of  these  3  or  300  actions  could  not 
be  united  in  a  bill.  Any  such  cross- 
suits  or  counterclaims  could  be  dis- 


posed of  in  the  same  litigation,  inas- 
much as  the  parties  were  the  same, 
and  as  to  a  certain  extent  the  wit- 
nesses might  have  their  own  conven- 
ience furthered,  even  if  the  con- 
venience of  the  court  be  exceedingly 
strained. 

' '  We  must  therefore  go  a  step 
further  before  determining  what 
limitation  there  is  upon  either  Rule 
26  or  Rule  30.  It  is  provided  in 
Rule  26  that: 

'If  it  appear  that  any  such  causes 
of  action  cannot  be  conveniently  dis- 
posed of  together,  the  court  may  or- 
der separate  trials.' 

' '  Under  Rule  30  no  such  provision 
for  the  convenience  of  the  court  is 
inserted.  But  it  may  be  assumed 
that  entirely  distinct  or  separable 
controversies,  even  if  contained  in 
one  set  of  pleadings,  could  be  sep- 
arated upon  the  trial,  and  would  re- 
sult in  a  succession  of  trials,  and. 
if  necessary,  in  a  succession  of  judg- 
ments or  decrees,  which  could  be  set 
off  or  counterclaimed  against  one  an- 
other in  the  issuance  of  execution  or 
the  satisfaction  of  the  judgment. 

' '  There  is  nothing  inherently  im- 
possible, therefore,  and  nothing  for- 
bidden by  the  language  of  the  rule; 
but,  on  the  contrary,  the  rule  would 
seem  to  require  and  direct  the  union 
of  various  litigations  existing  in 
equity  up  to  the  time  of  pleading, 
or,  by  amendment,  up  to  the  time 
of  trial,  between  the  parties  to  the 
litigation,  and  we  have  to  consder 
what  limitations  must  be  observed  in 
this  particular  application.     *    *     * 

"The  new  Rule  30  not  only  thus 
does  away  with  a  cross-bill,  but  says 
that  'without  cross-bill'  any  claim 
which  could  be  the  subject  of  an  in- 
dependent  equity    suit   shall   be   set 


n98] 


COUNTER-CLAIMS 


1137 


out    in    the    answer    witli    the    same 
effect  as  a  'cross-suit,'  so  as  to  al- 
low a  'final  judgment'  on  the  'origi- 
nal'   and    'cross-claims.'      Hero    we 
have  a  deliberate  use  of  new  ter.iis 
covering    any    '  independent    suit    in 
equity, '    to    have    the    result    of    a 
'cross-suit,'   and  yet   to  be  pleaded 
'without  cross-bill'    (which  is  seem- 
ingly recognized  as  the  old  way  of 
jileading).     In  the  case  of  the  Terry 
.Steam  Turbine  Co.,  supra,  the  court 
seems    to    hold    that    the    permissive 
way  of  pleading  is  no  broader  than 
the  mandatory.     If  so,  it  is  impos- 
sible to  give  any  purposeful  mean- 
ing to  the  greater  part  of  the  para- 
graph.    However,  to  go  to  the  other 
extreme,    and    hold    that    all    causes 
of  action  in  equity  between  the  par- 
ties and  within  the  court's  jurisdic- 
tion can  be  brought  in  and  tried,  is 
evidently   not    practicable,   although 
the  rule   seems  to   be  broad  enough 
for  this  construction.     Some  restric- 
tion should  be  adopted  (under  Rule 
79,    198    Fed.    XLI,    115    C.    C.    A. 
XLI)   for  general  limitation,  and  in 
each  case  the  court  must  ultimately 
determine  what  issues  ca7i  be  prnji- 
erly   disposed    of    in    '  a   final    judg- 
ment '  in  the  suit,  and  order  sever- 
ance accordingly. 

"In  the  present  case,  while  ditfi- 
culty  is  suggested  by  the  nature  of 
the  subject-matter  and  the  number 
of  claims,  it  does  not  seem  that  for 
a  trial  without  a  jury  greater  diffi- 
culty would  be  found  than  in  dis- 
posing of  four  suits  in  what  might 
be  termed  a  series,  and  there  seems 
to  be  no  reason,  beyond  the  court's 
natural  desire  to  simplify  its  work, 
for  striking  out  the  counterclaim  in 
the  present  action.  If  it  should  ap- 
pear that  some  connection  of  events 


brings  this  counterclaim  or  the  cause 
of  action  upon  the  defendant 's  pat- 
ents   into    the    category    of    matters 
arising  'from  the  same  transaction' 
as  the  plaintiff's  own  cause  of  ac- 
tion, then  assuredly  the  court  should 
not   force  the   parties   into  the  pos- 
sible position  of  having  their  rights 
in  the  future  shut  off  by  the  man<la- 
tory   language   of   the  first   part   of 
the  section. ' '     See  Buft'alo  Specialty 
Co.  v.  Vancleef,  217  Fed.  91,  9:^,  94, 
Sanborn,   J.,    quoted   supra.      Salt 's 
Textile  Mfg.  Co.  v.  Tingue  Mfg.  Co., 
208  Fed.  156,  157,  158,  per  Martin, 
J.:      "As   I   understand,  the  object 
and   purpose   of   these   new    rules   in 
equity,  including  Rule  30,  is  to  less- 
en costs  for  litigants  in  the  court  of 
equity,  bring  about  more  speedy  and 
effective  relief  to  the  parties  therein, 
do    away    with    technical    questions 
that  may  be  a  hindrance  to  speedy 
justice,  and  settle  all  matters  in  con- 
troversy   between    the    parties    that 
may    fairly    arise    from    the    allega- 
tions   of    the    complaint.      To    meet 
these    demands,    Rule    30    should    be 
construed     liberally,     not    narrowly. 
The  language  of  the  rule  is: 

' '  '  The  answer  must  state  (may  not 
state)  any  counter-claim  arising  out 
of  the  transaction  which  is  the  sub- 
ject-matter of  the  suit  and  may, 
without  cross-bill,  set  out  any  set- 
off or  counter-claim  against  the 
jdaintiff, '  etc. 

' '  This  is  to  afford  an  opportunity 
for  the  defendant,  by  answer  only, 
to  assert  any  wrong  which  he  claims 
to  have  suffered  arising  from  the 
matters  alleged  in  the  bill.''  Para- 
mount Hosiery  Form  Drying  Co.  v. 
Walter  Snyder  Co.  (D.  C.  E.  D. 
Pa.),  244  Fed.  192. 


1138 


CROSS-BILLS,  SET-OFFS   AND   COUNTER-CLAIMS  [§  198 


tliere  are  a  number  of  cases  to  the  contrary."    The  question  has 


13  Terry    Steam    Turbine    Co.    v. 
B.    F.    Sturtevant    Co.     (D.    C.    D. 
Mass.),   204   Fed.  103;    Adanison   v. 
Shaler    (D.    C.    E.    D.    Wise),    208 
Fed.    566;    Klauder-Weldon    Dyeing 
Maeh.  Co.  v.  Giles  (D.  C.  D.  Mass.), 
212     Fed.     452;     Sydney     v.     Mug- 
ford     Printing     &     Eng.     Co.      (D. 
Conn.),    214    Fed.    841;    Goodno    v. 
Hotelikiss  (D.  Conn.),  230  Fed.  514; 
Christensen    v.    Westingliouse    Trac- 
tion Brake  Co.    (D.  C.  W.  D.  Pa.), 
235  Fed.  898,  900,  901,  per  Thomp- 
son,  J.:    "The   reasoning  of   Judge 
Dodge    and    those    with    him,    who 
have    adopted    the    more    restricted 
application     of     the     rule,     appears 
to    me     as    the    more    logical.       It 
seems    to   be    reasonaldy    clear    that 
the   purposes   of   the   rule   is   to   re- 
quire the  setting  up   in  the  answer 
of  all  matters  which  could  formerly 
be  brought  in  by  cross-bill  only.    As 
there  is  a  clearly  recognized  distinc- 
tion between   a   set-off   and   a  coun- 
ter-claim  in  equity;   it  must  be  as- 
sumed that,  when  the  rule  used  both 
words,    they    were    used,    not    inter- 
changeably  or    as    synonymous,   but 
with   their  true   distinction  in  view. 
A  counter-claim  is  one  which  the  de- 
fendant   might    assert    against    the 
plaintiif  in  the  same  suit,  the  cross- 
bill  being  brought   either   to   aid   in 
the  defense  of  the  original  suit  or  to 
obtain  a  complete  determination  of 
the  controversies  between  the  origi- 
nal complainant  and  the  cross-com- 
plainant  over  the  subject-matter  of 
the    original    bill.      And    if    this    is 
not   its  purpose,   it   is   not   a   cross- 
bill.     The    term    'counter-claim'    or 
'cross-bill'  in  equity  having  a  def- 
inite   meaning,    it    can    hardly    be 
supposed  that  the  court  in  drafting 
the    rule    used    it    in    two    different 


senses:  The  first  in  its  ordinary  and 
accepted    signification,    that    is,    a 
claim   'arising   out    of   the   transac- 
tion which  is  the  subject-matter  of 
the   suit';    the   second,   without  any 
such  limitation,  thus  practically  ef- 
fecting   a    very    radical    change    in 
the  law  as  to  what  could  be  pleaded 
by  way  of  counter-claim.    It  ia  to  be 
assumed  that,  if  such  radical  change 
were   intended,   it   would   have   been 
expressly    and    plainly    declared.      I 
do  not  think  the  wording  of  the  rule 
justifies     this     conclusion.       Giving 
proper  effect  to  the  words  '  without 
cross-bill'  and  the  words  'shall  have 
the   same   effect   as   a  cross-bill,'   it 
seems  reasonably  clear  that  the  an- 
swer  was   intended   to   perform   the 
function  of  a  cross-bill,  making  the 
cross-bill   no    longer    necessary;    the 
matter   thus  pleaded   in   the   answer 
having  the  same  effect  as  the  cross- 
suit.     This  could  not  be  true  if  the 
defendant  is  permitted   in  effect  to 
file  an  original  bill  by  way  of  coun- 
ter-claim having  no  connection  with 
the  subject  of  the  original  bill. 

* '  There  is  also  force  in  the  posi- 
tion of  Judge  Geiger  that,  if  the 
rule  were  intended  to  so  enlarge  the 
scope  of  equity  procedure  as  to  per- 
mit the  defendant  to  incorporate  in 
his  answer  causes  of  action  not  re- 
lated nor  germane  to  the  subject 
of  the  bill,  then  Rule  31  (198  Fed. 
XVII,  C.  C.  A.,  XVII)  should  have 
tlie  necessary  provisions  to  enable 
the  plaintiff  to  obtain  such  affirma- 
tive relief,  as,  were  the  defendant 
proceeding  by  the  original  bill,  the 
complainant  could  obtain,  formerly 
by  cross-bill  now  by  counter-claim. 
There  is  plainly  no  provision  in  Rule 
31  for  such  set-off  or  counter-claim 
on   the  part  of  the  plaintiff,  unless 


§  198]  COUNTER-CLAIMS  1130 

most  frequently  arisen  in  suits  for  the  infringement  of  patents 
which  are  discussed  in  the  following  section.  In  a  suit  to  re- 
scind a  contract  and  to  cancel  notes,  the  defendant  may  set  up 
a  counter-claim  for  the  collection  of  the  notes. ^*  It  has  been  held 
that  where  plaintiff  sued  at  law  for  breach  of  contract,  it  was 
admissible  for  defendant  by  cross-jietition  to  seek  reformation  of 
the  contract. ^^  That  in  a  suit  by  prior  mortgagees  to  foreclose, 
a  subsequent  mortgagee  can  not  complain,  by  way  of  set-otf  or 
counter-claim,  for  a  diversion  of  the  funds  acquired  through  the 
prior  mortgages,  though  the  mortgagors  are  insolvent.^^ 

In  determining  when  a  counter-claim  arises  out  of  the  trans- 
action which  is  the  subject-matter  of  the  suit,  cases  under  the 
former  practice  in  etjuity  and  those  under  the  code  practice  may 
be  considered.  Where  pending  a  suit  by  an  insurance  company 
to  cancel  a  policy  for  misrepresentation  the  insured  died  and  by 
supplemental  bill  the  beneficiary  was  restrained  from  suing  at 
law  upon  the  policy,  it  was  held  that  he  could  only  assert  his 
claim  by  a  cross-bill. ^'^  It  has  been  held  under  the  New  York 
Code  of  Civil  Procedure  that  the  following  causes  of  action 
arise  out  of  the  contract  or  transaction  set  forth  in  the  com- 
plaint as  the  foundation  of  the  i)laintiff's  claim  or  were  con- 
nected with  the  subject  of  the  action:  In  an  action  brought 
to  recover  the  purchase  price  of  stock,  a  claim  that  the  con- 
tract of  sale  was  procured  b.y  fraudulent  representations,  with  a 
prayer  that  it  should  be  rescinded. ^^  In  an  action  by  an  heir  to 
set  aside  so  much  of  a  will  as  created  a  trust,  a  counter-claim 
by  the  defendant  trustee  for  the  rents  of  the  land  collected  by 
the  plaintiff  since  the  testator's  death. ^^     In  a  foreclosure  suit, 

it  is  intended  to  be  embraced  in  the  257    Fed.    918.      See    Central    Trust 

word  'reply.'   Certainly  this  at  least  Co.  v.  Wheeling  &  L.  E.  R.  Co.,  211 

is    very    doubtful.      I    am    therefore  Fed.  515. 

of  the  opinion  that  the  words  'and  15  Ujison    Nut    Co.    v.     American 

may,    without    cross-bill,    set-off    or  Shipbuilding  Co.,  251  Fed.  707. 

counter-claim    against    the    plaintiff,  16  Mississijipi  Valley  Trust  Co.  v. 

which    might   be   the   subject   of   an  Washington  N.  R.  Co.,  212  Fed.  776. 

independent   suit   in   equity   against  17  Royal    Union    Mut.    Life    Ins. 

him,'    apply    only   to    such    counter-  Co.  v.  Wynn,  177  Fed.  289. 

claims  as  arise  out  of  the  transac-  18  Delano    v.    Rice,    23    App.   Div. 

tion   which   is  the  subject-matter  of  (N.  Y.)  327. 

the  suit."  19  O'Brien    v.    Garniss,    25    Hun. 

14Knupp   V.    Bell,   C.    C.    A.,   243  (N.  Y.)  446. 
Fed.  157 ;  Howard  v.  Leete,  C.  C.  A., 


11-10  CROSS-BILLS,    SET-OFFS    AND    COUNTER-CLAIMS  [§  198 

a  counter-claim  for  usury  and  to  set  aside  the  cloud  by  the 
mortgage  on  the  title  to  the  premises.^"  In  an  action  to  enforce 
the  statutory  lien  created  on  an  award  in  condemnation  pro- 
ceediDgs,  a  counter-claim  for  a  breach  of  a  contract  for  the  sale 
of  the  premises  condemned,  which  was  made  during  the  con- 
demnation proceedings.^^  In  an  action  to  enjoin  a  foreclosure 
action,  a  counter-claim  for  rent  due  from  the  equitable  owner  of 
the  mortgage.22  It  has  been  held,  in  England,  that  in  an  action 
by  the  vendor  for  specific  performance,  the  defendant  may,  by 
a  counter-claim,  pray  for  the  review  of  a  previous  decision  as 
to  the  title.23 

The  following  cases,  amongst  others,  under  the  New  York 
Code  have  held  that  counter-claims  could  not  be  pleaded.  In 
an  action  brought  to  restrain  a  party  from  interference  with 
the  plaintiff's  trade,  a  counter-claim  for  damages  arising  out 
of  the  breach  of  a  contract  between  some  of  the  plaintiffs 
and  the  assignor  of  the  defendant. ^^  In  an  action  to  set  aside 
an  assignment  and  to  procure  a  reassignment  of  bonds  and 
mortgages,  a  counter-claim  that  the  agent,  acting  under  a  power 
of  attorney  from  the  plaintiff,  together  with  two  others,  act- 
ing under  a  previous  power  of  attorney,  had  subsequently  as- 
signed to  the  defendant  three  other  bonds  and  mortgages  which 
plaintiff  refused  to  deliver.^^  In  an  action  to  recover  money 
collected  under  color  of  a  contract  by  fraud,  a  counter-claim 
for  a  balance  due  for  work  under  the  contract.''^  In  an  action 
to  recover  a  debt  for  which  a  lien  had  been  filed,  a  counter- 
claim for  the  expense  of  removing  the  lien  and  of  prepara- 
tion of  the  defense  of  an  action  anticipates  to  foreclose  the 
same.^''' 

20  Myers  v.  Wheeler,  24  App.  Div.  24  Sugden  v.  Magnolia  Metal  Co., 
(N.  Y.)    327,  48   N.  Y.  Siipp.  611T       58  App.  Div.   (N.  Y.)   236. 

Queen  City  Bank  v.  Brown,  75  Hun,  25  Bradhurst     v.      Townsend,      11 

(N.  Y.)  259,  58  St.  Rep.  286,  28  N,  Hiin  (N.  Y.)  104. 

Y.  Supp.  1016.  26  People    v.    Denuison,    84   N.    Y. 

21  Cottle  V.  N.  Y.,  W.  S.  &  B.  Ry.  272,  affirming  81  N.  C.  (N.  Y.)  129, 
Co.,  27  App.  Div.  (N.  Y.)  604,  50  affirming  59  How.  Pr.  (N.  Y.)  157. 
N.  Y.  Supp.  1008.  27  Biershenk   v.   Stokes,   18   N.   Y. 

22  Austin  V.  Rapelye,  45  St.  Rep.  Supp.  854,  reversing  43  St.  Rep.  (N. 
480.  Y.)    788. 

23  Scott  v.  Alvarez   (1895),  1   Ch. 
596. 


§  198a] 


COUNTER-CLAIMS    IN    I'ATENT    CASES 


1141 


The  rules  furthermore  permit  any  set-off  or  counter-claim 
which  might  be  the  subject  of  an  independent  suit  in  equity 
against  the  plaintift'.^s  This  abrogates  the  former  doctrine,  that 
a  cross-bill  must  be  germane  to  the  subject-matter  of  the  orig- 
inal bill.29 

§  198a.  Counter-claims  in  patent  and  trade-mark  cases.  Be- 
fore the  equity  rules  of  1912,  in  a  suit  to  compel  the  issue  of  a 
I)atent,^  or  for  relief  on  account  of  interfering  patents,^  a  cross- 
bill because  of  the  infringement  of  the  defendant's  patent  in  ques- 
tion could  not  be  maintained.  Where,  on  a  bill  by  several  per- 
sons to  restrain  the  infringement  of  a  patent  and  for  an  account, 
the  defense  being  invalidity  of  the  patent  and  a  license,  the  court 
sustained  the  patent  and  decreed  damages;  a  bill  was  not  sus- 
tained as  a  cross-l)ill  which  set  up  a  judgment  in  another  suit 
against  one  of  the  complainants,  and  prayed  that  they  all  set 
forth  and  discover  what  share  of  the  damages  Avas  claimed  by 
each,  so  that  the  defendant  who  filed  the  cross-bill  might  set  off 
his  judgment  against  the  share  claimed  by  his  judgment  cred- 
itor.3  Where  the  plaintiff,  claiming  the  exclusive  right  under  a 
contract  to  use  the  name  of  defendant  in  the  sale  of  patent  medi- 
cines, filed  a  bill  against  the  latter  to  enjoin  a  violation  thereof, 
and  the  latter  filed  an  alleged  cross-bill  to  enjoin  complainant 
from  making  use  of  the  name  not  authorized  by  the  contract  it 
was  held  that  this  latter  bill  was  not  a  true  cross-bill,  but  an 
original  bill.* 

Since  the  adoption  of  the  rules  of  1912,  the  following  de- 
cisions have  been  made.  In  a  suit  to  recover  royalties  under 
a  contract  for  an  exclusive  license,  defendant  may  be  per- 
mitted to  set  up  a  counter-claim  disputing  the  validity  of  the 


28  Eq.  Rule  30. 

29  It  has  been  lieM  :  tliat  a  cross- 
Itill  may  be  filed  in  a  suit  to  fore- 
close a  mechanic  "s  lien  for  the  can- 
cellation of  the  record  of  the  lien, 
with  damages  for  a  breach  of  the 
mechanic's  contract  (Springfield  M. 
261);  in  a  suit  to  foreclose  a  ven- 
dor's lien,  for  the  foreclosure  of  a 
subsequent  vendor  "s  lien  after  the 
cross-complainant  has  secured  the 
payment    of    the    amount    due    the 

Fed.   Prar.  Vol.  II— 2 


original  plaintiff  (Cox  v.  Price,  2 
Va.  Dec.  170,  22  S.  E.  512).  See 
fiuprn.   note  4  and   S  197,  note   16. 

§  198a.  1  Kilbourn  v.  Hirner, 
16:5    Fed.   5:59,   supra,    §  147. 

2  Stonemetz  Printers'  Mach.  Co. 
V.  Brown  Folding  Mach.  Co.,  46 
Fed.  851,  supra,  §  147. 

3  Rubber  Co.  v.  Goodyear,  9  Wall. 
SO  7. 

4  Chattanooga  Medicine  Co.  v. 
Thedford.   58   Fed.   347. 


1142 


CROSS-BILLS,    SET-OFFS   AND    COUNTER-CLAIMS         [§  198a 


patent  owned  by  the  licensor,  not  for  the  purpose  of  avoiding 
payment  of  royalties,  but  in  order  to  obtain  a  decree  terminating 
the  contract,  when  the  license  provides  that  the  royalties  shall 
terminate  upon  a  decree  which  declares  the  patent  void.^  In  a 
suit  for  the  infringement  of  a  patent  a  counter-claim  may 
seek  relief  for  the  infringement  of  another  patent,  the  inven- 
tion covered  by  which  is  used  in  connection  with  the  inven- 
tion protected  by  the  patent  of  the  complainant,  or  is  con- 
nected with  the  same  subject-matter.^  It  has  been  held:  that 
in  a  suit  to  enjoin  the  infringement  of  a  trade-mark  and  for 
unfair  competition  a  counter-claim  wall  lie  which  seeks  an  in- 
junction fer  an  infringement  of  the  defendant's  patent  by  the 
sale  of  complainant's  articles  upon  which  the  trade-mark  is 
used7  That  in  a  suit  to  enjoin  the  infringement  of  a  patent  the 
defendant  may  counter-claim  for  unfair  competition  by  threats 
and  advertisements  in  connection  with  the  patents  in  suit.^ 

A  number  of  cases  hold  that  in  a  suit  for  the  infringement  of  a 
patent  the  counter-claim  cannot  pray  relief  because  of  the  in- 
fringement of  another  patent  for  an  invention  absolutely  uncon- 
nected with  that  protected  by  the  patent  of  plaintiff.'  There  are 
other  cases  of  equal  authority  which  su.stain  such  counter- 
claims.^® 


6  Miami  Cycle  &  Mfg.  Co.  v.  Eob- 
inson,  C.  C.  A.,  245  Fed.  556. 

6U.  S.  Expansion  Bolt  Co.  v.  H. 
G.  Kroncke  H.  Co.,  216  Fed.  186, 
approved  but  reversed  upon  another 
point,  C.  C.  A.,  234  Fed.  868,  872. 
Contra,  Christensen  v.  Westing- 
house  Traction  Brake  Co.,  235  Fed. 
898. 

7  Champion  Spark  Plug  Co.  v. 
Champion  Ignition  Co.,  247  Fed. 
200. 

8  Buffalo  Specialty  Co.  v.  Van 
Cleef,  217  Fed.  910;  Salts  Text. 
Mfg.  Co.  V.  Tingue  Mfg.  Co.,  208 
Fed.  156.  Cf.  Vacuum  Cleaner 
Co.  V.  Am.  Rotary  Valve  Co.,  208 
Fed.  419.  Contra,  Williams  Patent 
Crusher  &  Fertilizer  Co.  v.  Kinsey 
Mfg.  Co.,  205  Fed.  375;  U.  S.  Exp. 
Bolt   Co.    V.    H.    G.    Kroncke    Hard- 


ware Co.,  C.  C.  A.,  234  Fed.  868, 
875,  reversing  216  Fed.  186  (where 
there  was  no  diversity  of  citizen- 
sliip). 

9  Terry  Steam  Turbine  Co.  v.  B. 
F.  Sturtevant  Co.  (D.  C.  Mass.),  204 
Fed.  103;  Marconi  Wireless  Tel. 
Co.  V.  Nat.  El.  Sig.  Co.,  206  Fed. 
295;  Adamson  v.  Shaler,  (D.  C.  E. 
D.  Wise),  208  Fed.  566;  Klauder- 
Weldon  Dyeing  Mach.  Co.  v.  Giles 
(D.  C.  W.  Mass.),  212  Fed.  452; 
Christensen  v.  Westinghouse  Trac- 
tion Brake  Co.  (D.  C.  W.  D.  Pa.), 
235  Fed.  898. 

10  Marconi  Wireless  Tel.  Co.  v. 
Nat.  El.  Signal  Co.  (D.  C.  E.  D. 
N.  Y.),  206  Fed.  295;  Salt's  Text. 
Mfg.  Co.  v.  Tingue  Mfg.  Co.,  208 
Fed.  156;  Vacuum  Cleaner  Co.  v. 
A.  M.  Eotary  Valve  Co.    (D.  C.  S. 


§  i;)8ej  BETWEEN    COUNTER-CLAIM    AND    DEFENSE  1143 

§198b.  Set-offs.  The  distinction  between  a  set-off  and  a 
counter-claim  may  be  one  of  importance,  since  in  case  of  bank- 
ruptcy or  insolvency  of  the  complainant  the  defendant  might  be 
allowed  the  full  amount  of  his  set-offs  and  be  obliged  to  share 
proportionately  witii  the  other  creditors  in  the  dividend  upon  his 
counter-claims.i  "A  set-off  is  a  statutory  defense  to  an  action. 
A  counter-claim  is  a  cross-action."  ^  A  set-off  is  generally  con- 
sidered to  be  a  matter  capable  of  use  as  an  off-set  to  a  recovery  by 
the  plaintiff.  A  counter-claim  is  a  matter  capable  of  use  as  a 
basis  for  a  judgment  for  relief  against  the  plaintiff  and  in  a 
proper  ease  may  be  also  used  as  a  set-off.^  The  terms  are  not 
inulually  exclusive.*  Upon  the  foreclosure  by  the  trustee  of  a 
mortgage  to  secure  })onds  of  a  corporation,  it  was  held  that  in  the 
distribution  of  the  fund  the  court  would  not  set  off  against  the 
claims  of  such  bondholders  as  were  stockholders  of  the  n>ort- 
gagor,  the  amounts  due  for  failure  to  pay  their  subscriptions  in 

fuU.*^ 

In  England,  it  has  been  said  that  "set-off  is  the  creature 
of  statute;  to  be  allowed  a  set-off  you  must  show  a  statutory 
right. '"<5  There  a  set-off  remains  precisely  what  it  used  to  be 
under  the  status  of  George  II.'''  It  must  there  be  a  cross-claim 
for  a  liquidated  amount  and  it  can  be  pleaded  only  to  a  li(iui- 
datcd  claim. ^ 

§  198c.  Distinction  between  counter-claim  and  defense.  There 
may  also  be  some  importance  in  the  distinction  between  a  defense 
and  a  counter-claim,  since  a  reply  is  required  to  the  latter,  but 
not  without  special  order  to  the  former.^  The  former  cases, 
holding  when  a  cross-bill  should  be  filed,  and  when  not,  may  eon- 

D.  N.  Y.),  208  Fod.  419;   El.  Boat  4  Ibid. 

Co.  V.  Lake  Torpedo  Boat  Co.,  Sl.l  5  Fidelity  Trust  Co.  v,  Washing- 
Fed.  .377;  Buffalo  S]>ecialty  Co.  v.  toii-Orejion  Corp.,  217  Fed.  588.  See 
Vaneleef,  (N.  D.  Illinois),  217  Fed.  u'/m,  §§  G-lo,  G48. 
1)1;  i'aramount  Hosiery  Form  Drvino-  6  Liskeard,  etc.,  Ry.  Co.  v.  Lis- 
Co!  V.  Walter  Snyder  Co.  (E.  U.  keard  &  Caradon  Ry.  Co.,  18  Times 
Pa.)  Rep.  1;    Ann.  Pr.  1913,  p.  360. 

§  198b.     lOdgers     Principles     of  7  2    Geo.   II,   Ch.   22;    8    Geo.    II, 

Pleading,  4th  ed.,  p.  228.  Ch.  24. 

2  Lord  Esher,  M.  R.,  in  Sykes  v.  8  Rees  v.  Watts,  11  Ex.  410;  Ann. 
Saeerdoti,  1.5  Q.  B.  D.  423.  Pr.  1913,  p.  3G0. 

3  Marconi    Wireless    Tel.     Co.     v.  §  198c,     1  Eq.  Rule  31. 
Nat.  El.  Sig.  Co.,  206  Fed.  295,  299, 

per  Chatfield,  J. 


1144 


CROSS-BILLS,    SET-OFFS   AND    COUNTER-CLAIM P,  [§  198c 


sequently  he  useful  in  this  respect.  If  the  facts  which  a  defend- 
ant wishes  to  set  up  destroy  the  plaintiff's  apparent  cause  of 
action,  they  constitute  a  defense  and  should  be  so  pleaded;  but 
if  they  only  furnish  a  reason  why  the  court  should  make  a  bill 
depriving  the  plaintiff  of  his  cause  of  action,  they  must  be  set 
forth  as  a  counter-claim. ^  It  was  formerly  held  that  a  discharge 
in  bankruptcy  pending  a  suit,^  and  the  right  of  sureties  to  subro- 
gation,* and  an  agreement  to  settle  the  litigation  made  pending 
the  suit,5  could  only  be  pleaded  by  a  defendant  in  a  cross-bill. 
In  such  cases,  the  cross-bill  was  in  the  nature  of  a  supplemental 
bill.e 

In  England,  a  counter-claim  must  always  seek  relief  against 
the  plaintiff,  either  alone  or  along  with  some  third  person ;  "^  but 
to  a  joint  claim  by  two  plaintiffs,  a  counter-claim  against  them 
jointly,  or  a  separate  counter-claim  against  each  of  them  has 
been  allowed ;  ^  or  the  defendant  may  counter-claim  against  one 
plaintiff  and  deny  all  liability  to  the  other,  and  then  recover  a 
judgment  against  one  of  them.®  It  has  been  held  in  England 
that  the  plaintiff  may  plead  a  counter-claim  against  a  counter- 
claim interposed  by  the  defendant;  ^^  provided,  at  least,  that  he 
does  not  pray  for  an  affirmative  judgment  upon  the  same.^^  It 
has  been  held  that  matter  described  in  the  answer  as  an  ''an 
swer  by  way  of  counter-claim,"  may  be  treated  as  a  counter- 
claim ;  ^^  but  that  where  the  matter  was  described  as  a  defense 
and  nothing  was  shown  to  indicate  that  the  pleader  intended  to 


2  See  Langdell  's  Eq.  PI.,  §  155. 
Therefore,  when  a  bill  is  filed  by 

a  mortgagor  against  a  mortgagee 
for  redemption,  if  the  defendant  can 
only  show  that  the  plaintiif  is  not 
entitled  to  redeem,  he  might  ob- 
tain the  benefit  of  a  foreclosure 
without  filing  a  cross-bill  for  the 
purpose;  for  the  dismissal  of  a  bill 
to  redeem  upon  its  merits  is  itself 
a  foreclosure.  Langdell 's  Eq.  PI., 
§  123.  See  Hilton  v.  Barrow,  1 
Ves.  Jr.  284. 

3  Banque     Franco-Egyptienne      v. 
Brown,  24  Fed.  106,  107. 

4  Stokes     V.    Little,    65    111.    App. 
255. 


5  Snyder  v.  De  Forest  Wireless 
Telegraph  Co.,  154  Fed.  142, 

e  Infra,   §§231,  234. 

7  Furness  v.  Booth,  4  Ch.  D.  586 ; 
Harris  v.  Gamble,  6  Ch.  D.  748; 
Ann.  Pr.   1913,  p.  363. 

8M.,  S.  &  L.  Ry.  Co.  v.  Brooks, 
2  Ex.  D.  243. 

9  Hall  V.  Fairweather,  18  Times 
Eep.  58;   Ann.  Pr.  1913,  p.  363. 

lOToke  V.  Andrews,  8  Q.  B.  D. 
428. 

llRenton  Gibbs  &  Co.,  L'd  v. 
Neville  &  Co.    (1900),  2  Q.  B.  181. 

12  Johnson  v.  Sherwood,  34  Ind. 
App.  490,  73  N.  E.  180. 


<m\ 


PARTIES    TO    CROSS-HILLS    AXD    COUNTER-CLAIMS 


1145 


set  up  a  counter-claim  as  such,  he  was  precluded  from  insisting 
that  he  set  one  up.^^  Where  the  matter  was  not  described  as 
a  counter-claim,  but  the  prayer  asked  that  the  paper  be  made  a 
cross-petition  against  the  plaintiff,  who  replied  to  the  same,  it 
was  treated  as  a  counter-claim.^^ 

§  199.  New  parties  to  cross-bills  and  counter-claims.  It  was 
said  hy  a  judge  of  great  authority  tliat  new  parties  could  not  be 
introduced  into  a  case  by  a  cross-bill.^ 

It  was  held,  that  this  could  not  be  done  when  the  result  would 
be  to  arrange  parties  of  the  same  citizenship  upon  different  sides 
of  a  controversy,  that  arose  before  the  suit  was  brought  and  over 
which  a  Federal  court  could  not  have  original  jurisdiction.^  A 
junior  mortgagee  was  not  allowed  to  file  a  cross-bill  in  a  fore- 
closure suit,  so  as  to  procure  the  foreclosure  of  his  own  mortgage, 
when,  on  account  of  his  citizenship,  the  court  would  have  had  no 
jurisdiction  of  an  original  bill  for  that  purpose.^  It  has  been 
said :  that  a  cross-bill  cannot  be  filed  to  set  aside  a  compromise 
of  the  original  suit,  under  which  deeds  have  been  made  to  a  per- 
son not  an  original  party  thereto.*  In  a  suit  by  the  United 
States  on  behalf  of  Indians  to  cancel  conveyances  of  lands,  de- 
fendants were  not  permitted  to  file  a  cross-bill  praying  that  in- 
dividuals claiming  an  interest  in  the  lands  adverse  to  defendant 
be  joined  as  parties  and  required  to  litigate  their  claims.^  In  a 
suit  to  prevent  unfair  competition  by  false  advertisements  con- 
cerning patent  rights  a  stranger  was  not  allowed  to  intervene 
and  bring  in  another  party  in  order  that  they  might  by  counter- 
claim  for  the  infringement   by   the   complainant   of  the  same 


13  Lafond  v.  Lassere,  26  Misc.  (N. 
Y.)  77,  56  N.  Y.  Supp.  459;  State 
V.  Coughran,  19  South  Dak.  271,  10.3 
N.  W.  ,31.  Contra,  Central  Imp. 
Co.  V.  Cambria  Steel  Co.,  C.  C.  A., 
210  Ferl.  706,  721;  Mills  v.  Rosen- 
baum,  103  Ind.  152,  2  N.  E.  313. 
But  see  Mason  v.  Mason,  46  Misc. 
(N.  Y.)  361,  94  N.  Y.  Supp.  868, 
34  Civ.  Pro.  R.  193. 

14  Hutehings  v.  Dean,  11  Ky.  Law- 
Rep.  310. 

§  199.  1  Mr.  Justice  Curtis  in 
Shields  v.  Barrow,  17  How.  130, 
145,  15  L.  ed.  158,  162.     See  Ran- 


dolph V.  Robinson,  2  N.  J.  L.  171; 
Patton  V.  Marshall,  C.  C.  A.,  26 
L.R.A.(N.S.)   127,  173  Fed.  350. 

2  Shields  v.  Barrow,  17  How.  130, 
15  L.  ed.  158;  Patton  v.  Marshall, 
C.  C.  A.,  26  L.R.A.(N.S.)  127,  173 
Fed.  350.  Similar  is  "Wright  v. 
Frank,  61  Miss.  32. 

3  Newton  v.  Gage,  155  Fed.  598. 
But  see  Lilienthal  v.  McCormick, 
C.  C.  A.,  117  Fed.  89,  96. 

4Bunel  v.  O 'Day,  125  Fed.  303, 
319. 

5U.  S.  V.  Woods,  C.  C.  A.,  223 
Fed.   316. 


1146 


CROSS-BILLS,    SET-OFFS    AND    COUNTER-CLAIMS  [§  199 


patent.^  In  a  suit  iu  equity  by  the  purchaser  of  coal  rights  in 
lands  for  a  specific  enforcement  of  the  contract,  the  terms  of 
which  were  in  dispute  between  the  parties,  the  defendant  cannot 
by  cross-bill  bring  in  as  parties  defendant  the  agents  who  made 
the  contract,  on  his  behalf  and  with  his  approval,  to  have  their 
right  to  commissions  determined;  a  controversy  which  has  no 
relevancy  to  the  principal  suit,  and  in  which  complainant  has  no 
interest^ 

It  has  been  said  that  when  the  interests  of  the  defendant  re- 
quire the  presence  of  new  parties,  he  should  take  the  objection 
of  non-joinder  and  compel  the  plaintiff  to  amend.^  It  was  said 
later  that  the  objection  of  their  misjoinder  could  be  raised  only 
by  the  new  parties  thus  sought  to  be  brought  in.^ 

The  rule  seems  now  to  l^e  well  established  that,  although  new 
parties  cannot  be  introduced  by  a  cross-bill  which  seeks  discovery 
only  or  which  is  purely  defensive,  they  may  when  it  seeks  affir- 
mative relief  against  the  complainants  and  their  presence  is 
necessary  to  the  determination  of  the  controversy  as  thus  en- 
larged.i"  j^^^t  this  is  very  rarely  permitted.  A  citizen  of  the 
District  of  Columbia,  who  had  bought  an  interest  in  the  property 
affected  pending  the  litigation,  was  allowed  to  file  a  cross-bill  to 
protect  his  interest  in  the  property."  Upon  a  bill  in  equity  filed 
by  the  lessors  of  an  oil  lease  against  the  lessee,  for  a  discovery, 
an  accounting  of  royalties,  and  specific  performance  of  the  con- 
tract to  deliver  oil  as  royalty ;  the  defendant  was  allowed  to  file 
a  cross-bill,  bringing  in  as  defendants  other  claimants  of  own- 
ership to  parts  of  the  land,  and  praying  that  their  rights  be  de- 


6  Atlas  Underwear  Co.  v.  Cooper 
Underwear  Co.,  210  Fed.  347. 

7  Patten  V.  Marshall,  C.  C.  A.,  2(i 
L.E.A.(N.S.)   127,  173  Ted.  350. 

aPatton  V.  Marshall,  C.  C.  A.,  20 
L.R.A.(N.S.)    127,  173  Fed.  350. 

9  Brandon  Mfg.  Co.  v.  Prime,  14 
Blatchf.  371.  Contra,  Gregory  v. 
Pike,  C.  C.  A.,  67  Fed.  837,  holding 
that  the  complainant  may  object  to 
a  cross-bill  filed  by  a  stranger  claim- 
ing an  interest  in  the  subject  of  the 
litigation.  See  Thurston  v.  Big 
Stone  Gap  Imp.  Co.,  86  Fed.  484. 


10  Brandon  Mfg.  Co.  v.  Prime,  14 
Blatehf.  371;  Kanawha  I.odge  v. 
Swann,  37  W.  Va.  176;  s.  C,  16  S. 
E.  462 ;  Allen  v.  Triteh,  5  Colo.  222, 
228;  Hurd  v.  Case,  32  111.  45,  83 
Am.  Dec.  249;  Jones  v.  Smith,  14 
111.  229;  Blodgett  v.  Hobart,  18  Vt. 
414;  Hildebrand  v.  Beasley,  41  S. 
(Tenn.)  121,  123;  Sharp  v.  Pike's 
Adm'r,  5  B.  Mon.  (Ky.)  155;  Cos- 
ter's Ex'rs  V.  Bank  of  Ga.,  24  Ala. 
39. 

11  Ulman   v.  laeger  's  Adm  'r,  155 

Fed.  1011. 


§  199  J 


I'AKTIBS    TO    CROSS-BILLS    AND    COUNTER-CLAIMS 


lUl 


termined  by  the  court. ^^  In  a  suit  to  restrain  the  infringement 
of  a  patent,  a  cross-bill  was  sustained;  which  brought  in  as 
defendant  to  it  a  new  party,  the  assignor  of  the  patent  to  the 
original  complainant ;  claimed  that  such  assignor  had  previously 
assigned  the  equitable  title  thereto  to  the  orator  of  the  cross-bill, 
and  that  the  legal  assignee  had  bought  with  notice  thereof;  and 
prayed  a  conveyance  of  the  patent  and  an  injunction  against 
further  annoyance. ^^ 

Parties  brought  in  as  defendants  to  a  cross-bill  may,  in  turn, 
exhibit  cross-bills  when  the  same  are  necessary  or  proper  to  ter- 
minate the  litigation.^*  A  stranger  to  a  suit  cannot  file  a  cross- 
bill without  permission  from  the  court."  A  cross-bill  filed  by  a 
stranger  without  such  permission  may  be  stricken  from  the  file.*^ 
Permission  will  not  be  granted  if  his  claim  is  not  germane  to  that 
set  forth  in  the  original  bill.^'  Thus,  when  a  trustee  in  bank- 
ruptcy sued  to  set  aside  a  preferential  transfer  and  to  recover 
the  proceeds  of  the  same,  a  party  claiming  the  liei>  upon  the  fund 
was  not  permitted  to  intervene  and  to  enforce  the  same  by  cross- 
bill." It  has  been  said  that  under  the  practice  of  the  Federal 
courts  one  claiming  an  interest  in  the  subject  of  litigation  cannot 
properly  be  made  a  party  defendant  against  the  objection  of 
complainant,  and  hence  a  cross-bill  filed  by  a  person  thus  com- 
ing into  the  cause  should  be  dismissed.^^  In  a  suit  to  foreclose 
a  chattel  mortgage,  a  party  claiming  a  prior  chattel  mortgage, 
made  by  one  of  the  original  defendants  upon  part  of  the  prop- 
erty, may  be  allowed  to  intervene  and  file  a  cross-bill  to  estab- 


12  Eohinson  v.  Brast,  C.  C.  A.,  149 
Fed.  149. 

18  Brandon  Mfg.  Co.  v.  Prime,  14 
Blatchf.  371. 

14  Blair  v.  Illinois  S.  Co.,  42  N. 
E.  895;  s.  c,  159  111.  350,  31  L.E.A. 
269. 

16  Bronson  v.  La  Crosse  &  M.  R. 
Co.,  2  Wall.  283,  17  L.  ed.  725; 
Forbes  v.  Memphis,  E.  P.  &  P.  R 
Co.,  2  Woods,  323;  Gregory  v.  Pike, 
67  Fed.  S,?.7;   infra,  §258. 

16  Bronson  v.  La  Crosse  &  M.  R. 
Co.,  2  Wall.  283,  294,  303,  17  L.  ed. 
725,   729;    Putnam  v.   New   Albany, 


4  Biss.  365,  367;  Keithley  v.  Am. 
Car  &  Foundry  Co.,  216  Fed.  904; 
Am.  Car  &  Foundry  Co.  v.  Mer- 
chants' Despatch  Transp.  Co.,  216 
Fed.  904. 

IV  Atlas  Underwear  Co.  v.  Cooper 
Underwear  Co.,  210  Fed.  347; 
Lovell  V.  Latham  &  Co.,  186  Fed. 
002;   s.  C,  211  Fed.  374. 

ISLoveU  V.  Latham  &  Co.,  186 
Fed.  602. 

19  Gregory  v.  Pike,  C.  C.  A.,  67 
Fed.  837.  See  Thruston  v.  Big  Stone 
C.  I.  Co.,  86  Fed.  484. 


1148 


CROSS-BILLS,    SET-OFFS    AND    COUNTER-CLAIMS 


[§199 


lish  his  rights.^"  It  has  been  held  that  upon  a  stockholders'  bill 
to  set  aside  a  transfer  of  property  because  of  the  fraud  and 
gross  negligence  of  its  president,  such  president,  although  not 
an  original  party,  may  be  allowed  to  intervene  and  file  a  cross- 
bill to  controvert  the  charges  against  him  in  the  bill.^i  Upon 
a  stockholder's  bill  for  an  injunction,  against  the  election  of 
directors  at  the  annual  meeting  of  the  stockholders  of  a  corpora- 
tion, other  stockholders  not  original  defendants,  were  allowed  to 
file  a  cross-bill  praying  for  a  modification  of  a  preliminary  in- 
junction, granted  in  accordance  with  the  prayer  of  the  original 
bill,  so  as  to  permit  the  election  of  the  directors  under  the  super- 
vision of  a  master  in  chancery,  at  a  time  to  be  fixed  by  the 
court.2^  Whether  under  the  new  Equity  Rules  a  new  party  can 
be  brought  in  by  a  counter-claim  has  not  yet  been  decided. 

In  England,  the  defendant  may  plead  a  counter-claim  against 
a  third  person  jointly  with  the  plaintiff ;  provided  that  the  relief 
thus  sought  relates  to,  or  is  connected  with,  the  subject-matter  of 
the  plaintiff's  claim  ;23  even  though  such  third  person  could 
not  be  a  party  to  the  plaintiff's  original  claim;  ^  but  the  plain- 
tiff must  be  a  party  to  such  counter-claim ;  ^5  and  a  third  person 
may  be  joined  with  the  plaintiff  as  defendant  to  the  counter- 
claim, although  he  would  be  liable  only  in  one  of  two  inconsist- 
ent alternatives ;  ^^  but  such  third  person  cannot  counter-claim 
in  the  action  against  either  plaintiff  or  defendant. ^''^  A 
joint  claim  against  two  partners  may  there  be  set  up  as  a  coun- 
ter-claim against  a  separate  claim  by  one  of  them.^^  In  New 
York  it  has  been  held  that  where  the  liability  was  joint  and  sev- 
eral, a  counter-claim  or  set-off  might  be  intei-posed ;  ^^  but  other- 
wise a  joint  demand  could  not  be  set  up  as  a  counter-claim  when 


20  Osborne  &  Co.  v.  Barge,  30  Fed. 
805. 

21  Brinekerhoff  v.  Holland  Tr. 
Co.,  159  Fed.  191. 

22Bartlett  v.  Gates,  118  Fed.  66. 

23  Baker  v.  Gent,  9  Times  Rep. 
159;  Be  A  Debtor  (1907),  23  Times 
Rep.  169;  S.  F.  Edge,  L'd  v.  Wei- 
gel,  (1907),  97  L.  T.  447. 

24  Turner  v.  Hednesford  Gas  Co., 
3  Ex.  D.  145. 

25Furness  v.  Booth,  4  Ch.  D.  586; 


Harris    v.    Gamble,    6    C.    D.    748. 

26  Child  V.  Stenning,  5  Ch.  D.  695. 

27  Street  v.  Gover,  2  Q.  B.  D. 
498;  Alcoy,  etc.,  Co.  v.  Greenhill 
(1896),  1  Ch.  19.  "Annual  Prac- 
tice," 1912,  I,  361. 

28  Eyre  v.  Moreing,  W.  N.  1844, 
58.  See  Hodson  v.  Mochi,  8  Ch.  D. 
569. 

29  American  Guild  v.  Damon,  186 
N.  Y.  360. 


§  200] 


TIME    OF    FILING 


1149 


one  only  of  the  obligors  ^°  or  obligees  ^^  was  a  part}'  to  the  suit. 
§  200.  Time  of  filing  set-offs,  counter-claims  and  cross-bills. 
The  Equity  Kules  provide  for  the  assertion  of  set-offs  and  coun- 
ter-claims in  the  answer  of  the  defendant,^  which  must  be  filed 
within  twenty  days  after  service  of  the  subpa'ua,  unless  the  time 
is  onlai'ged.^  They  authorize  the  subsequent  filing  of  supplemen- 
tal pleadings  by  permission  of  the  court .^  Set-offs  and  counter- 
claims can  undoubtedly  then  be  filed,  provided  they  arose  subse- 
quent to  the  original  answer  or  the  complainant  was  ignorant  of 
them  when  .such  answer  was  made.*  •  Under  the  former  practice, 
a  cros.s-bill  might  be  filed  at  any  time  before  the  final  decree.^  A 
eross-bill  should  not  be  filed  before  the  answer  to  the  original 
bill.  It  should  regularly  be  filed  with,  or  immediately  after,  the 
defendant's  answer;^  but  may  be  allowed  any  time  before  the 
final  decree.'  Tinder  the  chancery  practice  a  cross-bill  was  not 
permitted  to  go  to  a  hearing  upon  the  depositions  already  pub- 
lished.^ In  a  case  where  the  defendant,  after  answer,  learned 
of  facts  tending  to  show  that  the  plaintiff  had  before  suit  parted 
with  all  interest  in  the  subject-matter  to  a  citizen  of  the  same 


30  Baldwin  v.  Briggs,  53  How.  80; 
Rpofford  V.  Rowan,  6  N.  Y.  St.  Rep. 
250;  P.  &  S.  Mfg.  Co.  v.  Noel,  60 
N.  Y.  Superior  Ct.  207,  affirmed  138 
N.  Y.  606. 

31  Windecker  v.  Mutual  Life  Ins. 
Co.,  12  App.  Div.  (N.  Y.)  73,  77 
N.  Y.  St.  Rep.  358,  43  N.  Y.  Supp. 
358;  Nat.  St.  Bank  v.  Boylan,  2 
Abb.  N.  C.  (N.  Y.)  216;  Bockover 
V.  Harris,  43  N.  Y.  Superior  Ct.  548. 

§  200.     1  Eq.  Rule  30. 

2Eq.  Rules  12,   16. 

3Eq.  Rule  34;    infra,  §231. 

4  Ibid. 

5  Morgan's  La.  &  T.  R.  &  S.  Co. 
V.  Texas  C.  R.  Co.,  137  U.  S.  171, 
34  L.  ed.  625,  a  cross-bill  for  a 
foreclosure  upon  a  default  subse- 
quent to  the  appointment  of  a  re- 
ceiver  in  a   bill   quia   timet. 

Allen  V.  Allen,  Henipst.  58.  A 
cross-bill  filed  before  the  complain- 
ant therein  has  filed  his  answer  to 


the  original  bill  might  be  stricken 
from  the  files  on  motion.  Ballard 
V.  Kennedy,  16  So.  327;  s.  c,  34 
Fla.  483. 

6Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1745;  White  v.  Buloid,  2  Paige  (N. 
Y.),  164;  Allen  v.  Allen,  Hempst. 
58. 

7  Morgan's  C.  &  T.  R.  S.  S.  Co. 
V.  Texas  C.  R.  Co.,  137  U.  S.  171, 
34  L.  ed.  625.  The  old  practice  un- 
der which  a  cross-bill  must  ordi- 
narily be  filed  before  publication 
has  been  abrogated.  Neal  v.  Fos- 
ter, 34  Fed.  496;  Rogers  v.  Reiss- 
ner,  31  Fed.  592;  Pullman's  P.  C. 
Co.  V.  Central  Tr.  Co.,  46  Fed.  261 ; 
Ilulier  V.  Diebold,  25  N.  J.  Eq.  170. 

8  Bassett  v.  Nosworthy,  102  Rep. 
Temp.  Finch,  103;  Field  v. 
SfhieflPelin,  7  .1.  Ch.  N.  Y.  25; 
approved  in  Mathieson  v.  Craven, 
247  Fed.  223,  228,  per  Bradford,  J. 


II.IO 


CKOSS-BILLS,    SET-OFFS   AND    COUNTER-CLAIMS 


L§201 


State  as  the  defendant,  the  proceedings  were  stayed  until  the 
complainant  answered  a  cross-bill,  charging  such  a  transfer.^ 

§  201.  Proceedings  upon  cross-bills.  It  was  the  better  prac- 
tice for  a  defendant  to  apply  for  leave  before  filing  a  cross-bill.* 
Permission  might  be  denied  for  laches.^  Ordinarily,  a  refusal  to 
grant  leave  would  not  be  reviewed  upon  an  appeal ;  ^  but  it  was 
held  that  a  cross-bill  by  a  party  to  the  suit  might  be  filed  with  the 
answer  without  permission  of  the  court.*  A  cross-bill  in  a  suit 
by  a  State  may  be  served  upon  the  Attorney-General  when  he 
filed  the  original  bill.^  It  lias  been  held  at  circuit  that  a  sub- 
poena to  answer  a  cross-bill  may,  by  express  leave  of  the  court, 
be  served  by  substitution  upon  the  attorney  for  the  complainant 
to  the  original  bill  when  his  client  is  beyond  the  jurisdiction  of 
the  court.6  In  one  case  the  court  said :  ' '  The  reason  of  this  rule 
would  seem  to  limit  it  in  equity  cases  to  cross-bills,  either  wholly 
or  partly  defensive  in  their  character,  and  to  deny  its  applica- 
tion to  cross-])ills  setting  up  facts  not  alleged  in  the  original  bill, 
and  which  new  facts,  though  they  relate,  as  they  must,  to  the 
subject-matter  of  the  original  bill,  are  made  the  basis  for  the 
affirmative  relief."'    Leave  to  make  substituted  service  was  re- 


9  Young  V.  Pott,  4  Wash.  521. 
But  see  Westinghouse  El.  &  N.  Co. 
V.  Mustard,  87  Fed.  336.  It  has 
been  said  that  an  objection  of  a 
defect  of  parties  must  precede  the 
filing  of  a  cross-bill.  Plum  v.  Smith 
(N.  J.  Ch.),  39  Atl.  1070. 

§  201.  1  Indiana  &  St.  L.  E.  Co. 
V.  Liverpool,  L.  &  G.  Ins.  Co.,  109 
U.  S.  168,  27  L.  ed.  895;  Brown  v. 
L.  C.  &  M.  W.  E.  Co.,  2  Wall.  283, 
17  L.  ed.  725;  International  T.  C. 
Co.  V.  Carmiehael,  44  Fed.  350 ;  Mer- 
cantile Tr.  Co.  V.  Missouri,  K.  &  T. 
Ey.  Co.,  41  Fed.  8;  Brush  El.  Co, 
V.  Brush-Swan  El.  Co.,  43  Fed.  701; 
Brown  v.  Bell,  4  Hay.  (Tenn.),  287; 
Indiana  Mfg.  Co.  v.  Nichols  &  Shep- 
ard  Co.,  190  Fed.  579.  Contra,  Neal 
V.  Foster,  34  Fed.  496,  498;  Beau- 
champ   V.  Putnam,  34  111.  378,  381. 

2  Under-Feed  Stoker  Co.  of  Amer- 
ica V.  Am.  Stoker  Co.,  169  Fed.  891. 


3  Indiana  &  St.  L.  E,  Co.  v.  Liv- 
erpool, L.  &  G.  Ins.  Co.,  109  U.  S. 
168,  27  L.  ed.  895.  Contra,  Beau- 
champ  V.  Putnam,  34  111.  378,  381. 

4  Christmas  Gold  Mining  Co.  v. 
Milliken,  200  Fed.  316,  and  cases 
cited. 

5  Port  Eoyal  &  A.  Ey.  Co.  v. 
South  Carolina,  60  Fed.  552. 

SLowenstein  v.  Glidewell,  5  Dill. 
325;  Kingsbury  v.  Buckner,  134  U. 
S.  650,  676,  33  L.  ed.  1047,  1057; 
Peay  v.  Schenek  &  Bliss,  Woolw. 
175;  Johnson  E.  E.  S.  Co.  v.  Union 
S.  &  S.  Co.,  43  Fed.  331.  But  see 
Eubber  Co.  v.  Goodyear,  9  Wall. 
807,  810,  811,  19  L.  ed.  587,  589, 
590  ;    §  165  and  citations. 

7  Caldwell,  J.,  in  Lowenstein  v. 
Glidewell,  5  Dill.  325,  328.  See 
Rubber  Co.  v.  Goodyear,  9  Wall. 
807,  810,  811,  19  L.  ed.  587,  589, 
590;    and  supra,  §  165. 


§201] 


PROCEEDINGS    UPON    CROSS-BILLS 


1151 


fused  in  a  case  where  the  i)laiiitiff.s  offered  to  stipulate  that  the 
matter  souprht  to  ])e  pleaded  by  cross-bill  might  be  set  up  by- 
answer  ;8  but  permitted  where  the  cross-bill  set  up  new  matter 
not  set  out  in  the  original  bill,  germane  to  the  case  made  by  the 
original  bill,  and  sought  to  make  such  new  matter  the  basis  of 
independent  ai^niiative  relief.®  Service  by  publication  of  a  sub- 
pcena  upon  a  cross-bill  was  held  to  be  improper.^*" 

It  has  been  held  that  a  cross-bill  may  be  dismissed  upon  mo- 
tion before  an  answer  or  a  hearing  when  it  sets  up  matter 
improper  for  such  a  pleading,  even  though  it  was  filed  by  leave 
of  the  court."  A  demurrer  might  however,  be  filed  to  a  cross- 
bill for  want  of  equity,  for  multifariousness,  for  presenting  mat- 
ter improper  for  a  cross-bill,  or  for  objections  which  would  be 
grounds  of  demurrer  to  an  original  bill.^^  ^Vhere  a  cross-bill  in 
equity  asked  relief  foreign  to  the  litigation,  in  behalf  of  parties 
who  had  a  right  of  action  at  law,  it  was  held  that  it  should  be 
dismissed  "without  prejudice,"  and  not  "for  want  of  equity."  " 
Since  demurrers  have  been  abolished  an  objection  to  a  cross-bill 
or  counter-claim  should  be  made  by  a  motion  to  strike  out  the 
same.i*  When  the  equities  set  forth  in  the  cross-bill  were  doubt- 
ful a  motion  to  strike  out  was  denied,!^  and  a  demurrer  subse- 
quently sustained. 1^  It  was  held  that  an  order  for  an  injunc- 
tion granted  at  defendant's  motion  to  preserve  the  status  quo 
was  not  an  adjudication  of  the  right  of  set-off.^''  Upon  demurrer, 
part  of  a  cross-bill  was  sustained  as  substantially  a  plea  to  the 
jurisdiction.^' 

The  testimony  taken  under  the  cross-bill  may  be  read  for  or 


8  Heath  v.  Erie  Ry.  Co.,  9  Blatchf. 
316. 

SGasquet  v.  Fidelity  T.  &  S.  Y. 
A.,  C.  C.  A.,  57  Fed.  80  reversing 
Fidelity  T.  &  S.  Y,  Co.  v.  Mobile 
St.  By.  Co.,  53  Fed.  850.  See 
Lowcustein  v.  Glidewell,  50  Dillon, 
325;  Ledbetter  v.  Mandell,  141  App. 
Div.  556;  affirmed  205  N.  Y.  537. 

10  Webster  Loom  Co.  v.  Short,  10 
Off.  Gaz.  1019. 

11  Dickerman  v.  Northern  Trust 
Co.,  80  Fed.  450. 

12  Harrison  v.  Perea,  168  U.  S. 
311,  42  L.  ed.  478;   American  &  G. 


M.  &  I.  Corp.  V.  Marqiiani,  62  Fed. 
960. 

13  Barrett  v.  Short,  41  111.  App. 
25. 

14  Motion  Picture  Patent  Co.  v. 
Eilair  Film  Co.,  208  Fed.  416; 
Ohio  Brass  Co.  v.  Hartman  El.  Mfg. 
Co.,  243  Fed.  629. 

15  Knauth,  Nachod  &  Kuhne  v. 
Lovell,  C.  C.  A.,  200  Fed.  403. 

I6L0V0II  V.  Latham  &  Co.,  211 
Fed.  374. 

17  .1.  L.  Owens  v.  Officer,  C.  C.  A., 
244  Fed.  47. 

18  Marvin  v.  ElHs,  9  Fed.  367. 


1152 


CROSS-BILLS,    SET-OFFS    AND    COUNTER-CLAIMS 


[§201 


against  the  original  bill ;  and  the  testimony  taken  under  the 
original  bill  can  be  read  for  or  against  the  cross-bill.  In  either 
case  a  formal  order  granting  leave  to  do  this,  "saving  all  just 
exceptions,"  should  first  be  obtained  ex  parte }^  Both  bills 
were  usually  heard  together  in  the  court  of  first  instance  ^^ 
and  upon  appeal. ^^  Where  an  answer  to  the  cross-bill  alleged 
an  affirmative  defense  thereto,  a  motion  by  complainant  for 
judgment  upon  the  pleadings  was  denied.^^  When  a  decree 
had  been  made  dismissing  a  cross-bill  before  a  decree  upon  the 
original  bill,  it  was  held  that  an  appeal  therefrom  taken  before 
a  decree  upon  the  original  bill  must  be  dismissed.^^  A  decree  upon 
the  original  bill  would  supersede  a  previous  decree  upon  a  cross- 
bill if  the  two  were  inconsistent. 2* 

Where  the  cross-bill  sought  affirmative  relief,  the  voluntary 
dismissal  of  the  original  bill  would  not  dismiss  the  cross-bill.^^ 
It  was  otherwise  w^here  the  cross-bill  merely  sought  discovery .^^ 
It  was  said  that  a  dismissal  of  the  original  bill  by  the  court  after 
a  hearing  operated  as  a  dismissal  of  a  cross-bill  between  the 
defendants,  even  though  the  cross-bill  showed  a  good  case  for 
relief;  "but  as  a  cross-bill,  it  must  follow  the  fate  of  the  original 
bill.  "27    But  the  later  authorities  held  that  where  the  cross-bill 


19Danieirs  Ch.  Pr.  (5th  Am.  ed. ) 
1552,  1553;  Lubiere  v.  Geuou,  2 
Ves.  Sen.  579, 

20Ayres  v.  Carver,  17  How.  591, 
15  L.  ed.  179;  Moore  v.  Hunting- 
ton, 17  Wall.  417,  422,  21  L.  ed. 
642,  643;  Ex  pcurie  Eailroad  Co.,  95 
U.  S.  221,  24  L.  ed.  355;  Daniell's 
Ch.  Pr.  (2d  Am.  ed.)  1751.  See 
Blythe  v.  Hinckley,  84  Fed.  228. 

21Ayres  v.  Carver,  17  How.  591, 
15  L.  ed.  179;  Ex  parte  Eailroad 
Co.,  95  U.  S.  221,  24  L.  ed.  355. 

22Barnett  v.  Kunckle,  C.  C.  A., 
256  Fed.  644. 

23  Ayres  v.  Carver,  17  How.  591, 
15  L.  ed.  179. 

24  Ea;  parie  Eailroad  Co.,  95  TJ. 
S.  221,  225,  24  L.  ed.  355,  356; 
Blythe  v.  Hinckley,  84  Fed.  228. 

25  Lowenstein  v.  Glidewell,  5  Dill. 
S25;   Chicago  &  A.  B.  Co.  v.  Union 


E.  M.  Co.,  109  U.  S.  702,  27  L.  ed. 
1081. 

26  Donohoe  v.  Marposa,  L.  &  M. 
Co.,  1  Pae.  Coast  L.  J.  211,  219. 

27  Mr.  Justice  Field  in  Dows  v. 
Chicago,  11  Wall.  108,  112,  20  L. 
ed.  65,  67;  U.  S.  v.  California  & 
Oregon  Land  Co.,  192  U.  S.  355, 
360,  48  L.  ed.  476,  479.  See  also 
Cross  V.  De  Valle,  1  Wall.  5,  14,  17 
L.  ed.  515,  518.  But  see  Wabash, 
St.  L.  &  P.  By.  Co.  V.  Central  T. 
Co.,  22  Fed.  138,  142;  Donohoe  v. 
Mariposa  L.  &  M.  Co.,  1  Pac.  Coast 
L.  J.  211;  Jesup  v.  Illinois  Cent.  B. 
Co.,  43  Fed.  483,  495.  It  was  held 
that  where  the  original  bill  was  dis- 
missed "without  prejudice,"  the 
cross-bill  must  also  be  dismissed 
' '  without  prejudice. ' '  Blewitt  v. 
Blewitt  (Miss.),  12  So.  249.  Where 
one   who   filed   a   cross-bill   was  held 


§201 J 


I'KOCEEDINGS    UPON    CRUSH-BILLS 


1153 


was  not  purely  defensive,  but  sought  original  relief  and  eon- 
tained  in  itself  sufficient  allegations  for  an  original  bill,  it  might 
not  be  affected  b}'  such  a  disinissal,^*  and  that  where  there  was 
no  jurisdiction  in  equity  of  the  matter  set  up  by  the  original 
bill,  the  filing  of  a  cross-bill  alleging  matters  of  equitable  cogni- 
zance gave  the  court  jurisdiction  of  the  original  bill  as  well,^^ 
at  least  where  the  cross-bill  might  have  been  sustained  as  an 
original  bill.^°  When  an  abatement  took  place  after  a  cross-bill 
had  been  filed,  it  seems  that  there  should  have  been  a  bill  of 
revivor  filed  in  both  the  original  and  the  cross  cause.^^ 

Where  a  cross-bill  assumed  the  character  of  an  original  bill  it 
was  dismissed  for  jurisdiction  if  the  parties  to  the  controversy 
thereby  presented  were  citizens  of  the  same  State  and  no  Federal 
(luestion  was  involved. ^'^  Otherwise,  proceedings  upon  cross- 
bills were  substantially  the  same  as  those  upon  original  bills.^^ 


to  have  no  standing  in  eourt  it  was 
held  that  other  parties  who  at- 
tempted to  eonie  in  under  the  cross- 
bill must  abide  by  the  result  de- 
clared against  him  who  filed  it. 
Stainbaek  v.  Junk  Bros.  L.  &  Mfg. 
Co.,  98  Tenn.  306,  39  S.  W.  530. 
See  also  Eichman  v.  Donnell,  53  N. 
J.  Eq.  32. 

28  San  Diego  Flume  Co.  v. 
Souther,  90  Fed.  164,  167;  Sunflower 
Oil  Co.  V.  Wilson,  142  U.  S.  313, 
35  L.  ed.  1025;  Holgate  v.  Eaton, 
116  U.  S.  33,  29  L.  ed.  538;  Chi- 
cago &  A.  E.  Co.  V.  Union  EoUing 
Mill  Co.,  109  U.  S.  702,  27  L.  ed. 
1081;  Jackson  v.  Simmons,  C.  C.  A., 
98  Fed.  768;  Coogan  v.  McCarron, 
50  N.  J.  Eq.  611,  25  Atl.  330; 
Kirby  v.  Am.  Soda  Fountain  Co., 
194  U.  S.  141,  48  L.  ed.  911;  Blythe 
V.  Hinckley,  84  Fed.  228,  236,  237; 
Badger  Gold  Min.  &  Mill  Co.  v. 
Stockton  Gold  &  Copper  Min.  Co., 
139  Fed.  838.  In  Cohimbus  v.  Mer- 
cantile Tr.  Co.,  218  U.  S.  645,  663, 
54  L.  ed.  1193,  1199.  the  ;-omplain- 
ant  sued  to  enjoin  an  ai-t  alle;<ed 
to    be    in    violation    of    a    contract 


and  defendant  filed  a  cross-bill 
seeking  a  declaration  that  the  con- 
tract had  been  forfeited  for  non- 
performance; it  was  held  that  a  de- 
cree dismissing  the  original  bill  up- 
on the  merits  must  contain  a  clause 
granting  the  prayer  of  the  cross- 
bill. But  see  U.  S.  v.  California  & 
Oregon  Land  Co.,  192  U.  S.  355, 
360,  48  L.  ed.  476,  479. 

29  Sanders  v.  Eiverside,  C.  C.  A., 
118  Fed.  720. 

30  Kirby  v.  Am.  Soda  Fountain 
Co.,  194  U.  S.  141,  145,  48  L.  ed. 
911,  912. 

31  Story  's  Eq.  PI.,  §  363. 
32Patton    V.    Marshall,    173    Fed. 

;<50. 

33  See,  however,  Lautz  v.  Gordon, 
28  Fed.  264;  Puetz  v.  Bransford,  31 
Fed.  458.  For  a  case  where  an  an- 
swer to  a  crossbill  was  held  respon- 
sive, see  Prentiss  Tool  &  Supply  Co. 
V.  Godchaux,  66  Fed.  234.  See  on 
the  general  subject  Noel  v.  King,  2 
Madd.  392;  Hannah  v.  Hodgson,  30 
Beav.  12;  Gray  v.  Haig,  13  Beav. 
65. 


CHAPTER  XI. 

REPLIES. 

§  202.  Definition  and  history  of  replies.  A  reply  is  a  plead- 
ing by  which  the  plaintiff  puts  in  issue  the  matters  pleaded  in  a 
defendant's  answer.  Thoy  were  formerly  called  replications.^ 
Replications  were  formerly  of  two  kinds,  general  and  special.^ 
A  general  replication  consists  of  a  general  denial  of  the  truth 
of  the  defendant's  plea  or  answer,  and  of  the  sufficiency  of  the 
matter  alleged  therein  to  bar  the  plaintiff's  suit,  together  with 
an  assertion  of  the  truth  and  sufficiency  of  the  bill.^  A  special 
replication  sets  up  new  matter  in  avoidance  of  a  substantive  de- 
fense contained  in  the  answer  or  plea.*  To  this  the  defendant 
was  obliged  to  file  a  rejoinder,  giving  the  discovery  required 
in  it.^  This  might  then  be  succeeded  by  a  sur-rejoinder  and  a 
rebutter.^  Special  replications  and  their  consequences  were,  on 
account  of  the  inconvenience  therefrom  resulting,  almost  obsolete 
by  the  time  of  Lord  Eldon.''  A  special  replication  to  the  answer 
was  forbidden  by  the  Equity  Rules  of  1842,  which  provided  that 
"no  special  replication  to  any  answer  shall  be  filed.  But  if 
any  matter  alleged  in  the  answer  shall  make  it  necessary  for 
the  plaintiff  to  amend  his  bill,  he  may  have  leave  to  amend  the 
same  with  or  without  the  payment  of  costs,  as  the  court  or  a 
judge  thereof  may  in  his  discretion  direct."  ^ 

The  body  of  a  general  replication  \vas  substantially  in  the 
following  form :     ' '  This  repliant,  saving  and  reserving  to  him- 

§  202.     1  Mason  v.  Hartford,  P.  &  7  Mitf  ord 's  PI.,  ch.  3;  Story's  Eq. 

F.E.  Co.,  10  Fed.  334.  PI.,  §  878. 

2  Mitf  ord 's  PI.,  ch.  3.  8  Rule  45  of  1842.     See  Mason  v. 

3  Story's   Eq.   PI.,    §878.       .  Hartford,  P.  &  P.  R.   Co.,  10  Fed. 

4  Story's  Eq.  PI.,  §878.  334;    Nattier  v.  Hinde,   7  Pet.  252, 
6  Mitf  ord 's  PI.,  ch.  3;  Story's  Eq.  273,  8  L.  ed.  675,  683;   Duponti  v. 

PI.,  §  878.  Mussy,  4  Wash.  128;  Wren  v.  Spen- 

6  Mitf  ord 's  PL,  ch.  3;  Story's  Eq.       eer  O.  Mfg.  Co.,  18  Off.  Gaz.  857. 
PI.,   §  878. 

1154 


§  203 J  WHEN    KEPLY    SHOUIA)   BE    FILED  1155 

self  all  and  all  inauner  of  advantage  of  exception,  which  may 
be  had  and  taken  to  the  manifold  errors,  uncertainties,  and 
insufficiencies  of  the  answer  of  the  said  defendants,  for  replica- 
tion thereunto,  saith,  that  he  doth  and  will  aver,  maintain,  and 
prove  his  said  bill  to  be  true,  certain,  and  sufficient  in  the  law 
to  be  answered  unto  ])y  the  said  defendants,  and  that  tlie  answer 
of  the  said  defendants  is  very  uncertain,  evasive,  and  insufficient 
ill  hiw,  to  be  replied  unto  by  his  repliant;  without  that,  that  any 
other  matter  oi'  thing  in  the  said  answer  contained,  material 
as  effectual  in  the  law  to  be  replied  unto,  confessed  or  avoided, 
traversed  or  denied,  is  true;  all  which  matters  and  things  this 
repliant  is  ready  to  aver,  maintain,  and  prove  as  this  honorable 
court  shall  direct,  and  humbly  prays  as  in  and  by  his  said  bill 
he  hath  already  prayed."*  The  signature  of  counsel  was  un- 
necessary.i'*  Re])lications  have  now  been  abolished;  and  the  new- 
Equity  Rules,  following  the  New^  York  Code  of  Procedure  and 
the  English  ord(>rs  in  chancery,  now  provide  as  follows. 

§203.  When  a  reply  should  be  filed.  "Unless  the  answer 
assert  a  set-off  or  counter-claim,  no  reply  shall  be  required  with- 
out special  order  of  the  court  or  .judge,  l)ut  the  cause  shall  be 
deemed  at  issue  upon  the  filing  of  the  answer,  and  any  new  or 
affirmative  matter  tlierein  shall  be  deemed  to  be  denied  by  the 
plaintiff.  If  the  answer  include  a  set-off  or  counter-claim,  the 
party  against  whom  it  is  asserted  shall  reply  within  ten  da}^s 
after  the  filing  of  the  answer,  unless  a  longer  time  be  allowed 
by  the  court  or  judge.  If  the  counter-claim  is  one  which  affects 
the  rights  of  other  defendants  they  or  their  solicitors  shall  be 
served  with  a  copy  of  the  same  within  ten  daj's  from  the  filing 
thereof,  and  ten  days  shall  be  accorded  to  such  defendants  for 
filing  a  reply.  In  default  of  a  reply,  a  decree  pro  confesso  on 
the  counter-claim  may  be  entered  as  in  default  of  an  answer  to 
the  bill."^  Where  there  are  several  defendants  a  replication 
should  be  filed  within  the  prescribed  time  after  one  of  them 
has  filed  an  answer  with  a  counter-claim,  although  the  others 
may  not  have  done  so,'^  and  a  separate  replication  after  the 
other  answers  have  come  in  if  they  set  up  counter-claims.  It 
has  been  held  that  Ihe  pendency  of  a  motion  affecting  the  an- 

9  Story's  Eq.  PI.,  §  878,  note  4.  §  20.3.     1  See  Smith's  Ch.  Pr.   (2.1 

10  Story's    Eq.    PI.,    §881;    Dan-       Eng."  ed.),  vol.  i,  p.  336. 

iell's  Ch.  Pr.   (4th  Am.  ed.)   830.  2  Allis  v.  Stowell,  5  Fed.  203. 


1156 


REPLIES 


[§203 


swer  will  excuse  the  plaintiff  from  replying  until  the  motion  has 
been  decided.^  The  court  exercises  great  liberality  in  allowing 
a  reply  filed  too  late  to  stand.*  The  taking  of  testimony  by  the 
defendant,  or  any  other  proceeding  taken  by  him  in  the  cause, 
might  be  held  a  waiver  of  his  right  to  have  a  counter-claim  taken 
as  confessed  for  want  of  a  reply. ^  An  objection  upon  this  ground 
cannot  be  raised  for  the  first  time  upon  appeal.^  Formerly 
after  a  cause  had  been  heard  upon  bill  and  answer,  the  court 
would  rarely  allow  a  replication  to  be  filed ;  "^  but  it  was  said : 
that  permission  to  file  the  replication  should  be  granted  when 
the  suit  was  set  down  for  such  hearing  in  good  faith,  for  the 
purpose  of  testing  the  sufficiency  of  a  defense  in  the  answer.^ 
When  a  complainant  is  in  default  .for  not  filing  a  replication  in 
due  time,  it  is  improper  to  grant  him  any  relief  not  justified 
by  admissions  in  the  answer.^  The  court  may  grant  leave  to 
withdraw  a  reply,  and  amend,  or  have  the  cause  set  down  for  a 
hearing  upon  bill  and  answer.^" 

Where  a  defense  pleaded  in  an  answer  is,  upon  its  face,  con- 
clusive and  raises  but  a  single  point,  a  reply  should  usually  be 
ordered.  Where  the  answer  contains  no  counter-claim,  a  reply 
should  be  stricken  out."  In  New  York,  replies  have  been  or- 
dered to  defenses  setting  up  the  statute  of  limitations,!^  jj^t 
not  a  foreign  statute  of  limitations ;  ^^  the  statute  of  frauds ;  i* 


3Peiree  v.  "West's  Ex'rs,  Pet.  C. 
C.  351;  Sayles  v.  Erie  Ey.  Co.,  2 
N.  J.  L.  J.  212;  Fischer  v.  Hayes, 
6  Fed.  76;  s.  c,  19  Blatchf.  26; 
Jones  V.  Brittan,  1  Woods,  667 ; 
Potts  V.  Alexander,  118  Fed.  885, 
886;  approving  text,  U.  S.  v.  Bar- 
ber Lumber  Co.,  169  Fed.  184. 

4  Fischer  v.  Hayes,  6  Fed.  76; 
s.  c,  19  Blatchf.  26. 

5  Jones  V.  Brittan,  1  Woods,  667; 
Fischer  v.  Hayes,  6  Fed.  76;  s.  C, 
19  Blatchf.  26;  Reynolds  v.  Craw- 
fordsville  First  Nat.  Bank,  112  U. 
S.  405,  28  L.  ed.  733. 

6  Clements  v.  Moore,  6  Wall.  299, 
18  L.  ed.  786;  Fretz  v.  Stover,  22 
Wall,  198,  22  L.  ed.  769. 

7  Bullinger  v.  Mackey,  14  Blatchf. 


355 ;  Peirce  v.  West 's  Ex  'rs.  Pet.  C. 
C.  351. 

SBesson   &   Co.   v.   Goodman,   147 

Fed.  887. 

9  Harrington  v.  Union  Oil  Co., 
144  Fed.  236. 

10  Rogers  v.  Goore,  17  Ves.  130 ; 
Brown  v.  Ricketts,  2  J.  Ch.  (N.  Y.) 
425;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
479;  Ibid.   (3d  Am.  ed.)   830. 

llGoodno  v.  Hotchkiss,  234  Fed. 
514. 

12Hubbell  v.  Fowler,  1  Abb.  N. 
S.   1. 

ISOlsen  v.  Singer  Mfg.  Co.,  138 
App.  Div.  467;  122  N.  Y.  Supp. 
822;  Cavanagh  v.  Oceanic  S.  S.  Co., 
30  St.  Rep.  532 ;  9  N.  Y.  Supp.  198. 
But   see  Perls  v.  Metropolitan  Life 


§203J 


WHEN    REPLY    SHOULD    BE    PILED 


1157 


a  discharge  in  bankruptcy ;  ^^  marriage;^®  divorce;"  special 
pai'tnci'siiip ;  ^*  ratification  ;  ^^  settlement  of  previous  litiga- 
tion 5^°  a  judgment  in  another  suit ;  ^^  a  previous  assignment  of 
the  claim  in  suit ;  ^^  non-payment  of  insurance  premiums  and 
false  statements  in  an  application  for  a  policy  ;23  foreclosure.^* 
In  New  York,  a  reply  will  not  be  directed  to  the  matter  al- 
leged in  an  answer  which  does  not  constitute  a  defense,*^  nor  to 
defenses  which  have  been  negatived  in  the  plaintiff's  pleading,'^^ 
nor  where  the  matter  had  been  thrashed  out  upon  a  previous 
application  for  a  receiter,'^'''  nor  to  evidentiary  facts  in  an  an- 
swer,^^  nor  to  a  defense  which  is  supported  by  lengthy  state- 
ments of  facts  or  documents ;  ^^  nor  where  the  complaint  alleged 


Ins.  Co.,  lo  Daly,  517;  29  St.  Eep. 
409,  8  N.  Y.  Supp.  ;J.S2;  New  York, 
L.  E.  &  W.  E.  R.  Co.  V.  Eobinson, 
25  Al)b.  N.  C.  116;  12  N.  Y.  Supp. 
208. 

14  Giiinzburg  v.  Joseph,  141  App. 
Div.  472 ;  126  N.  Y.  Supp.  324. 

16  Poillon  V.  Lawrence,  43  N,  Y. 
Superior  Ct.  385.  See  Poillon  v. 
Lawrence,  77  N.  Y.  207. 

16  Link  v.  Sprague,  cited  by  eoun- 
sel  in  Brinkerhoft"  v.  Brinkerhoff,  8 
Abb.  N.  C.  207. 

17  Brinkerhoff  v.  Brinkerhoff,  8 
Abb.  N.  C.  207. 

18  Williams  v.  Kilpatrick,  21  Abb. 
N.  C.  61;  Hartfonl  Nat.  Bank  v. 
Beinecke,  15  App.  Div.  474;  44  N. 
Y.  Supp.  486;  26  N.  Y.  Civ.  Pro. 
E.  226. 

19  Steinway  v.  Steinway,  26  N.  Y. 
Supp.  657,  52  St.  Eep.  660;  Eich- 
anls  V.  Oreason,  128  App.  Div.  320, 
112  N.  Y.  Supp.  675. 

20Seaton  v.  Garrison,  116  App. 
Div.  ;J01.  See  Twaniley  v.  McKen- 
nell,  137  App.  Div.  574,  122  N.  Y. 
Supp.  237. 

21  Timble     v.     Eussell,     41     Misc. 

577;    85   N.   Y.   Supp.    109.        Held 

otherwise    when    the    judgment    was 

in   another  State;    Columbus,  H,  V. 

Fed.  Prac.  Vol.  II— 3 


&  T.  B.  E.  Co.  V.  Ellis,  25  Abb.  N. 
C.  150;  11  N.  Y.  Supp.  768,  19  Civ. 
Pro.  E.  66. 

22  Toplitz  V.  Levering,  71  App. 
Div.  37;   75  N.  Y.  Supp.  678. 

23Schwan  v.  Mutual  Trust  F.  L. 
Ass'n,  9  Civ.  Pro.  E.  82. 

24  Timble  v.  Eussell,  41  Misc.  (N. 
Y.)   577,  85  N.  Y.  Supp.  109. 

25Voisin  V.  Mitchell,  96  N.  Y. 
Supp.  386;  N,  Y.,  L.  E.  &  W.  R.  E. 
Co.  V.  Eobinson,  25  Abb.  N.  C.  (N. 
Y.)  116,  12  N.  Y.  Supp.  208;  Co- 
lumbus, H.  V.  &  T.  E.  E.  Co.  V. 
Ellis,  25  Abb.  N.  C.  (N.  Y.)  150, 
11  N.  Y.  Supp.  768;  Johnson  v.  An- 
drews, 34  Misc.  (N.  Y.)  89,  68  N. 
Y.  Supp.  764;  City  Equity  Co.  v. 
Bodine,  141  App.  Div.  (N.  Y.)  907, 
126  N.  Y.  Supp.  439. 

26  Avery  v.  N.  Y.  C.  &  H.  E.  E. 
E.  Co.,  6  N.  Y.  Supp.  547,  24  St. 
Eep.  918  affirmed  117  N.  Y.  660; 
Shaff  V.  United  Surety  Co.,  142  App. 
Div.  465,  127  N.  Y.  Supp.  8. 

27  Hallenborg  v.  Greene,  87  App. 
Div.  259;  84  N.  Y.  Supp.  319. 

28  Steinway  v.  Steinway,  26  N.  Y. 
Supp.  657;  52  St.  Eep.  660. 

29  Zeiner  v.  Mutual  Eeserve  Fund 
Life  Ass'n,  51  App.  Div.  607,  64 
N.  Y.  Supp.  63;  Columbus,  H.  V.  & 


1158 


REPLIES 


[§204 


compliance  by  plaintiff  with  all  the  conditions  of  the  contract 
upon  which  he  sued,  and  the  answer  interposed  a  general  denial 
and  specified  conditions  which  it  alleged  plaintiff  had  not  per- 
formed.^*! It  was  held  that  the  right  to  compel  a  reply  was 
waived  by  a  delay  until  the  action  was  referred  and  noticed 
for  hearing,^^  but  not  by  service  of  a  cross-notice  of  trial. ^^ 

The  Equity  Rules  are  silent  as  to  whether,  when  the  plaintiff 
wishes  to  meet  a  defense  by  confession  and  avoidance,  he  can 
be  permitted  to  reply  against  the  opposition  of  the  defendant. 
In  England,  the  rules  expressly  give  the  plaintiff  the  right  to 
reply  to  any  defense  in  an  answer  by  leave  of  the  Circuit 
Court.^^  Under  the  New  York  Code  of  Civil  Procedure,  a  de- 
fense in  an  answer  ma.y  be  met  by  confession  and  avoidance 
without  any  reply.^* 

§  204.  Effect  of  reply.  According  to  the  former  practice, 
the  complainant  by  filing  a '  general  replication  admitted  the 
sufficiency  as  regards  discovery,^  and  as  regards  the  form  of 
pleading,^  but  not  the  sufficiency  as  a  defense,^  of  the  plea  or 
answer  to  which  it  was  filed,  and  denied  e\ery  allegation  in  the 
plea  or  answer  which  was  not  directly  responsive  to  the  bill.* 

Where  the  plaintiff's  pleadings  stated,  that  he  had  been  ap- 
pointed substituted  trustee  in  a  proceeding  for  the  dissolution 
of  a  corporation,  and  that  a  prior  decree  had  vested  in  his  prede- 
cessor all  the  corporation's  property  and  things  of  action,  to 


T.  E.  R.  Co.  V.  Ellis,  25  Abb.  N.  C. 
150;  11  N.  Y.  Supp.  768;  19  Civ. 
Proc.  R.   66. 

30  Burr  v.  Union  Surety  &  Guar- 
anty Co.,  86  App.  Div.  (N.  Y.)  545, 
8.S  N.  Y.  Supp.  756. 

31  Sterling  v.  Mut.  Life  Ins.  Co., 
6  State  Eep.   (N.  Y.)   96. 

32  Cavanagh  v.  Oceanic  S.  S.  Co., 
.30  State  Rep.  (N.  Y.)  532,  9  N.  Y. 
Supp.  198. 

33  Order  XIII.  Ann.  Cas.  1913,  p. 
395. 

34  Met.  L.  I.  Co.  v.  Meeker,  85  N. 
Y.  614. 

§  204.  1  Story 's  Eq.  PI.,  §  877 ; 
Hughes  V.  Blake,  6  Wheat.  453,  5 
L.  ed.  303. 


2McKim  v.  White  Hall  Co.,  2 
Md.  Ch.  510. 

3  Equity  Rule  33;  Everts  v.  Ag- 
nes, 4  Wis.  343 ;  Rule  33 ;  Matthews 
v.  Lalance  &  G.  Mfg.  Co.,  2  Fed. 
232.  But  see  Myers  v.  Dorr,  13 
Blatehf.  22;  Theberath  v.  Rubber 
&  C.  H.  T.  Co.,  5  Bann.  &  A.  584. 

4  Humes  v.  Scruggs,  94  U.  S.  22, 
24  L.  ed.  51.  It  was  held  that  the 
general  replication  put  in  issue  the 
validity  of  a  deed  set  up  in  the 
answer  although  not  questioned  by 
the  bill.  Boyd  v.  Hawkins,  2  Dev. 
(N.  C.)  Eq.  195.  But  see  McClane 's 
Adm'x  V.  Shepherd's  Ex'x,  21  N.  J. 
Eq.  76;  Cowart  v.  Perrine,  21  N. 
J.  Eq.  101. 


§  205]  FRAME   OF    REPLY  11. ")9 

which  he  had  succeeded,  and  tliat  lie  had  received  authority 
to  collect  all  its  debts  and  claims;  it  was  held  that  no  force  could 
be  given  to  his  denial  in  a  replication  that  the  corporation  and 
its  ofificers  after  the  entry  of  the  first  decree  were  without  con- 
ti'ol  of  its  affairs  or  management.* 

§  205.  Frame  of  a  reply.  The  full  title  of  the  cause,  as  it 
stands  at  the  time  the  reply  is  filed,  must  be  set  forth  in  the 
heading  of  the  reply,  but  only  the  names  of  such  of  the  de- 
fendants as  have  appeared  should  be  in.serted  or  inferred  to  in  its 
body.  If  a  defendant's  name  has  been  mis.si)elled  bj'  the  plain- 
tiff, and  such  defemlant  has  corrected  the  same  by  his  answer, 
but  the  plaintiff  has  not  afterwards  amended  his  bill  with  re- 
spect to  such  name,  the  correction  should  be  shown  in  the  title 
of  the  reply.  In  the  body  of  the  reply,  however,  the  correct 
name  only  should  be  inserted.  When  any  defendant  has  died 
since  the  bill  was  filed,  the  words  "since  deceased"  should  fol- 
low his  name  in  the  title,  but  his  name  should  be  omitted  in  the 
body  of  the  replication.  If  the  plaintiff  joins  issue  with  all  the 
defendants  their  names  need  not  be  repeated  in  the  bod.y ;  it  is 
sufificient  in  such  case  to  designate  them  as  "all  the  defendants;" 
but  if  he  does  not  join  issue  with  all,  the  names  of  the  defend- 
ants must  be  set  out  in  the  body.^  A  reply  should  be  signed  in- 
dividually by  one  or  more  of  the  solicitors  for  the  complainant.^ 
Unless  the  complainant  appears  in  person  in  the  ease,  it  would 
probably  be  sufficient  for  the  defendant  to  sign  the  same  individ- 
ually.^ It  is  the  safer  practice  to  have  his  individual  signature 
acknowledged.  It  has  been  held,  in  England,  that  a  reply  must 
not  set  up  new  claims.* 

6  Strout  V.  United  Shoe  Machinery  2  Eq.  Eule  24. 

Co.,  208  Fed.  646.  3  U.  S.  R.  S.,  §  747. 

§  205.     1  Daniel!  's    Cli.    Pr.     (4th  4  Williamson  v.  L.  &  W.  Ry.  Co., 

Am.  ed.)   830,  831.  12  Ch.  D.  787. 


CHAPTER  XII. 

AMEKDMENTS  OF  WRITS,  PROCESS  AND  PLEADINGS,  AT  LAW  AND 

IN  EQUITY 

§  206.  Amendments.  In  general.  The  Revised  Statutes  pro- 
vide: "No  summons,  writ,  declaration,  return  process,  judgment, 
or  other  proceeding  in  civil  causes,  in  any  court  of  the  United 
States,  shall  be  abated,  arrested,  quashed,  or  reversed  for  any 
defect  or  want  of  form ;  but  such  court  shall  proceed  and  give 
judgment  according  as  the  right  of  the  cause  and  matter  in  law 
shall  appear  to  it,  without  regarding  any  such  defect,  or  want 
of  form,  except  those  which,  in  cases  of  demurrer,  the  party 
demurring  specially  sets  down,  together  with  his  demurrer  as 
the  cause  thereof;  and  such  court  shall  amend  every  such  defect 
and  want  of  form  other  than  those  which  the  party  demurring 
so  expresses ;  and  may  at  any  time  permit  either  of  the  parties 
to  amend  any  defect  in  the  process  or  pleading,  upon  such  condi- 
tion as  it  shall,  in  its  discretion,  and  by  its  rules,  prescribe."^ 

"In  reference  to  amendments  of  equity  pleadings  the  courts 
have  found  it  impracticable  to  lay  down  a  rule  that  would  gov- 
ern all  cases.  Their  allowance  must,  at  every  stage  of  the  cause, 
rest  in  the  discretion  of  the  court ;  and  that  discretion  must  de- 
pend largely  on  the  special  circumstances  of  each  case.  It  may 
be  said,  generally,  that  in  passing  upon  applications  to  amend, 
the  ends  of  justice  should  never  be  sacrificed  to  technical  rules 
of  practice.  Undoubtedly  great  caution  should  be  exercised 
where  the  application  comes  after  the  litigation  has  continued 

§  206.     1  U.  S.  E.  S.,  §  954.     See  Ted.  391 ;  V.  S.  v.  Batchelder,  9  Int. 

Parks  T.    Turner,    12   How.   39,    46,  Eev.   Eec.  98;   Warren  v.  Moody,  9 

13  L.  ed.  883,  887 ;  Eoaeh  v.  Huliugs,  Fed.   673 ;   Thomas  v.  U.  S.,   15  Ct. 

16  Pet.  319,  10  L.  ed.  979;    Tilton  CI.  242;  Eussell  v.  U.  S.,  15  Ct.  CI. 

V.  Cofield,  93  U.  S.  163,  167,  23  L.  168;    Gulf,   C.   &   S.   F.   Ey.    Co.   v. 

ed.  858,  859;  Jacob  v.  U.  S.,  Brock.  James,  48  Fed.  148,  150;  Am.  Alkali 

520,  525;  Eosenbach  v.  Dreyfuss,  1  Co.  v.  Campbell,  113  Fed.  398;  Great 

116U 


§  206]  AMENDMENTS    IX    GENERAL  1161 

for  some  time,  or  when  the  granting  of  it  would  cause  serious 
inconvenience  or  expense  to  the  opposite  side."^ 

The  act  of  March  3,  1915,  provides  concerning  all  the  courts 
of  the  United  States:  "In  case  any  of  said  courts  shall  find 
that  a  suit  at  law  should  have  been  brought  in  equity  or  a  suit 
in  equity  should  have  been  brought  at  law,  the  court  shall  order 
any  amendments  to  the  pleadings  which  may  be  necessary  to 
conform  them  to  the  proper  practice.  Any  party  to  the  suit 
shall  have  the  right,  at  any  stage  of  the  cause,  to  amend  his 
pleadings  so  as  to  obviate  the  objection  that  his  suit  was  not 
brought  on  the  right  side  of  the  court.  The  cause  shall  proceed 
and  be  determined  upon  such  amended  pleadings.  All  testi- 
mony taken  before  such  amendment,  if  preserved,  shall  stand 
as  testimony  in  the  cause  with  like  effect  as  if  the  pleadings  had 
been  originally  in  the  amended  form."^ 

"Where,  in  any  suit  brought  in  or  removed  from  any  State 
court  to  any  district  of  the  United  States,  the  jurisdiction  of  the 
district  court  is  based  upon  the  diverse  citizenship  of  the  parties, 
and  such  diverse  citizenship  in  fact  existed  at  the  time  the  suit 
was  brought  or  removed,  though  defectively  alleged,  either  party 
may  amend  at  any  stage  of  the  proceedings  and  in  the  appellate 
court  upon  such  terms  as  the  court  may  impose,  so  as  to  show  on 
the  record  such  diverse  citizenship  and  jurisdiction,  and  there- 
upon such  suit  shall  be  proceeded  with  the  same  as  though  the 
diverse  citizenship  had  been  fully  and  correctly  pleaded  at  the 
inception  of  the  suit,  or,  if  it  be  a  removed  ease,  in  the  petition 
for  removal."*  Tt  has  been  held  that  this  does  not  authorize 
an  appellate  court  to  maintain  the  jurisdiction  by  the  dismissal 
of  an  unnecessary  party.* 

After  naturalization  the  court  has  no  power  to  amend  its 
record  by  altering  the  name  by  which  the  new  citizen  was  therein 
described,^  nor  by  changing  the  sovereignty  which  he  abjured.' 

Northern   By.   Co.   v.   TTorron,   C.   C.  4.38    St.    at    L.    956,    Comp.    St. 

A.,  136  Fed.  49;  U.  S.  R.  S.,  S§  636,  §  1251c. 

948,   914,  Comp.   St.,   S§  5595,   5596.  5  Thomas   v.   Anderson,   C.   C.   A., 

2  Harlan,   J.,  in   Hardin   v.  Boyd,  8th  Ct.  223  Fed.  41,  43, 

113  U.  S.  756,  761,  28  L.  ed.  1141,  e  Be  Holland,  237  Fed.  735. 

1142.     See  Nellis  v.   Pennock   Mfg.  7  U.  S.  v.  Vogel,  C.  C.  A.,  262  Fed. 

Co.,  38  Fed.  379.  262,  overruling  several  cases  therein 

8  38    St.    at    L.    956,    Comp.    St.  cited;  ^(pm,  §  151b. 

§  1251a.     See  National  Surety  v.  U.  8  Andas  v.  Highland  Land  &  Bldg< 

S.,  C.  C.  A.,  228  Fed.  577.  Co.,  C.  C.  A.,  205  Fed.  862. 


1162 


AMENDMENTS 


[§  207 


It  has  been  held  that  the  prayer  for  relief  in  a  petition  is  no  part 
of  the  notice  required  to  make  due  process  of  law  and  that  an 
amendment  of  the  prayer  after  defendant  has  made  default  in 
appearance  does  not  invalidate  the  judgment  thereupon.^ 
States,^  charitiesji**  infants,!^  idiots,  and  lunatics  are  allowed  to 
amend  in  cases  where  courts  might  hesitate  to  grant  the  privilege 
to  others.  Amendments  are  rarely  allowed  to  the  plaintiffs  in 
penal  actions  and  actions  to  enforce  forfeitures.^^ 

§  207.  Amendments  of  writs  and  process.  A  writ  may  be 
amended  by  adding  thereto :  a  date ;  ^  or,  in  a  removal  case, 
where  the  State  statute  so  permits,  a  seal ;  ^  or,  if  it  is  under 
seal,  by  adding  the  proper  teste  ^  or  signature*  to  the  same; 
or  the  return  day,  when  served  after  the  original  return  day 
had  passed ;  ^  or  by  directing  it  to  a  defendant  in  his  official 
instead  of  his  individual  capacity ;  ^  or  when  indorsed  by  an  at- 
torney not  admitted  to  practice  in  the  Federal  court,  but  qualified 
for  such  admission,  by  substituting  another  attorney,'  or  by 
admitting  the  original  attorney  to  practice  as  of  a  date  prior  to 
the  issue  of  the  writ ;  ^  but  when  issued  in  the  Federal  court 
without  a  seal  or  signature,  the  defect  cannot  be  cured  by  amend- 
ment.^ Petitions  and  bonds  on  removal  are  process  within  the 
statute  and  may  be  amended  in  a  proper  case.^"  It  has  been 
held  that  an  omission  in  the  papers  upon  which  an  attachment 
has  been  granted  may  be  supplied  by  amendment  in  a  case 
where  the  State  practice  does  not  permit  such  a  cure." 


9  Rhode  Island  v.  Massachusetts, 
13  Pet.  23,  10  L.  ed.  41. 

10  President  of  St.  Mary  M.  Col- 
lege V.  Sibthorp,  1  Russ.  154. 

11  Serle  v.  St.  Eloy,  2  P.  Wms. 
386;  Pritchard  v.  Quincdiant,  Amb. 
147;  Story's  Eq.  PL,  §§59,  892. 

12  XT.  S.  V.  Batchelder,  9  Int.  Eev. 
Rec.  98,  Fed.  Cas.  No.  14,451. 

§  207.  1  Gilbert  v.  South  Caro- 
lina I.  &  W.  I.  Exposition  Co.,  113 
Fed.  523. 

2  Wolf  V.  Cook,  40  Fed.  432. 

3U.  S.  V.  Turner,  50  Fed.  734. 

4  Bryan  v.  Ker,  222  U.  S.  107,  56 
L.  ed.  114. 

eSpeare  v.  Stone,  C.  C.  A.,  193 
Fed.  375. 


6  Hastings  v.  Herold,  184  Fed. 
759. 

7Jewett  V.   Garrett,  47  Fed.  625. 

8  Ibid. 

9Dwight  V.  Merritt,  4  Fed,  614; 
Peaslee  v.  Haberstro,  15  Blatehf. 
472.  Contra,  Chamberlain  v.  Men- 
sing,  47  Fed.  435. 

10  Kinney  v.  Columbia  Sav.  &  L. 
Ass'n,  191  U.  S.  78,  48  L.  ed.  103. 
See  infra,  §§  546,  547. 

11  Bowden  v.  Burnham,  59  Fed. 
752,  754;  Erstein  v.  Rothschild,  22 
Fed.  61,  64;  Booth  v.  Denike,  65 
Fed.  43;  infra,  Section  on  Attach- 
ment. 


§  20yj  WJiKN     HILLS    L\    Kl^LITV    (JAN    BE    AMENDED  llO^i 

§  208.  Amendment  of  pleadings  at  common  law.  11  has  been 
held  that  the  time  and  manner  of  the  amendment  of  pleadings 
at  common  law  is  determined  by  the  practice  of  the  State  where 
the  conrt  is  held ;  ^  bnt,  in  matters  of  form,  they  may  be  amended 
in  ea.ses  where  the  State  statute  gives  no  such  permission.^  The 
court  has  power  ui)on  the  trial  to  increase  the  amount  of  dam- 
ages demanded  in  the  complaint.^  Where  the  State  practice 
is  silent,  amendments  at  common  law  will  usually  be  allowed 
in  cases  in  which  they  would  be  allowed  in  equity  and  they 
have  the  same  effect. 

§209.  When  bills  in  equity  can  be  amended.  The  equity 
rules  regulate  the  amendments  of  bills  as  follows:  "The  plain- 
tiff ma}',  as  of  course,  amend  his  bill  before  the  defendant  has 
responded  thereto,  but  if  such  amendment  be  filed  after  any 
copy  has  issued  from  the  clerk's  office,  the  plaintiff  at  his  own 
cost  shall  furnish  to  the  solicitor  of  record  of  each  opposing 
party  a  copy  of  the  bill  as  amended,  unless  otherwise  ordered 
by  the  court  or  judge.^  After  pleading  filed  by  any  defendant, 
plaintiff  may  amend  only  by  consent  of  the  defendant  or  leave 
of  the  court  or  judge."  "The  answer  may  be  amended,  by 
leave  of  the  court  or  judge,  upon  reasonable  notice,  so  as  to 
put  any  averment  in  issue,  when  justice  requires  it."^  "The 
court  may,  at  any  time,  in  furtherance  of  justice,  upon  such 
terms  as  may  be  just,  permit  any  process,  proceeding,  pleading 
or  record  to  be  amended,  or  material  supplemental  matter  to  be 
set  forth  in  an  amended  or  supplemental  pleading.  The  court, 
at  every  stage  of  the  proceeding,  must  disregard  any  error  or 
defect  in  the  proceeding  which  does  not  affect  the  substantial 
rights  of  the  parties."^ 

§  208.     1  Eosenbaeh    v.    Dreyfuss,  3  Manitowoc       Malting       Co.       v. 

1  Fed.  891.     See  U.  S.  R.  S.,  §914.  Fuechtwanger,  169  Fed.  983. 

Con-tra  as   to   amendments  upon  the  S  209.     1  Eq.    Rule   28.     See   Gub- 

trial,     Manitowoc     Malting     Co.     v.  Itins    v.    Laughtenschlager,    73    Fed. 
Fuechtwanger,    169    Fed.    983.      See  '     615;   Beav.ers  v.  G.  A.  Richardson  & 

IT.  S.  R.  S.,  §9.54;  Erstein  v.  Roths-  Co.,    118   Fed.   320;    National   Bank 

child,  22  Fed.  61.  v.    Carpenter,    101    U.    S.    ;-)67,   568, 

2U.   S.   R.    S.,    §954;    Manitowoc  25  L.  ed.  815,  816. 

Malting    Co.    v.    Fuechtwanger,    169  2  Eq.   Rule   30. 

Fed.  983.  3  Eq.   Rule   19. 


1164 


AMENDMENTS 


[§209 


A  bill  may  be  amended  although  the  new  matter  was  known 
to  the  complainant  when  the  bill  was  filed.* 

Under  the  former  practice,  where  objections  to  the  jurisdiction 
had  been  sustained  without  any  general  appearance,  or  any 
pleading  by  the  defendant,  the  bill  might  always  be  amended.^ 
For  the  purposes  of  the  rule  as  to  amendments,  an  answer 
which  had  been  held  or  admitted  to  be  insufficient,  was  con- 
sidered as  no  answer,^  In  New  York,  it  was  held  that,  after 
an  insufficient  answer,  the  complainant  could  not  amend  by 
leaving  out  the  defendant's  name,  thus  discontinuing  the  suit 
withput  costs.'  An  amendment  of  a  bill  without  payment  of 
costs  or  service  of  a  copy  on  the  defendant  might  be  with- 
drawn and  did  not  then  extend  the  defendant's  time  to  plead. ^ 

Under  the  old  chancery  practice,  it  was  not  usual  to  give  leave 
to  amend  when  a  general  demurrer  was  sustained,  but  in  the 
discretion  of  the  court  that  might  be  done.^  Under  the  rules 
of  1842,  if  upon  a  hearing  any  demurrer  or  plea  was  allowed, 
the  court  might,  in  its  discretion,  upon  motion  of  the  plain- 
tiff, allow  him  to  amend  his  bill  upon  such  terms  as  it  deemed 
reasonable.^®  If  the  defect  in  the  bill  was  clearly  one  that  went 
to  the  whole  equity  of  the  plaintiff's  case,  leave  to  amend 
would  not  be  granted. ^^  Leave  to  amend  might  also  be  refused 
when  the  case  for  the  defendant  was  a  hard  one  and  he  was 
free  from  wrongdoing  while  the  plaintiff  had  had  an  oppor- 
tunity to  plead  the  new  matter  when  his  bill  was  first  drawn.^^ 
When  a  demurrer  had  been  sustained,  an  amendment  which 
did  not  cure  the  defect  would  not  be  allowed.^^ 

After  a  case  has  been  set  down  for  a  hearing  upon  the  facts, 


iWhitaker  v.  Whitaker  Iron  Co., 
238  Fed.  980. 

6  Insurance  Co.  of  N.  A.  v.  Svend- 
sen,  74  Fed.  346. 

6Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
473.  See  Chase  v.  Dunham,  1  Paige 
(N.  Y.),  572. 

7  Chase  v.  Dunham,  1  Paige  (N. 
Y.),  572. 

8  Sheffield  F.  Co.  v.  Witherow,  149 
U.  S.  574,  576,  37  L.  ed.  853,  855. 

9  Wellesley  v.  Wellesley,  4  Myl. 
&  Cr.  554,  558. 


10  Eq.  Rule  35,  of  1842. 

ULangdell's  Eq.  PI.,  §96;  Tyler 
V.  Bell,  2  Myl.  &  Cr.  89;  Lowe  v, 
Farrie,  2  Madd.  101;  Walker  v. 
Powers,  104  U.  S.  245,  26  L.  ed. 
729 ;  McKemy  v.  Supreme  Lodge  A. 
O.  U.  W.,  C.  C.  A.,  180  Fed.  961. 

12  Dowell  V.  Applegate,  8  Fed. 
698;   s.  c,  7  Saw.  232. 

13  MeKeniy  v.  Supreme  Lodge  A. 
O.  U.  W.,  C.  C.  A.,  180  Fed.  961, 
965. 


§209] 


WHEN    BILLS    L\    EQUITY    CAN    BE    AMENDED 


1165 


and  especially  after  such  a  hearing,  an  amendment  which  sub- 
stantially changes  the  case  made  by  the  bill  will  rarely  be 
granted, ^^  but  the  courts  of  first  instance  and  of  review  ^^  usually 
grant  applications  for  leave  to  amend  so  as  to  correct  clerical 
errors  ^^  and  to  make  the  pleadings  conform  to  evidence  that 
has  been  taken  without  objection, ^''^  and  they  often  permit  the 
necessary  jurisdiction  averments  then  to  be  added. ^^  No  vari- 
ance between  the  pleadings  and  the  proofs  is  material  unless 
of  a  character  to  mislead  the  opposite  party.^^ 

An  amendment  may  be  allowed  by  the  court  at  any  time  even 
when  a  motion  to  dismiss  a  bill  is  pending  ^^  or  even  after  a 
final  decree  2^  or  a  judgment  at  law  and  after  a  decision  upon  a 
Avrit  of  error  when  a  new  trial  has  been  ordered ;  ^^  or  upon  an 
appeal  when  leave  is  granted  to  both  sides  to  adduce  further 
evidence. ^^    In  the  latter  case  ordinarily  leave  from  the  appellate 


14  The  Tremolo  Patent,  23  Wall. 
518,  527,  23  L.  ed.  97,  98;  Gubbins 
V.  Laughtenschlager,  75  Fed.  615; 
Bass,  E.  &  G.  V.  Feigenspau,  82  Fed. 
260 ;  Old  Dominion  Copper  Mining 
&  Smelting  Co.  v.  Lewisohn,  176 
Fed.  745;  Atchison,  T.  &  S.  F.  Ey. 
Co.  V.  Gilliland,  C.  C.  A.,  193  Fed. 
608;  Healey  Ice  Machine  Co.  v. 
Green,  184  Fed.  515. 

15  Crescent  Milling  Co.  v.  H.  N. 
Strait  Mfg.  Co.,  C.  C.  A.,  227  Fed. 
804. 

16  Mcllwood  Distilling  Co.  v.  Har- 
per, 167  Fed.  389,  an  error  in  the 
name  of  the  complainant. 

17  Old  Dominion  Copper  Mining 
&  Smelting  Co.  v.  Lewisohn,  176 
Fed.  745;  Pa.  Steel  Co.  v.  N.  Y. 
City  Ey.  Co.,  190  Fed.  602;  Con- 
fectioners' Mach.  &  Mfg.  Co.  v.  Ea- 
cine  Eng.  &  Mach.  Co.,  163  Fed. 
914;  Lusk  v.  Bush,  C.  C.  A.,  199 
Fed.  369;  Flint  &  P.  M.  E.  Co.  v. 
McPherson,  C.  C.  A.,  105  Fed.  210, 
44  C.  C.  A.,  449;  Freund  v.  S.  H, 
Greene  &  Sons  Corporation,  139 
Fed.  703;  Pa.  E.  Co.  v.  Cole,  214 
Fed.  948,  950;   Harris  v.  Egger,  C, 


C.  A.,  226  Fed.  389 ;  Davis  v.  Gates, 
235  Fed.  192;  Law  v.  Illinois  Cent. 
E.  Co.,  C.  C.  A.,  208  Fed.  869,  870. 
ISBaglin  v.  Title  Guaranty  & 
Surety  Co.,  166  Fed.  356;  McEldow- 
ney  v.  Card,  193  Fed.  475;  Atchi- 
son, T.  &  S.  F.  Ey.  Co.  v.  Gilliland, 
C.  C.  A.,  193  Fed.  608;  Crosby  v. 
Cuba  E.  Co.,   158  Fed.   144. 

19  Penn.  Co.  v.  Whitney,  C.  C.  A., 
169  Fed.  572,  578,  citing  Grayson 
V.  Lynch,  163  U.  S.  468,  16  Sup.  Ct. 
1064,  41  L.  ed.  230;  Baltimore  & 
P.  E.  E.  Co.  V.  Cumberland,  176  U. 
S.  232,  238,  20  Sup.  Ct.  380,  44  L. 
ed.  447;  Schiffen  v.  Anderson,  C.  C. 
A.,  146  Fed.  457,  459. 

20  Crown  Feature  Film  Co.  v.  Bet- 
tis  Amusement  Co.,  206  Fed.  362. 

21  The  Tremolo  Patent,  23  Wall. 
518,  23  L.  ed.  97;  McEldowney  v. 
Card,  193  Fed.  475;  Maddox  v. 
Thorn,  60  Fed.  217.  See  Brock  v. 
Fuller  Lumber  Co.,  C.  C.  A.,  153 
Fed.  272;  Fitchburg  E.  Co.  v.  Nich- 
ols, C.  C.  A.,  85  Fed.  869. 

22  Farmer  v.  Atlantic  Coast  Line 
E.  Co.,  205  Fed.  319. 

23Eio  Grande  Dam  &  Irr.  Co.  v. 


1166 


AMENDMENTS 


[§210 


court  to  apply  for  the  amendment  must  be  obtained ;  but  where 
a  decree  upon  the  pleading  has  been  reversed  and  the  cause 
remanded  for  further  proceedings,  the  complainant  may  be  al- 
lowed by  the  court  of  first  instance  to  amend  his  bill  without 
express  leave  of  the  court  of  review.^*  The  power  of  the  court 
of  first  instance  to  allow  an  amendment  pending  an  appeal,^^ 
or  writ  of  error,^^  is  extremely  doubtful. 

§210.  Form  of  amendment  of  a  bill.  "Wherever  leave  to 
amend  the  bill  is  granted,  it  is  more  proper  to  file  an  amended 
bill  than  to  interline  the  original  bill,  particularly  if  some  of 
the  defendants  had  before  answered  that  bill."^  "The  rule  is 
that  the  amended  bill  should  state  no  more  of  the  original  bill 
than  may  be  necessai-y  to  introduce,  and  to  make  intelligible,  the 
new  matter,  which  should  alone  constitute  the  chief  subject  of  the 
bill.  The  reasons  for  this  rule  are  obvious.  Not  only  is  the 
incorporating  of  the  old  bill  into  the  amended  bill  unnecessary, 
but  it  increases  the  costs,  and  exposes  the  defendants,  particu- 
larly those  who  have  answered  the  original  bill,  to  the  trouble 
of  searching  out  and  separating  the  old  from  the  new  matter,  at 
the  peril  of  having  their  answer  excepted  to  if  any  mistake 
should  happen,  and  all  the  matter  of  the  amended  bill  should 
not  be  answered. ' '  ^  Accordingly,  an  amended  bill  which  was 
obnoxious  to  this  rule  was  held  impertinent.^  It  is  the  better 
practice  for  the  solicitor  to  sign  the  amendment.* 


U.  S.,  21.5  U.  S.  266,  268,  54  L. 
ed.  190,  192;  Newcomb  v.  Burbank, 
C.  C.  A.,  181  Fed.  334. 

24  Rio  Grande  Dam  &  Irrigation 
Co.  V.  U.  S.,  215  U.  S.  266,  268,  54 
L.  ed.  190,  192,  where  the  mandate 
authorized  the  court  below  ' '  to 
grant  leave  to  both  sides  to  adduce 
further  evidence ;  ' '  Am.  Bell  Tel. 
Co.  V.  U.  S.,  68  Fed.  542,  570. 

25  Be  Sanford  Fork  &  Tool  Co., 
160  U.  S.  247,  40  L.  ed.  414;  Ber- 
liner Gramophone  Co.  v.  Seaman, 
C.  C.  A^  113  Fed.  750. 

26  St.  Louis  &  S.  F.  E.  Co.  v. 
Loughmiller,   19.'?   Fed.   689,   693. 

§210.  iPeircev.  West's  Ex'rs, 
3  Wash.  354,  355. 

2  Ibid.     In    Alabama,    where    the 


amendment  was  inconsistent  with 
the  allegations  in  the  original  bill, 
which  it  did  not  correct  or  with- 
draw, the  bill  as  amended  was  dis- 
missed upon  demurrer.  Friedman 
v.  Fennell,  94  Ala.  570,  10  S.  R. 
649.  For  a  case  where  a  paper  de- 
i-eribed  as  an  "amended  petition" 
was  treated  as  an  amendment  to  the 
]ietition  and  as  setting  forth  not  a 
substitute  to  the  original  cause  of 
action,  but  an  additional  or  alterna- 
tive claim,  see  Melton  v.  Pensacola 
Bank  &  Trust  Co.,  C.  C.  A.,  190 
fed.  126,  136. 

aPeirce  v.  West's  Ex'rs,  3  Wash. 
:}54,  355. 

iDauiell's  Ch.  Pr.  (5th  Am.  ed.) 
313. 


§  210a] 


EFFECT    OF    AMENDMENT 


1167 


Where  the  constnietioii  of  an  amendment  is  doubtful  it  will 
be  held  to  be  made  to  {jonfoiiii  to  the  order  under  which  it  was 
made  and  not  leave  the  amended  pleading  in  effect  unclianged.^ 

Allegations  in  a  remittitar  filed  after  judgment  cannot  be 
considered  as  amendments  to  a  pleading.^  A  stipulation  may  be 
treated  as  an  amendment.' 

The  action  of  the  court  in  submitting  a  case  to  a  jury  on  a 
certain  theory  inconsistent  with  the  plaintiff's  pleading  when  no 
exception  on  that  ground  was  made,  may  l)e  treated  as  an  amend- 
ment to  his  pleading,  although  no  formal  amendment  is  shown  in 
the  record.* 

§  210a.  Effect  of  amendment  in  general.  An  amendment 
speaks  as  of  the  date  of  the  original  bill ;  ^  and  an  amendment 
alleging  the  requisite  difference  of  citizenship  in  the  present 
tense  will  be  presumed  to  refer  to  the  date  of  the  original  bill 
and  will  sustain  the  jurisdiction. ^  Where  the  original  bill  stated 
that  the  infringements  charged  were  since  a  specified  date, 
it  was  held  that  the  general  allegations  in  an  amendment  as  to 
infringement  at  divers  times  since  the  issue  of  the  patents  did 
not  authorize  proof  thereof  prior  to  the  time  alleged  in  the  orig- 
inal pleading.3  "Where  an  amended  bill  recited  the  substance 
of  the  original  and  made  the  same  a  part  thereof,  it  was  held 
that  a  corporation  made  a  party  to  the  original  was  a  party  to 
the  amended  bill.^^ 

The  amendnu'ut  of  a  bill  was  usually  considered  as  an  admis- 
sion of  the  sufficiency  of  the  atiswer  as  regards  discovery ;  *  but 
an  amendment  which  mere].y  brought  in  a  new  defendant  did  not 
have  this  effect;^  and  the  court  might,  to  prevent  delay,  enter- 


5  Bogert  v.  Southern  Pac.  Co.,  21.3 
Fed.  218. 

6  Am.  Surety  Co.  v.  Sanberg:, 
225  Fed.  150.  See  Central  Life 
Securities  Co.  v.  Smith,  C.  C.  A., 
236  Fed.  170. 

7  Denny  v.  Pironi,  Ul  IT.  S.  121, 
35  L.  ed.  657. 

8  SdiiiTer  v.  Anderson,  C,  C.  A., 
146  Fed.  457,  459;  Erie  K.  Co.  v. 
Kennedy,  C.  C.  A.,  191  Fed.  332. 

§  210a.  1  Armstrong  Cork  Co.  v. 
Merchants'  Eefrigerating  Co.,  C.  C. 
A.,  184  Fed.  199. 


SBirdsall  v.  Perego,  5  Blatchf. 
251;  Baltimore  &  O.  R.  Co.  v.  Mc- 
Laughlin, C.  C.  A.,  73  Fed.  519; 
Campbell  v.  Johnson,  C.  C.  A.,  167 
Fed.  102.  Contra,  Sanbo  v.  Union 
I'ac.  Coal  Co.,  146  Fed.  80. 

3  Geneva  Mfg.  Co.  y.  Nat.  Furni- 
ture Co.,  188  Fed.  663. 

3a  Empire  C.  &  Tr.  Co.  v.  Empire 
C.  &  M.  Co.,  150  V.  S.  159.  37  L.  ed. 
1037. 

4  Smith's  Ch.  Pr.  (2d  Eng.  ed.) 
307. 

6  Taylor  v.  Wrench,  3  Ves.  715. 


1168  AMENDMENTS  [§  210b 

tain  a  motion  to  amend  a  bill  in  equity  at  the  time  that  excep- 
tions to  the  answer  are  filed,  and  then  require  the  defendant  to 
answer  the  amendments  and  the  exceptions  together.^  A  sug- 
gestion by  a  defendant,  that  an  amendment,  as  to  which  evidence 
had  been  offered,  should  be  allowed  nunc  pro  tunc,  does  not  estop 
him  from  filing  an  answer  pleading  the  statute  of  limitations  to 
the  same.' 

An  amendment  of  a  bill,  at  least  before  answer,  will  not,  it 
seems,  dissolve  an  injunction  previously  granted.^  It  is,  how- 
ever, the  usual  and  the  safer  practice  to  have  a  clause  inserted 
in  the  order  stating  that  the  amendment  may  be  made  without 
prejudice  to  the  injunction.*  Unless  otherwise  provided  in  the 
order,  it  seems  that  an  amendment  of  a  bill  will  discharge  all 
contempt  proceedings  previously  instituted.^®  But  it  was  held 
that  an  amendment  of  a  bill  may  be  allowed  upon  the  hearing 
of  an  application  for  a  preliminary  injunction,  whereupon  it 
takes  effect  at  once,  and  the  hearing  may  proceed  without  an  ad- 
journment until  after  the  issue  of  the  new  subpoena  which  the 
amendment  necessitates.^^  It  has  been  said:  that,  when  the 
defense  of  laches,  appearing  on  the  pleadings,  is  raised  upon 
the  trial,  the  complainants  may  be  permitted  to  amend  and  the 
court  will  then  rule  upon  the  defense  in  accordance  with  the 
pleadings  as  amended. ^^ 

§210b.  Time  from  which  amendment  takes  effect.  An 
amendment  to  a  petition  which  sets  up  no  new  cause  of  action 
and  makes  no  new  demand,  but  simply  varies  or  expands  the 
allegations  in  support  of  the  cause  of  action,  previously  pleaded, 
relates  back  to  the  beginning  of  the  action ;  and  when  the  suit 
was  begun  within  the  statutory  period  of  limitation,  it  is  not 
barred  by  the  expiration  of  such  time  previous  to  the  amend- 

6Kittredge    v.    Claremont    Bank,  10  Smith 's  Ch.  Pr.   (2d  Eng.  ed.) 

3  Story,  590.  305;   Gray  v.   Campbell    1  E.  &  M. 

TU.  S.  V.  Dalcour,  203  U.  S.  408,  323;    Symonds  v.   Duchess   of   Cum- 

51  L.  ed.  248.  berland,  2  Cox,  411. 

8  Read  v.  Consequa    4  Wash.  174,  H  American    S.    W.    Co.    v.    Wire 
180;  Smith's  Ch.  Pr.  (2d  Eng.  ed.),  D.  &  D.  W.  Unions,  90  Fed.  598. 
306;    Darnell's    Ch.    Pr.    (5th    Am.  12  Alexander  v.  Fidelity  Trust  Co., 
ed.)  424,  425.  214  Fed.  495. 

9  Read  v.  Consequa,  4  Wash. 
174;  Daniell's  Ch.  Pr.  (5th  Am. 
ed.)   424,  425. 


§2101)  I     TIME   FROM    WHICH    AMENDMENT    TAKES   EFFECT  HG!) 

meiit ;  ^  but  an  anioitlnieut  vvliich  introduces  a  new  or  different 
cause  ol"  action  and  makes  a  new  or  different  demand,  is  the 
equivalent  of  a  fresli  suit  upon  a  new  cause  of  action,  and  the 
statute  continues  to  run  until  the  amendment  is  made.^  The 
former  rule  applies  although  the  two  causes  of  action  arise  out 
of  the  same  transaction,  when,  by  the  practice  of  the  State, 
a  plaintiff  is  only  required,  in  his  pleading,  to  state  the  facts 
which  constitute  his  cause  of  action.^  It  has  been  said  that  an 
amendment  changes  the  cause  of  action  only  where  the  pleader 
deserts  in  point  of  fact  the  ground  which  he  had  first  taken,  or 
puts  the  same  facts  on  a  new  ground  in  point  of  law.* 

An  amendment  relates  back  to  the  commencement  of  the  action 
as  regards  the  Statute  of  Limitations  when  it  makes :  a  change  in 
the  date  of  a  contract  upon  which  the  suit  is  brought,^  or  a 
slight  modification  in  the  compensation  thereunder,^  or  an  en- 
larged statement  of  the  terms  of  the  contract  which  is  not  incon- 
sistent with  the  original  allegations.'  In  two  actions  upon 
awards  made  by  the  Interstate  Commerce  Commission  a  transfer 
of  the  awards  from  one  suit  to  another  was  held  not  to  make 
two  new  causes  of  action.^  So,  when  the  complaint  stated  facts, 
fi'om  which  the  law  raised  the  legal  presumption  of  a  promise 
to  pay  the  balance  of  an  account  stated  and  demanded  judgment 
for  that  amount,  it  and  this  amendment,  added  an  averment  of 
a  promise  to  pay  the  balance.* 

So  when  the  original  declaration  referred  to  a  State  law  and 
the  amendment  to  the  Federal  Employers'  Liability  Act,  the 
allegations  of  fact,  except  as  to  the  capacity  in  which  the  plaintiff 
sued,  being  in  both  pleadings  the  same.^** 

§  210b.  1  Illinois  Surety  Co.  v.  5  Standard  Bitulithic  Co.  v.  Cur- 
Peeler,  240  U.  S.  214;  Seaboard  ran,  C.  C.  A.,  256  Fed.  68. 
Airline  Ry.  v.  Renn,  241  U.  S.  290,  6  Galesbury  &  K.  El.  Ry.  Co.  v. 
293;  Tatillo  v.  Allen-West  Commis-  Hart,  C.  C.  A.,  221  Fed.  7. 
sion  Co.,  131  Fed.  680;  Bison  State  7  MacGlashan  v.  Laiigston,  244 
Bank  v.  Billington,  C.  C.  A.,  228  Fed.  831.  But  see  Maryland  Cas- 
Fed.  116.  ualty  Co.  v.  Price,  C.  C.  A.,  231  Fed. 

2  U.  S.  V.  Daleour,  203  U.  S.  408,  397. 

423,  51  L.  ed.  248,  251.  8  Penn.  R.  Co.  v.  Minds,  C.  C.  A., 

3Patillo  V.  Allen-West  C.  Co.,  131  244  Fed.  53. 

Fed.    680;    Seaboard   Airline   Ry.   v.  9  Patillo  v.  Allen-West  C.  Co.,  131 

Renn,  241  U.  S.  290,  293.  Fed.  680. 

4  Galesbury   &   K.   El.   Ry.   Co.   v.  10  Mo.   K.   &  T.   Ry.  Co.  v.  Wulf, 

Hart,  221   Fed.  7.  260  U.  S.  570;  Seaboard  Airline  Ry. 


1170 


AMENDMENTS 


[§210b 


No  new  cause  of  action  was  stated  in  an  action  for  wrongful 
death,  by  an  amendment  enlarging  the  statement  of  the  dam- 
ages.^^  Nor  bj'  an  additional  allegation  of  a  new  act  or  omission 
constituting  negligence.^^  There  seems  to  be  no  reason  why 
this  rule  should  not  be  applied  to  any  action  for  damages 
where  negligence  is  charged.^^  Nor  to  an  action  for  wrong- 
ful death  where  the  original  complaint  was  founded  upon  the 
statute  of  a  ditferent  state  from  that  which  was  inserted  by 
the  amendment.^*  But  it  has  been  held:  that  a  new  cause  of 
action  is  presented  by  changing  the  ground  of  recovery  from 
a  right  at  common  law  to  one  under  a  Kansas  statute,^*  or 
from  a  right  under  a  treaty  to  a  right  under  a  statute,  which 
did  away  with  the  defense  that  the  negligence  of  which  com- 
plaint was  made  was  that  of  a  fellow-servant ;  ^^  and  that  if 
the  statutory  period  expired  before  such  an  amendment,  the 
claim  was  barred.^'''  Where  a  bill  to  rescind  a  sale  for  fraud  and 
to  recover  incidental  damages  was  transferred  from  the  equity  to 
the  law  side  of  the  court  because  the  plaintiflP  had  made  it  impos- 
sible to  restore  the  status  quo,  it  was  held  that  an  amended  peti- 
tion claiming  damages  for  the  fraud  did  not  change  the  cause  of 
action."  Where  the  plaintiff  sued  to  collect  a  claim  for  material, 
an  amendment  setting  up  a  further  claim  for  material  furnished 
by  another  and  assigned  to  him  was  held  to  state  a  new  cause  of 
action  and  not  to  relate  back  to  the  commencement  of  the  suit, 


V.  Koenneeke,  239  U.  S.  352;  Sea- 
board Airline  Ey.  v.  Eenn,  241  U. 
S.  290;  Smith  v.  Atlantic  Coast 
Line  E.  Co.,  C.  C.  A.,  210  Fed.  761 ; 
O'Dell  V.  Southern  Ey.  Co.,  248 
Fed.  343,  345.  See  Lueehetti  v. 
Phila.  &  E.  Ey.  Co.,  233  Fed.  137. 

11  Truckee  Eiver  Gen.  El.  Co.  v. 
Benner,  C.  C.  A.,  211  Fed.  79,  p. 
726A. 

12  Illinois  Cent.  E.  Co.  v.  Norris, 
C.  C.  A.,  245  Fed.  926;  M'Clintic- 
Marshal  Const.  Co.  v.  Forgy,  C.  C. 
A.,  246  Fed.  193,  199;  Arbunich  v. 
United  Eailroads  of  San  Francisco 
(Cal.  D.  C.  App.,  Oct.  1915),  152 
Pac.  51. 

13  Owl    Creek    Coal   Co.   v.    Goleb, 


C.  C.  A.,  210  Fed.  209;  Coeur 
d  'Alene  Lumber  Co.  v.  Thompson, 
C.  C.  A.,  215  Fed.  8;  Western  Coal 
&  Min.  Co.  V.  McCallum,  C.  C.  A., 
237  Fed.  1003. 

14  Williams  v.  William  B.  Scaife 
&  Sons  Co.,  227  Fed.  922. 

15  Union  Pac.  Ey.  Co.  v.  Wyler, 
158  U.  S.  285,  39  L.  ed.  983;  U.  S. 
V.  Dalcour,  203  U.  S.  408,  51  L.  ed. 
248. 

16  Union  Pac.  Ey.  Co.  v.  Wyler, 
158  U.  S.  285,  298,  39  L.  ed.  983. 
991;  U.  S.  V.  Dalcour,  203  U.  S. 
408,  423,  51  L.  ed.  248,  251. 

17  Ibid. 

18  Friederichsen  v.  Eenard,  247  U. 
S.  207,  reversing  231  Fed.  882. 


v;2]l]  AMEXDMKNTS    TO    I'LAIXTIFFS '    PLEADINGS  1171 

although  the  amount  prayed  for  in  the  original  petition  was  suffi- 
cient to  cover  both  claims.^®  The  same  ruling  was  made  when 
I)laintiff  sued  in  replevin  to  recover  prints  which  infringed  his 
copyright  and  subsequently  amended  to  aver  an  additional  claim 
to  recover  the  statutory  penalty  for  each  copy  seized.^" 

In  an  action  to  recover  unpaid  duties  founded  upon  defend- 
ant's fraud  in  suppressing  documents  which  would  have  shown 
undervaluation  the  court  disallowed  an  amendment,  after  the 
statute  of  limitations  had  run,  resting  the  action  upon  the  de- 
fendant's knowledge  of  the  undervaluation.^^  And  in  an  action 
to  recover  penalties  for  importation  of  contract  laborers,  disal- 
lowed an  amendment  charging  new  and  different  statements  of 
the  offense.^^ 

Where  argument  of  a  demurrer  was  postponed  without  the 
defendant's  objection  until  after  the  period  of  limitation  had 
expired,  leave  to  amend  w^as  granted  the  plaintiff  without  regard 
to  the  fact  that  new  causes  of  action  were  thereby  inserted.^^ 

§211.  What  amendments  may  be  made  to  bills  in  equity  and 
declarations  at  common  law.  By  the  former  practice  an 
amendment  in  a  bill  in  equity  was  required  and  usually  allowed 
whenever  the  plaintiff  wished  to  avoid  and  not  merely  deny  a 
defense  in  the  answer  which  had  not  been  anticipated  in  the 
original  bill.^  An  amendment  should  rarely  if  ever  be  permitted 
where  it  would  materially  change  the  very  substance  of  the  case 
made  by  the  bill,  and  to  which  the  parties  have  directed  their 
proofs.^     It  is  unsettled  whether  a  bill  for   discovery  can  be 

19Salyers  v.  U.  S.,  C.  C.  A.,  257  ment    or    decree,    to    establish    any 

Fed.  255.  fart   put   in   issue   by   the   pleading, 

20  Hills  &  Co.  V.  Hoover,  C.  C.  A.,  Southern  Pac.  R.  Co.  v.  F.  S.,  168 
211    Fed.    241.  U.  S.  1,  42  L.  ed.  355. 

21  U.  S.  V.  Salen,  244  Fed.  196.  2  Harlan,   J.,   in   Hardin  v.   Boyd 

22  U.  S.  V.  Dwight  Mfg.  Co.,  210  113  U.  S.  756,  761,  28  L.  ed.  1141. 
Fed.  79.  1142.      Thus,   where   a    bill   for   the 

23  U.  S.  V.  Dwight  Mfg.  Co.,  210  enforeement  of  a  judgment  lien 
Fed.  85.  upon     certain     property     was     filed 

§211.  1  Wilson  V.  Stolley,  4  Mo-  against  certain  specified  defendants. 
Lean,  275;  Lant  v.  Manley,  C.  C.  nn  amendnient  was  refused  after  a 
A.,  75  Fed.  627,  634;  Piatt  v.  Vat-  hearing,  when  it  was  sought  to  seek 
tier,  9  Peters,  405,  9  L.  ed.  173.  discovery  and  relief  against  all  pur 
See  supra,  §§136,  195.  This  rule  chasers  of  lioth  the  property  re- 
did not  require  that  the  amendment  ferred  to  in  the  original  bill  and 
set  forth  evidence,  such   as  a  judg-  other     property     of     the     judgment 


1172 


AMENDMENTS 


[§211 


debtor.     Sneed  v.  McCoull,  12  How. 
407,  422,   13   L.  ed.   1043,  1049.     A 
bill  to  restrain  the  infringement  of 
a  patent   cannot  be   amended  so   as 
to  allege  that  the  title  to  the  patent 
is    in    a    different   person    from    the 
one   who   in   the   original   bill   is   al- 
leged    to     hold     it.       Goodyear     v. 
Bourn,  3  Blatchf.  266.    See  Eylands 
V.   La   Touehc,    2    Bligh,   586.      But 
see    Owatonna    Mfg.    Co.    v.    F.    B. 
Fargo   &   Co.,   94   Fed.    519;    infni, 
§  231.      Such    a    bill    may,    however, 
be  amended  so  as  to  set  up  a  reis- 
sue   of    the    original    patent,    which 
occurred  before  the  original  bill  was 
filed,  but  was  not  mentioned  herein. 
The  Tremolo  Patent,  23  Wall,  518, 
23   L.   ed.   97;    Keay  v.  Kaynor,   19 
Fed.   308;    Eeay   v.   Berlin   &   J.   E. 
Co.,    30    Fed.    448.      But    see    Jones 
V.  Barker,  11  Fed.  597.     And  so  as 
to   include   claims   for   damages   and 
profits   due   previous   owners  of   the 
patent,   who   have  assigned  them   to 
the   complainant.      N.   Y.    Grape    S. 
Co.  v.  Buffalo  Grape  S.  Co.,  20  Fed. 
505.      The     allegation    that    certain 
machines  alleged  to  be  used  in  vio- 
lation   of    a    patent    were    infringe- 
ments    when    made     may    also     be 
added  by  amendment.     Eeay  v.  Eay- 
iior,  19  Fed.  308.     It  was  held  that 
a  bill  for  a  new  trial  of  an  action 
for    the    price    of    stock    alleged    to 
have  been  sold  the  defendant  could 
nut  be  changed  by  amendment  so  as 
to    charge    that   the   defendant   held 
the  stock  in  trust  for  the  complain- 
ant.    Oglesby    v.    Attrill,    14    Fed. 
214.      A   bill   filed   by   several   cred- 
itors praying  the  sale  of  their  debt- 
or's  land  in  one  State,  and  the  sat- 
isfaction of  their  claims  out  of  the 
proceeds    of    such    sale,    cannot    be 
changed    by    amendment    so    as    to 


pray   relief   to    one   against   another 
of  the  plaintiffs,   in   respect   to   the 
receipt  by  the  latter  of  the  proceeds 
of    the    sale    of    other    land    of    the 
same     debtor     situated    in     another 
State    and    sold    under    a    decree   in 
another      suit      in      another      court. 
Smith   V.   Woolfolk,   115   U.   S.   143, 
148,  29  L.  ed.  357,  359.     A  bill  by 
the  Land  Company  of  New  Mexico 
to  enforce  an  executory  contract  by 
the  defendant  Smoot  for  the  sale  of 
an    interest    in    land    of    which    the 
defendant  Elkins  had  the  legal  title, 
and     which     it     was     alleged     that 
Smoot   was   about   to   assign   to   the 
defendant  Butler  with  Elkins 's  con- 
nivance,   was    held    not    amendable 
'  *  by    omitting    all    the    parties    but 
Elkins,  and  proceeding  against  him 
upon    the    theory    that    complainant 
had  acquired  Smoot 's  interest  by  an 
absolute     and    unconditional     trans- 
fer."    Land  Co.  v.  Elkins,  120  Fed. 
545.     It  was  held  that  a  creditor's 
bill,  filed  to  obtain  the  appointment 
of   a  receiver  of   the  property  of  a 
city,  and  the  application  by  him  of 
its   assets  to   the  satisfaction   of  its 
debts,   could   not   be   amended  so  as 
to  seek  relief  against  a  receiver  and 
back-tax    collector,    appointed   by    a 
subsequent    statute   of   the   State   to 
collect  the  city's  assets.    Meriwether 
V.   Garrett,   102   U.   S.  472,   502,   26 
L.  ed.  197,  200.     But  see  Eiehmond 
V.   Irons,    121    U.    S.    27,   30   L.    ed. 
864.     A  bill  to  set  aside  a  sheriff's 
sale  may  be  amended  so  as  to  add  a 
tender    of    the    purchase    price    and 
a  prayer  for  a  redemption  of  prop- 
erty.     Graffam   v.    Burgess,    117   U. 
S.  180,  29  L.  ed.  839.     A  bill  to  set 
pside  a  contract  for  the  sale  of  land 
as  obtained  by  fraud  may  be  amend- 
ed by  the  addition  of  an  alternative 


§211] 


AMENDMENTS    TU    I'LAINTIFFS      PLEADINGS 


1173 


amended  so  as  also  to  pray  relief.^  It  was  held  that  a  bill  filed 
against  persons  in  their  individual  capacity  cannot  be  amended 
so  as  to  sue  them  as  officers  of  a  corporation,*  but  that  when  two 
corporations  of  the  same  name  were  organized  in  different  States, 
a  mistake  in  the  designation  of  the  place  of  incorporation  of  the 
complainant  ^  or  defendant  ^  might  be  corrected  by  amendment, 


prayer  for  the  specific  pcrforniauce 
of  the  contract.  Hardin  v.  Boyd, 
113  U.  8.  756,  28  L.  e<i.  lUl,  dis- 
tinguishing Shields  v.  Barrow,  17 
How.  130,  15  L.  ed.  158.  A  hill  to 
enjoin  a  railroad  conipany  from 
transporting  coal  owr.ed  by  a  cor- 
poration, in  which  it  is  a  stock- 
holder, may  be  amended  so  as  to 
set  forth  that  the  latter  corporation 
is  not  a  l)ona  fide  mining  company, 
but  merely  an  adjunct  or  instru- 
mentality of  the  defendant,  which 
is  in  effect  the  legal  owner  of  the 
coal  which  it  transports,  and  that 
by  the  use  of  its  power  as  a  stock- 
holder the  railroad  company  has 
practically  obliterated  all  distinc- 
tion between  the  two  corporations. 
U.  S.  V.  Lehigh  Valley  R.  E.  Co., 
220  U.  S.  257,  55  L.  ed.  458.  A  bill 
to  remove  a  cloud  upon  the  title  to 
land  may  be  amended  so  as  to  seek 
the  enforcement  of  trusts  relating 
to  the  same  property.  Partee  v. 
Thomas,  11  Fed.  709.  See  also 
Neale  v.  Neales,  9  Wall.  1,  19  L. 
ed.  590;  Battle  v.  Mutual  Life  Ins. 
Co.,  10  Blatchf.  417;  Burgess  v. 
Graffam,  10  Fed.  216.  But  see  Sav- 
age V.  Worsham,  104  Fed.  80.  It 
has  been  said  that  where  the  bill 
originally  sets  out  one  agreement 
which  it  seeks  to  enforce,  and  the 
answer  admits  the  execution  of  an- 
other agreement  of  a  similar  char- 
acter, but  with  provisions  different 
from  those  alleged  in  the  biU,  the 
plaintiff  may  amend  abandoning  the 
agreement  first  pleaded  by  him,  and 
Fed.  Prac.  Vol.  II— 4 


obtain  the  enforcement  of  that  ad- 
mitted by  the  defendant;  but  that 
he  cannot,  while  still  praying  the 
enforcement  of  the  agreement  as  set 
out  by  him,  amend  so  as  to  seek, 
in  case  he  fail  in  proving  that,  an 
enforcement  of  the  one  admitted  in 
the  answer.  Lindsay  v.  Lynch,  2 
Sch.  &  Lef.  1,  9. 

3  See  Horsburg  v.  Baker,  1  Pet. 
232,  7  L.  ed.  125;  Butterworth  v. 
Bailey,  15  Ves.  358;  Hildyard  v. 
C'ressy,  3  Atk.  303;  Crow  v.  Tyrell, 
2  Madd.  397;  Jackson  v.  Strong,  1 
McClel.  245;  Lousada  v.  Templer, 
2  Russ.  565;  Daniell's  Ch.  Pr.  (2d. 
Am.  ed.)  263-465. 

4  Tyler  v.  Galloway,  13  Fed.  477. 
But  see  Womersley  v.  Merritt,  L. 
R.  4  Eq.  695;  Richmond  v.  Irons, 
121  U.  S.  27;  30  L.  ed.  864;  Pend- 
ery  v.  Carlcton,  87  Fed.  41. 

5  Confectioners'  Mach.  &  Mfg. 
Co.  V.  Racine  Eng.  &  Mach.  Co., 
163   Fed.   914. 

6  Bainum  v.  Am.  Bridge  Co.  of 
X.  Y.,  141  Fed.  179,  where  one 
company  was  designated  in  its  cor- 
jiorate  name  as  "of  New  York" 
and  the  other  as  "of  New  Jersey;  " 
Hernan  v.  Am.  Bridge  Co.,  C.  G. 
A.,  167  Fed.  930;  Clemmens  v. 
Washington  Park  Steamboat  Co., 
171  Fed.  168.  In  Am.  Surety  Co. 
v.  Maryland  Casualty  Co.  (K.m 
sas),  155  Pac.  59,  the  New  Century 
Zinc  &  Min.  Co.  of  Delaware  was 
sued  as  the  New  Century  Mining 
Company  described  as  a  Kansas 
corporation.        No      objection      was 


1174 


AMENDMENTS 


^  211 


and  that  so  may  be  a  mistake  in  the  name  of  a  corporation  de- 
fendant which  has  appeared  and  defended^  A  cross-bill  has 
been  amended  so  as  to  radically  change  the  ground  of  the  relief 
sought,  when  the  proofs  which  make  the  amendment  necessary 
have  been  furnished  by  the  complainant  in  support  of  the  lat- 
ter's  original  bill.^  When  the  suit  was  begun  in  a  Federal  court, 
that  court  may  allow  an  amendment  setting  forth  the  facts  es- 
sential to  the  Federal  jurisdiction,  such  as  the  requisite  differ- 
ence of  citizenship,^  or  the  sufficient  value  of  the  matter  in  dis- 
pute.^** The  court  of  review  may  allow  an  amendment  setting 
forth  the  facts  which  show  the  requisite  diversity  of  citizenship.^^ 
The  practice  in  removed  cases  is  considered  in  a  subsequent  sec- 
tion.^2  Great  liberality  is  allowed  as  to  amendments  which 
strike  out  parties, ^^  or  bring  in  new  parties,^*  except  as  to  bills 
for  discovery,  to  which  in  England  no  new  parties  could  be 
added.^^  An  amendment  may  be  made  so  as  to  dismiss  the  com- 
plaint as  regards  proper  but  not  indispensable  parties  whose 
presence  would  oust  the  court  of  jurisdiction  ^^  but  an  indis- 
pensable party  whose  citizenship  would  defeat  the  jurisdiction 
cannot  be  brought  in  by  amendment,^'  and  after  a  removal,  an 
amendment  to  substitute  a  defendant  for  the  purpose  of  defeat- 


raised  until  after  trial  and  judg- 
ment. It  was  held  that  the  judg- 
ment was  as  valid  as  if  it  had  been 
obtained  against  the  company  in  its 
right  name. 

7  Clemmens  v.  Washint-tan  Paric 
Steamboat  Co.,  171  Fed.  168. 

8  Chicago  M.  &  St.  P.  Ey.  Co.  v. 
Third  Nat.  Bank,  134  U.  S.  270, 
289.   :}.3   L.   ed.   900,  904. 

9  38  St.  at  L.  9.56,  Comp.  St., 
J}  1251c,  quoted  supra,  §  206.  Con- 
tinental Ins.  Co.  V.  Ehoads,  119  U. 
S.  237,  30  L.  ed.  380;  Halsted  v. 
Buster,  119  U.  S.  341,  30  L.  ed. 
462;  Denny  v.  Pironi,  141  U.  S. 
121,  124,  35  L.  ed.  657,  658; 
Springstead  v.  Crawfordsville  Bank, 
231  U.  S.  541;  Watson  v.  Bonfils, 
C.  C.  A.,  116  Fed.  157;  Maddox  v. 
Thorn,  60   Fed.   217.     See  Brock   v. 


Fuller  Lumber  Co.,  C.  C.  A.,  153 
Fed.  272.  Contra,  Dickinson  v.  Con- 
sol.  Tr.  Co.,  114  Fed.  232,  242. 

10  Thompson  v.  Automatic  Fire 
Protection  Co.,  151  Fed.  945. 

1138  St.  at  L.  956,  Comp.  St., 
§  1251c,  quoted  supra,  §  206. 

12  Infra.   Chapter   XXXII,    8  555. 

13  Connolly  v.  Taylor,  2  Pet.  556, 
7  L.  ed.  518;  Dwight  v.  Humphreys, 
3   McLean,  104. 

14  Fisher  v.  Eutherford,  Baldwin, 
188;  Patterson  v.  Stapler,  7  Fed. 
210. 

15  Marquis  Cholmoudeley  v.  Lord 
Clinton,   2   Meri.  71. 

16  Thomas  v.  Anderson,  C.  C.  .\., 
223  Fed.  41.     See  §  43  supra. 

17  Delaware,  L.  &  W.  B.  Co.  v. 
Mayer,  etc.,  of  Jersey  City,  168  Fed. 
128. 


§211] 


AMENDMENTS    TO    TLAINTIPFS      PLEADINGS 


1175 


ing  the  jurisdiction  has  been  denied. ^^  A  bill  tiled  by  a  married 
woman  can  almost  always  be  amended  by  the  addition  of  the 
name  of  a  next  friend  when  necessary.^®  A  bill  filed  on  behalf 
of  one's  self  and  others  may  be  amended  by  striking  out  the  invi- 
tation to  others  to  join,  provided  none  of  them  have  come  in ;  ^o 
and  a  bill  in  one's  own  name  may  be  amended  by  the  addition  of 
words  sufficient  to  make  it  a  bill  in  behalf  of  a  class.^i  Amend- 
ments have  been  allowed  so  as  to  change  a  bill  or  declaration  tiled 
by  the  plaintiff  individually  into  one  filed  by  him  as  agent,^^  or  as 
cxecutor,23  q^  as  administrator  2*  or  a  bill  filed  by  him  as  adminis- 
trator, into  one  filed  by  hiin  as  ancillarj^  administrator,^^  or  in  his 
individual  capacity,^^  or  into  a  bill  filed  by  the  widow  or  next  of 
kin  of  the  intestate,"  and  a  bill  filed  against  an  executor  into  one 
charging  him  as  administrator  of  the  same  person,^^  and  a  suit 
against  an  individual  into  one  against  him  as  executor  ^9  although 
the  statute  of  limitations  had  expired-^**     H  has  been  said  that 


18  Taylor  v.  Weir,  162  Fed.  585, 
where  there  were  cireumstanees  from 
which  an  estoppel  mis^ht  arise. 

19  Douglas  V.  Butler,  6  Fed.  228. 

20  Yates  v.  Arden,  5  Crauch,  C. 
C.  526;  Anthony  v.  Campbell,  C.  C. 
A.,  112  Fed.  212. 

21  Richmond  v.  Irons,  121  1'.  S. 
27,  80,  L.  ed.  864;  Cood  v.  Blewitt. 
13  Ves.  .397,  401 ;  Atty.  Gen.  v.  New- 
conibe,  14  Ves.  1,  6;  Resse  R.  S. 
Min.  Co.  V.  Atwell,  L.  R.  7  Eq.  347. 

22  Fleitman  v.  McKinnon,  C.  C. 
A.,  2.38  Fed.  98. 

23  Leahy  v.  Haworth,  C.  C.  A.,  4 
L.R.A.    (N.S.)    657,   141   Fed.   850. 

24  Missouri,  K.  &  T.  Ky.  Co.  v. 
Wulf,  C.  C.  A.,  192  Fed.  919;  Rear- 
don  V.  Balaklala  Consol.  Copper  Co., 
193  Fed.  189.  An  amendment  was 
allowed  upon  the  trial  to  permit  an 
administratrix  to  amend  by  aver- 
ring that  her  appointment  was  by 
n  local  court  of  a  different  county 
from  that  first  alleged  in  her  decla- 
ration. Chicago  Great  Western  R. 
Co.  V.  McCormiek,  C.  C.  A.,  200 
Fed.  375. 


25  Gould  V.  Suburban  El.  Lt.  Co., 
243  Fed.  950. 

26  St.  Louis  &  S.  F.  R.  Co.  v. 
Herr,  C.  C.  A.,  193  Fed.  950;  John- 
son V.  Phoenix  Bridge  Co.,  197  N. 
Y.  316. 

27  Keystone  Coal  &  Coke  Co.  v. 
Fekete,  C.  C.  A.,  6th  Ct.,  232  Fed. 
72.  See  Salyer  v.  Consolidation  Co., 
C.  C.  A.,  6th  Ct.,  246  Fed.  794.  Con- 
tra, Alexander  v.  WilkesBarre  Ry. 
Co.  (D.  C.  M.  D.,  Pa.).  235  Fed. 
461;  Johnson  v.  Phoenix  Bridge 
Co.,  197  N.  Y.  316;  Chsaitis  v. 
Lehigh  Valley  Coal  Co.,  174  App. 
Div.  (N.  Y.)  600;  Benyak  v.  Le- 
high Coal  &  Nav.  Co.,  166  App.  Div. 
(N.  y.),  829,  held  that  where  the 
name  of  one  of  the  parents  was 
omitted  from  the  title  it  might  be 
added  by  amendment  if  the  limita- 
tions prescribed  by  the  statute  had 
expired. 

28  Randolph    v.    Barrett.    16    Pet. 
138,  10  L.  ed.  914. 

29  Williams  v.  Cobb,  219  Fed.  66.3. 

30  Reardon  v.  Balaklala  Consol. 
Copper   Co.,   193  Fed.    189. 


1176 


AMENDMENTS 


[§212 


when  the  complaint  contains  any  allegation  of  a  ground  of  recov- 
ery, although  merel}^  inferential,  the  court  has  discretionary 
power  to  permit  the  defect  to  be  cured  by  amendment.^^  In  an 
English  case,  a  bill  in  behalf  of  a  charity  was  changed  by  amend- 
ment into  an  information.^^ 

Before  the  new  equity  rules,  it  was  held  that  in  a  removed 
ease,  a  complaint  containing  a  statement  of  grounds  for  equit- 
able relief  might  be  amended,  so  as  to  turn  it  into  a  bill  in 
equity ;  although  the  issues  have  been  tried  on  the  common  law 
side  of  the  court.^^  Now,  if  at  any  time  it  appear  that  a  suit 
commenced  in  equity  should  have  been  brought  as  an  action  on 
the  law  side  of  the  court,  it  shall  be  forthwith  transferred  to 
the  law  side  and  be  there  proceeded  with,  with  only  such  altera- 
tion in  the  pleadings  as  shall  be  essential.^* 

§212.  Amendment  by  pleading  matters  subsequent  to  the 
filing  of  the  bill.  The  general  rule  is  that  nothing  which  has 
occurred  since  the  filing  of  a  bill  can  be  added  to  it  by  amend- 
ment.i  Such  matters,  when  admissible,  should  ordinarily  be 
introduced  by  a  supplemental  bill.^  It  was  held  incompetent  to 
amend  a  bill,  stating  that  certain  notes  and  mortgages  were  exe- 
cuted under  a  threat  by  the  defendant  that  he  would  kill  the 
complainant  if  they  were  not  executed  and  paid  at  their  matur- 
ity, by  adding  the  allegation,  "that  in  pursuance  of  such  threat 
the  defendant  did,  subsequently  to  the  commencement  of  this 
suit,  take  the  life  of  the  original  complainant."  ^  Such  a  mur- 
der does  not  add  to  the  complainant's  cause  of  action,  although 


31  Great  Northern  Ey.  Co.  v.  Her- 
ron,  C.  C.  A.,  1:56  Fed.  49. 

82  President  of  St.  Mary  M.  Col- 
lege V.  Sibthorp,  1  Enss.  154. 

33  Goodyear  Shoe  Machinery  Co. 
V.  Cancel,  C.  C.  A.,  119  Fed.  092; 
Dancel  v.  Goodyear  Shoe  Machinery 
Co.,  C.  C.  A.,  144  Fed.  679,  in  which 
the  author  was  counsel.  The  point 
does  not  appear  in  the  report,  but 
the  permission  was'contained  in  the 
mandate,  and  objections  to  the  same 
argued  twice  in  the  Circuit  Court 
of  Appeals,  and  again  upon  the  peti- 


tion for  a  certiorari  which  was  de 
nied  by  the  Supreme  Court ;  2u2 
U.  S.   619,  50   L.  ed.   1174. 

34  Eq.  Eul.  22. 

§  212.  1  Wray  v.  Hutchinson,  2 
M.  &  K.  235;  Mason  v.  Hartford, 
P.  &  F.  E.  Co.,  10  Fed.  334;  Copen 
V.  Flesher,  1  Bond,  440;  Lyster  v. 
Stickney,  12  Fed.  609;  Mellor  v. 
Smither,   C.  C.  A.,   114   Fed.   116. 

2  Kryptok  Co.  v.  Haussmann  & 
Co.,  216  Fed.  267. 

3  Lyster  v.  Stickney,  12  Fed.  609, 
610. 


§  212]         AMENDMENTS    PLEADING    MATTERS   SUBSEQUENT  1177 

it  might  be  put  in  evidence  as  tending  to  prove  the  original 
duress.* 

A  bill  may  perhaps  be  amended  before  answer,  demurrer,  or 
plea,  by  alleging  new  matter  that  has  occurred  since  it  was  first 
filed. ^  And  it  has  been  held  that  where  a  plaintiff  has,  at  the  time 
of  filing  his  original  bill,  an  inchoato  right,  to  perfect  which  a 
formal  act  alone  is  necessary,  and  such  formal  act  is  not  per- 
formed till  afterwards;  as  where  an  executor  files  a  bill  before 
probate,  and  subsetiuently  proves  the  testament,^  or  the  next  of 
kin  brings  a  suit  to  protect  the  personal  estate  of  an  intestate, 
and  subsequently  procures  her  appointment  as  administratrix,' 
or  a  foreign  administrator  files  a  bill  before  obtaining  ancillary 
letters  of  administration,  and  such  letters  are  subsequently  is- 
sued to  him;  8  the  introduction  of  the  fact  by  amendment  will 
be  permitted.*  If  has  been  said  that  amendments  might  be 
allowed  to  set  forth  damages  that  accrued  since  the  filing  of  the 

bill." 

It  has  been  also  held  in  England  that  the  "defendant,  when 
he  puts  in  his  answer,  must  state  the  facts  as  they  then  are;  and 
if  circumstances  are  then  introduced  in  the  answer  which  oc- 
curred subsequent  to  the  filing  of  the  bill  the  plaintiff  must  be 
allowed  to  make  amendments  to  the  bill,  so  as  to  show  that  such 

4Lyster  v.  Stickney,  12  Fed.  609.  141  Fed.  850;   holding  that  the  an- 

6  Story's   Eq.   PI.,   §885;    Candler  ciliary    letters    related    back    to    the 

V.    Pettit,    1    Paige    (N.    Y.),    168;  date    of    the   filing   of   the   bill,   not 

Ogden  V.  Gibbons,  Haist.  N.  J.  Dig.  only  for  the   purpose   of  qualifying 

172,  complainant    to    sue,    but    also    so 

6  Belloat  V.  Morst,  2  Hayw.  (N.  as  to  defeat  the  statute  of  limi- 
C.)  157;  Daniell's  Ch.  Pr.  (2d  Am.  tations.  Dodge  v.  Town  of  North 
ed.)   460.  Hudson,  188  Fed.  489,  an  action  un- 

7  Humphreys  v.  Humphreys,  ?>  der  the  State  statute  for  negligence, 
P.  Wms.  348;  Bradford  v.  Felder,  which  caused  the  death  of  the  intes- 
2  M'Cord  (S.  C),  Ch,  170.  See  tate.  Contra,  Mason  v.  Hartford, 
Person  v.  Fidelity  &  Casualty  Co.,  P.  &  F.  R.  Co.,  10  Fed.  334. 

C.    C.    A.,    92    Fed.    965;    reversing  9  Daniell's   Ch.   Pr.    (2d   Am.  ed.) 

s.   c,   84   Fed.   759;    Mo.   Kansas  &  460,      461;       Swatzel      v.      Arnold, 

Tex.    Ry.    Co.    v.    Wulf,    226    U.    S.  Woolw.    38:'.;     Black    v.     Henry    G. 

570,  57  L.  ed.  355.  Allen    Co.    9    L.R.A.    433,    42    Fed. 

8  Swatzel  v.  Arnold,  Woolw.  338;  618,  624;  Humphreys  v.  Humphreys, 
Black    V.    Henry    G.    Allen    Co.,    9  3  P.  Wms.  348. 

L.R.A.     433,     42     Fed.     618,     624;  10  Mitchell    v.    Big    Six    Develop- 

Hodges  V.  Kimball,  C.  C.  A.,  91  Fed.       ment   Co.,    186   Fed.   552. 
845;    Leahy   v.   Haworth,   C.   C.   A., 


1178 


AMENDMENTS 


^213 


new  circumstances  mentioned  in  the  answer  are  not  of  the  color 
he  represents  them,  and  so  as  to  obtain  a  complete  answer  as  to 
such  circumstances. ' '  ^^  Except  as  said  above  and  possibly  in  a 
i'ew  cases  of  the  assignment  of  patents,^^  where  the  plaintiff  has 
no  cause  of  action  at  the  time  the  suit  is  brought,  he  cannot  con- 
tinue the  suit  by  pleading  the  subsequent  accrual  of  a  cause  of 
action  to  him.^^  Thus,  a  defective  creditor's  bill  cannot  be 
amended  by  setting  up  a  judgment  obtained  after  it  was  filed. ^* 
Where,  prior  to  the  tiling  of  a  bill  for  the  infringement  of  a 
patent,  the  defendant  had  committed  no  infringement,  and  had 
threatened  none ;  it  was  held :  that  a  subsequent  change  in  the 
structure,  which  constituted  an  infringement,  would  not  warrant 
the  granting  of  a  preliminary  injunction  in  the  same  suit.^^ 

§  213.  Proceedings  upon  an  amended  bill.  AVhen  the  amend- 
ment merely  brings  in  new  parties  defendant,  they  alone  need  be 
served  with  a  new  subpoena.^  If,  however,  a  bill  is  substantially 
amended  by  the  addition  of  new  charges,  according  to  the  Eng- 
lish practice  a  subpoena  to  answer  the  amendments  had  to  be 
sued  out  and  served  upon  all  the  defendants.^  Where,  before 
answer,  the  bill  is  amended  in  a  material  point,  the  time  to 
answer  is  extended  to  the  same  time  as  if  the  amended  were  an 
original  bill.^  If,  however,  a  defendant  has  answered  the  origi- 
nal bill,  he  cannot,  without  obtaining  leave  to  withdraw  his  first 
answer,  answer  to  any  more  than  the  new  matter,  unless  the 
amendments  virtually  make  a  new  case.*     Where  the  amend- 


11  Sir  Thomas  Plumer,  V.  C,  in 
Knight   V.  Matthews,   1   Madd.   566. 

12  See  infra,  §§231,  234. 

13  Putney  v.  Whitmire,  66  Fed. 
385;  Westinghouse  Air-Brake  Co.  v. 
Christensen  Engineering  Co.,  121 
Fed.  558;  Am.  Bonding  &  Tr.  Co. 
V.  Gibson  County,  C.  C.  A.,  145  Fed. 
871. 

14  Putney  v.  Whitmire,  66  Fed. 
385. 

15  Westinghouse  Air-Brake  Co.  v. 
Christensen  Engineering  Co.,  121 
Fed.  558. 

§  213.  1  Longworth  v.  Taylor,  1 
MeLean,  514;  Angerstein  v.  Clarke, 
Ves.  Jr.  250;   Skeffington  v.  , 


4  Ves.  66;  Am.  Steel  &  Wire  Co. 
V.  Wire  Drawers  &  Die  Makers 
Unions,  90  Fed.  598,  601.  (Where 
the  amendment  showed  that  individ- 
ual defendants  upon  whom  notice 
had  been  already  served  were  offi- 
cers and  members  of  a  voluntary 
association  which  it  was  sought  to 
bind  by  the  injunction.) 

2  Cooke  V.  Davies,  T.  &  R.  309; 
Bramston  v.  Carter,  2  Sim.  458. 
See  Kendall  v.  Beckett,  1  Russ.  152. 

3  Nelson  v.  Eaton,  66  Fed.  376. 

4  Keene  v.  Wheatley,  9  Am.  Law 
Reg.  33,  60;  Atkinson  v.  Hanway, 
1  Cox  Eq.  3-60;  Ellice  v.  Goodson, 
3   M.  &   C.   653;    Ritchie  v.   Aylwin 


§  214 J  AMEXUMEXT    OF    AXSWEKS    AXD    I'LEAS  117U 

ments  seek  to  introduce  a  new  matter  which  is  properly  the  sub- 
ject of  a  supplemental  bill,  the  defendant  must  raise  that  objec- 
tion b}^  answer,^  or  motion  to  dismiss.^  Otherwise,  the  objection 
will  be  waived.'  The  equity-  rules  provide  that,  "In  any  case 
where  an  amendment  shall  be  made  after  answer  tiled,  the  de- 
fendant shall  put  in  a  new  answer  or  supplemental  answer 
within  ten  days  after  that  on  which  the  amendment  or  amended 
bill  is  filed,  unless  the  time  is  enlarged  or  otherwise  ordered 
by  a  judge  of  the  court;  and  upon  his  default,  the  like  proceed- 
ings may  be  had  as  in  cases  of  an  omission  to  put  in  an  an- 
swer. ' '  ^  An  answer  to  an  amended  bill  is  impertinent  if  it  con- 
tains any  matter  which  was  pleaded  in  the  answer  to  the  bill 
before  amendment.^  It  seems  to  have  been  the  English  rule  that 
an  answer  to  an  amended  bill  might  set  up  an  entirely  new  de- 
fense inconsistent  with  that  in  his  former  answer. i°  The  court 
may  after  ameudtuent  refuse  leave  to  file  an  answer  which  does 
not  plead  a  defense  to  the  new  matter.^^ 

§  214.  Amendment  of  answers  and  pleas.  The  Equity  Rules 
provide  concerning  the  amendment  of  answers:  "The  answer 
may  be  amended,  by  leave  of  the  court  or  judge,  upon  reason- 
able notice,  so  as  to  put  any  averment  in  issue,  when  justice 
requires  it."  *  It  will  be  observed  that  this  does  not  specifically 
provide  for  the  insertion  of  a  new  affirmative  defense  by  amend- 
ment, as  was  permitted  by  the  former  practice.^  The  principles 
upon  which  the  courts  proceed  in  allowing  such  amendments  is 
thus  stated  by  Judge  Story :  "In  mere  matters  of  form,  or  mis- 
takes of  dates,  or  verbal  inaccuracies,  courts  of  equity  are  very 
indu'gent  in  allowing  amendments.  But  when  application  is 
made  to  amend  an  an.swer  in  material  facts,  or  to  change  essen- 
tially the  grounds  taken  in  the  original  answer,  courts  of  equity 

15   Ves.   79;    North    Chicago   St.   R.  9  Gier  v.  Gregg,  4  McLean,  202. 

Co.   V.   Chicago  Union  Traction  Co.,  10  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 

150  Ted.   612.     See  Ellice  v.   Good-  4fi8;    citing   Bolton    v.   Bolton.    Ms. 

son,  3  M.  &  C.  653.  See  also  Trust  &  F.  Ins.  Co.  v.  Jen- 

SWray  v.  Hutchinson,  2  M.  &  K.  kins,  S  Paige   (N.  Y.)   589. 
235.  n  Chicago,   M.   &   St.   P.   Ry.   Co. 

«  Brown  v.   Iligden,  1  Atk.  291.  v.  Tliird  Nat.  Bank,  134  U.  S.  276, 

7  Archbishop    of    York    v.    Staple-  289,  33   L.  ed.  900,  905. 
ton,  2  Atk.  136.  §214.     1  Eq.  Rule  30. 

8  Equity    Rule  32;    copied  in   sub-  2  See  Smith  v.  Babcock,  3  Sumner, 
stance  from  Eq.  Rul.  46  of  1842.  538. 


1180  AMENDMENTS  [§  214 

are  exceedingly  slow  and  reluctant  in  acceding  to  it.     To  sup- 
port such  applications,  they  require  very  cogent  circumstances 
and  such  as  to  repel  the  notion  of  any  attempt  of  the  party  to 
evade  the  justice  of  the  cause,  or  to  set  up  new  and  ingeniously 
contrived  defenses  or  subterfuges.    When  the  object  is  to  let  in 
new  facts  and  defenses  wholly  dependent  upon  parol  evidence, 
the  reluctance  of  the  court  is  greatly  increased,  since  it  has  a  nat- 
ural tendency  to  encourage  carelessness  and  indifference  in  mak- 
ing answers,  and  leaves  much  room  for  the  introduction  of  tes- 
timony manufactured  for  the  occasion.    But  when  the  new  facts 
sought  to  be  introduced  are  written  papers  or  documents,  which 
have  been  omitted  by  accident  or  mistake,  there  the  same  reason 
does  not  apply  in  its  full  force,  for  such  papers  and  documents 
cannot  be  made  to  speak  a  different  language  from  that  which 
originally  belonged  to  them.    The  whole  matter  rests  in  the  sound 
discretion  of  the  court. "  ^    "It  seems  to  me  that  before  any  court 
of  equity  should  allow  such  amended  answers,  it  should  be  per- 
fectly satisfied  that  the  reasons  assigned  for  the  application  are 
cogent  and  satisfactory ;  that  the  mistakes  to  be  corrected,  or  the 
facts  to  be  added,  are  made  highly  probable,  if  not  certain ;  that 
they  are  material  to  the  merits  of  the  case  in  controversy ;  that 
the  party  has  not  been  guilty  of  gross  negligence ;  and  that  the 
mistakes  have  been  ascertained,  and  the  new  facts  have  come 
to  the  knowledge  of  the  party,  since  the  original  answer  was 
put  and  sworn  to.    Where  the  party  relies  upon  new  acts  which 
have  come  to  his  knowledge  since  the  answer  was  put  in,  or  where 
it  is  manifest  that  he  has  been  taken  by  surprise,  or  where  the 
mistake  or  omission  is  manifestly  a  mere  inadvertence  and  over- 
sight, there  is  generally  less  reason  to  object  to  the  amendment 
than  there  is  where  the  whole  bearing  of  the  facts  and  evidence 
must  have  been  well  known  before  the  answer  was  put  in."  * 

An  amendment  of  an  answer,^  or  a  cross-bill,  changing  the 
character  of  the  defense  will  rarely  be  allowed  after  the  court 
has  rendered  or  caused  to  be  rendered  an  opinion  adverse  to  the 

3  Smith  V.  Babcock,  3  Sumn.  583,  119;  Gubbins  v.  Laughtenschlager, 
5gg  7.5  Fed.  615;   Claflin  v.  Bennett,  51 

4  Smith  V.  Babcock,  3  Sumn.  583,  Fed.  693,  701.  See  Walden  v.  Bod- 
586;  N.  Y.  Filter  Co.  V.  0.  H.  Jewett  ley,  14  Pet.  156,  10  L.  ed.  398, 
F.  Co.    62  Fed.  582.  Hamilton  v.  Nevada  G.  &  S.  M.  Co., 

6  Calloway    v.    Dobson,    1    Brock.       33  Fed.  562,  568, 


§214] 


AMENDMENT   OP    ANSWERS    AND    PLEAS 


1181 


position  originally  taken  by  the  defendant.^  The  defendant  will 
rarely  be  allowed  to  withdraw  an  admission  which  he  has  made.'' 
Leave  to  amend  will  be  denied  when  the  complainant  proves  con- 
clusively by  affidavit  that  the  new  matter  sought  to  be  intro- 
duced is  false.8  Ordinarily,  leave  to  amend  an  answer  will  be 
denied  when  the  defendant  knew  of  the  facts  which  he  wishes  to 
introduce,  at  the  time  his  original  answer  was  drawn ; »  or  might 
have  then  discovered  them  by  the  exercise  of  reasonable  dili- 
gence.i°  An  omission  due  to  a  mi.stake  of  law  cannot  ordinarily 
be  cured  by  amendment. ^^  The  court  may  refuse  to  allow  an 
amendment  which  w'ould  introduce  an  unconscientious  defense, 
such  as  the  statute  of  limitations,^^  the  statute  of  frauds,^^  or  that 
a  contract  made  by  a  complainant  corporation  was  not  author- 
ized by  its  charter;  i*  or  because  of  laches.^^  Where  on  the  trial 
defendant  was  granted  permission  to  file  an  amended  answer 
"more  in  detail"  than  one  then  stated,  so  much  as  raised  new 
issues  operating  as  a  surprise  was  afterwards  rejected.^^ 

When  the  proposed  amendment  is  trivial  the  answer  may  be 
removed  from  the  file,  altered,  resworn  to,  and  refiled ;  "  but  if 
it  is  of  any  length,  it  is  customary  to  file  a  supplemental  answer 
setting  it  forth. ^' 

Pleas  at  common  law,  verified  before  the  wrong  officer,  may  be 


6  Ferguson  Contracting  Co.  v. 
Manhattan  Tr.  Co.,  C.  C.  A.,  118 
Fed.  791. 

7Ruggles  V.  Eciay,  11  Blatehf. 
524 ;  First  Trust  &  Sav.  Bank  v.  Bit- 
ter Root  Valley  Irr.  Co.,  251  Fed. 
320. 

8  Hicks   V.    Otto,    17    Fed.    5.^9. 

9  India  R.  C.  Co.,  v.  Phelps,  8 
Blatehf.  85;  Webster  L.  Co.  v.  Hig- 
gins,  13  Blatehf.  349;  Cross  v.  Mor- 
gan, 6  Fed.  241;  Suydam  v.  Trues- 
dale,  6  McLean,  459.  But  see  Stand- 
ard El.  I.  Co.  V.  Ramsey,  130  Fed. 
151 ;  City  of  Hutchinson  v.  Kansas 
Bitulithic  Co.,  C.  C.  A.,  239  Fed. 
659;  Walker  v.  Giles,  207  Fed.  825. 
See  Grinnell  Washing  Mach.  Co.  v. 
Clarinda  Lawn  M.  Co.,  237  Fed.  98. 

10  India    R.    C.    Co.    v.    Phelps,    8 


Blatehf.  85;  Webster  L.  Co.  v.  Hig- 
gins,  13   Blatehf.  349. 

11  Web.ster  L.  Co.  v.  Higgins,  13 
Blatehf.  349;  Cross  v.  Morgan,  6 
Fed.   241. 

12  Cock  V.  Evans,  9  Yerg  (Tenn.) 
287. 

13  Cook  V.  Bee,  2  Tenn.  Ch.  344. 

14  Third  Av.  Sav.  Bank  v.  Dim- 
ock,  9  C.  E.  Green  (24  N.  J.  Eq.)   26. 

16  Shapiro  v.  Engel,  257  Fed.  854. 

16  First  Trust  &  Sav.  Bank  v. 
Bitter  Root  Valley  Irr.  Co.,  251  Fed 
320. 

17  Bailey  W.  Mach.  Co.  v.  Young, 
12   Blatehf.   199. 

ISDolder  v.  Bank  of  England,  10 
Ves.  284,  285;  Daniell 's  Ch.  Pr. 
(5th  Am.  ed.)  779,  780. 


1182 


AMENDMENTS 


[§  215 


corrected  by  amendment  and  the  proper  verification  added  on 
the  trial,^®  and  amendments  to  pleadings  will  be  allowed  at  com- 
mon law  in  all  cases  authorized  by  the  State  statute.^o 

§215.  Practice  in  obtaining:  leave  to  amend.  It  has  been 
held  that  the  practice  upon  an  application  to  amend  a  common 
law  follows  that  in  the  State  where  the  action  is  pending. ^ 

In  equity  the  application  for  leave  to  amend  must  be  in  writ- 
ing, stating  the  new  matter  which  the  applicant  desires  to 
introduce  by  amendment,  and  must  be  supported  by  an  affidavit, 
stating  the  reason  why  this  matter  was  not  included  in  the  origi- 
nal pleading.2  It  is  the  better  practice  for  the  complainants 
to  present  specific  amendments  to  paragraphs  of  the  original 
bill  and  not  to  present  a  substituted  bill,^  except  under  extra- 
ordinary circumstances.  In  one  case,  detailed  proof  by  affidavit 
was  required  concerning  matters  that  it  was  desired  to  add  by 
amendment  in  a  general  allegation.*  When  a  party  is  entitled  to 
amend  as  of  course,  no  affidavit  is  required.^  Where  the  former 
pleading  was  verified,  oath  must  be  made  to  the  truth  of  the  pro- 
posed amendment.^  Where  the  proposed  amendment  consists  of 
matters  disclosed  by  documentary  evidence,  the  documents  them- 
selves must  be  produced  if  possible.'  Notice  of  the  application 
for  an  amendment  must  always  be  given  when  leave  of  the  court 
is  required.^  An  amendment  inserting  the  name  of  a  new  party 
plaintiif  should  not,  ordinarily,  be  allowed  without  notice  to  him.^ 


19  Bank   of   Edgfield   v.   Farmers ' 
C.  M.  Co.,  18  L.R.A.  201,  52  Fed.  98. 

20Lemaii    v.    Baltimore    &    O.    R. 
Co.,  128  Fed.  191. 

§215.  lU.  S.  E.  S.,  §914; 
Rosenbach  v.  Dreyfuss,  1  Fed.  391; 
Leman  v.  Baltimore  &  O.  R.  Co., 
128  Fed.  191.  But  see  Erstein  v. 
Rothschild,  22  Fed.  61.  Contra, 
dicta  in  Manitowoc  Malting  Co.  v. 
Fuechtwanger,  169  Fed.  983;  Snead 
V.  M  'Coull,  12  How.  407,  422,  13  L. 
ed.  1043,  1049;  Mer.  Nat.  Bank  v. 
Carpenter,  101  U.  S.  567,  25  L.  ed. 
815;  Wells  v.  Wood,  10  Ves.  401, 
Nabob  of  the  Carnatic  v.  East  In- 
dia Co.,  1  Ves.  Jr.  374,  385;  Rod- 
gers   V.   Rodgers,   1    Paige    (N.   Y.), 


424;    Daniell's    Ch.    Pr.    (5th    Am. 
ed.)  781. 

2  Old  Dominion  Copper  Mining  & 
Smelting  Co.  v.  Lewisohn,  176  Fed. 
745. 

3  Ibid. 

4  Postal  Tel.  Cable  Co.  v.  Liver- 
more  &  Knight  Co.,  194  Fed.  180. 

5  Chase  Electric  Const.  Co.  v.  Co- 
lumbia Const.  Co.,  136  Fed.  699. 

6  Rodgers  v.  Rodgers,  1  Paige  (N. 
Y.),  424. 

TChurton  v.  Frewen,  L.  R.  1  Eq. 
238;  Daniell's  Ch.  Pr.  (5th  Am. 
ed.)   781. 

SRiggs   V.   Brown.    172    Fed.    638. 

9  Frank  v.  Union  Cent.  L.  I.  Co., 
130  Fed.  224. 


§215]  PRACTICE    IX    OBTAINING    LEAVE    T(  t    AMEND  1183 

The  court  ma}'  impose  costs  or  other  terms  as  a  condition  prece- 
dent to  amendment ;  for  example,  a  disclosure  of  the  names  of 
the  witnesses  whom  the  party  expects  to  call  to  prove  the  new 
matter,^®  or  a  direction  that  testimony  taken  under  the  former 
issue  shall  })e  allowed  to  stand  and  that  short  notice  be  taken  of 
subsequent  proceedings.^^  This  is  the  usual  practice  when  a  mo- 
tion for  intervention  is  granted  ^^ 

An  intervcnor  cannot  file  an  amended  ])ill  bringinp;  in  new 
parties  who,  if  originally  joined,  would  have  defeated  the  juris- 
diction.^^  The  time  within  which  the  amendment  must  be  filed 
may  be  limited. ^^  It  has  l)een  said  that  when  leave  is  asked  to  file 
a  substituted  bill  of  complaint,  the  court  can  only  permit  or  reject 
it  as  a  whole  and  should  not  be  expected  to  refuse  the  same  and 
permit  it  to  be  filed  when  drawn  in  a  different  form."  When 
leave  to  amend  by  adding  the  essential  jurisdictional  averments 
was  granted  after  verdict  for  plaintiff,  no  trial  was  permitted  of 
any  other  issue  except  that  which  the  defendant  raised  upon 
these, ^^  and  the  verdict  upon  the  other  issues  was  allowed  to 
stand. ^'  In  one  case,  the  parties  were  directed  to  take  deposi- 
tions concerning  the  jurisdictional  allegations  in  support  of  the 
application  for  an  amendment. ^^  The  order  allowing  the  amend- 
ment should  state  the  new  matter  to  be  inserted. ^^  Where  an 
amendment  inserts  a  new  cause  of  action  barred  by  limitation  ^^ 
or  states  new  matter  not  allowed  by  the  order  ^^  it  may  be  stricken 
from  the  file.  An  objection  that  an  amended  bill  contains  matter 
which  should  have  been  pleaded  in  a  supplemental  bill  is  waived 
if  not  set  up  by  motion  or  answer.^^    It  was  held,  that  an  order 

10  Caster  v.  Wood,   1    Baldvv.  289.       144,  153;   Grand  Trunk  Western  R. 

11  Farmers'  Loan  &  Tr.  Co.v.  Cen-       Co.   v.   Reddick,   C.  C.   A.,   160   Fed. 
tral  Park,   N.   &   E.  R.   R.   Co.,   175       898. 

Fed.  528.  17  Ibid. 

12  Mathieson  v.   Craven,   247  Fed.  18  Crosby  v.  Cuba  R.  Co.,  158  Fed. 
228.                                                                      144,  1.';!. 

ISClauss  V.  Palmer  Union  Oil  Co.,  19  1)aiiioirs  Cli.  I'r.  (5th  Am.  ed.) 

213  Fed.  286.  4lu. 

14  Klein     v.     Title     Guaranty     &  20  Salvors  v.  I'.  S.,  C.  C.  A.,  257 
Surety  Co.,  166  Fed.  365,  ten   days.  F.-il.  255. 

15  Old  Dominion  Copper  Mining  &  21  Strange    v.    Collins,    2    V.    &    B. 
Smelting  Co.  v.  Lewisohn,  176  Fed.  Hi.i,   167. 

745.  22  Seattle  &  S.  E.  Ry.  Co.  v.  Union 

16  Crosby  v.  Cuba  R.  Co.,  158  Fed.       Tr.  Co.,  79  Fed.  179. 


1184 


amendmeJjts 


[§215a 


dismissing  a  bill,  when  a  plea  is  sustained,  is  a  bar  to  a  subse- 
quent application  for  leave  to  amend. ^^ 

§215a.  Amendments  upon  appeal  or  error.  The  court  of 
review  may  allow  an  amendment  alleging  facts  which  show  the 
requisite  diversity  of  citizenship  ^  or  which  obviate  the  objection 
that  a  suit  in  equity  should  have  been  brought  at  law  or  an  action 
at  law  should  have  been  brought  in  equity.^  Otherwise  not^ 
except  by  consent.*  Or  when  the  parties  have  treated  the  case 
below  as  if  an  amendment  were  unnecessary  or  had  been  made.* 
It  has  been  held  that  the  court  of  review  cannot  permit  an 
amendment  striking  out  a  proper  but  unnecessary  path  whose 
presence  defeats  the  jurisdiction.^ 

§  215b.  Review  of  rulings  on  amendments.  An  appellate 
court  may,^  but  rarely  ^  will,  reverse  a  decree  for  an  error  in  re- 
fusing permission  to  make  an  amendment;  never  unless  the  pro- 
posed amendment  api^ears  upon  the  record.^  A  refusal  to  al- 
low an  amendment,  after  final  decree,  will  rarely,  if  ever,  be 
reviewed  by  an  appellate  court.*  It  has  been  said  that  a  decree 
will  not  be  reversed  for  an  error  in  allowing  amendments.* 


23  KapKael  v.  Trask,  118  Fed.  678. 

§  215a.  1  38  St.  at  L.  956,  Comp. 
St.  §  1251c,  quoted  supra,  §206; 
Swayno  &  Hoyt  v.  Barsch,  C.  C.  A., 
226  Fed.  581. 

2  38  St.  at  L.  956,  Comp.  St. 
§  1251a,   quoted   supra,   §  206. 

3  Pacific  E.  Co.  of  Mo.  v.  Ketchum, 
95  U.  S.  1,  24  L.  ed.  347;  Yeandle 
V.  Pa.  E.  Co.,  C.  C.  A.,  169  Fed.  938. 
But  see  Williams  v.  Molther,  C.  C. 
A.,  198  Fed.  460. 

4  Kennedy  v.  Georgia  State  Bauk, 
8  How.  586,  12  L.  ed.  1209. 

6  Tremolo  Patent,  23  Wall.  518,  23 
L.  ed.  97;  Confectioner  s  Maeh.  & 
Mfg.  Co.  V.  Eacine  Eng.  &  Maeh. 
Co.,  163  Fed.  914;  Old  Dominion 
Copper  Mining  &  Smelting  Co.  v. 
Lewisohn,  176  Fed.  745;  Pa.  Steel 
Co.  V.  N.  Y.  City  Ey.  Co.,  190  Fed. 
602;  MeEldowney  v.  Card,  193  Fed. 
475. 

6  Thomas  v.  Anderson,  C.  C.  A., 
223  Fed.  41. 


§  215b.  1  Eidle  v.  Whitehill,  135  U. 
S.  621,  627,  640,  34  L.  ed.  282,  285, 
289;  Lant  v.  Manley,  75  Fed.  634; 
U.  S.  V.  Lehigh  Valley  E.  E.  Co.,  220 
U.  S.  257,  55  L.  ed.  458 ;  Am.  Plate 
Glass  Co.  V.  Struthers-Wells  Co., 
C.  C.  A.,  201  Fed.  6. 

2  Mer.  Nat.  Bank  v.  Carpenter, 
101  U.  S.  567,  568,  25  L.  ed.  815, 
816;  Hudson  v.  Eandolph,  C.  C.  A., 
66  Fed.  216;  McKemy  v.  Supreme 
Lodge  A.  O.  IT.  W.,  C.  C.  A.,  180 
Fed.  961;  Brookfield  v.  Novelty 
Glass  Mfg.  Co.,  C.  C.  A.,  170  Fed. 
960;  Ee  Frank,  C.  C.  A.,  239  Fed. 
709;  Gooeh  v.  Presbyterian  Home 
Hospital,  C.  C.   A.,  239  Fed.  828. 

3  National  Bank  v.  Carpenter, 
101  U.  S.  567,  568,  25  L.  ed.  815, 
816. 

4  Brown  v.  Schleier,  194  U.  s.  18, 
48  L.  ed.  857. 

5  Chapman  v.  Barney,  129  U.  S. 
677,  681,  32  L.  ed.  800,  801. 


§  215b] 


REVIEW  OF   RULINGS  ON   AMENDMENTS 


1185 


The  t'oui't  upon  appeal  will  disregard  an  amended  pleading 
filed  Avitliout  leave,^  unless  the  other  party  has  treated  it  as  valid, 
when  he  cannot  raise  the  objection  for  the  first  time  upon  ap- 
peal.''' B}^  making  an  amendment  plaintifT  waives  his  objection 
to  a  previous  ruling  that  an  amendment  was  necessary.' 
Where  it  does  not  appear  that  the  amendment  prejudiced  the 
opposite  party,  for  example,  that  the  statute  of  limitations  had 
run  pending  the  suit  upon  appeal  or  error,  the  exception  to  its 
allowance  will  be  disregarded.® 

When  both  parties  have  conducted  the  case  as  if  the  pleadings 
contained  certain  allegations  therein  omitted,  an  amendment 
inserting  such  allegations  may  be  allowed  at  almost  any  stage  of 
the  cause. ^°  Where  the  record  on  appeal  shows  that  an  amended 
bill  which  omitted  one  of  the  original  parties  was  filed  by  leave  of 
the  court,  it  will  be  presumed  that  leave  to  dismiss  as  to  such 
part}^  was  granted  where  there  is  nothing  in  the  record  to  show 
the  contrary.ii  An  appellate  court  may,  however,  especially 
where  the  question  of  jurisdiction  was  not  raised  below,  when  re- 
versing a  judgment  direct  that  the  plaintiff  be  permitted  to 
amend.i2  |t  has  been  held  that  upon  such  a  revei-sal  the  issues 
may  be  narrowed  to  the  question  of  the  jurisdiction  of  the 
court."  Where  a  new  trial  is  ordered  upon  a  writ  of  error  i* 
or  in  a  suit  in  equity  upon  a  reversal  when  the  mandate  grants 
leave  to  both   sides  to  adduce  further  evidence,^^  or  possibly 


6  Terry  v.  McLiire,  lu:5  U.  S.  442, 
26  L.  ed.  403. 

7  Clements  v.  Moore,  6  Wall.  299, 
18  L.  ed.  786. 

8  U.  S.  V.  Gr.  Northern  Ky  Co.,  C. 
C.  A.,  220  Fe?f.  630. 

9  O  'Brien  v.  Illinois  Surety  Co.,  C. 
C.  A.,  203  Fed.  436. 

10  Tremolo  Patent,  23  Wall.  518, 
23  L.  ed.  97;  Confectioners'  Maeh. 
&  Mfg.  Co.  V.  Eacine  Eng.  &  Mach. 
Co.,  163  Fed.  914;  Old  Dominion 
Copper  Mining  &  Smelting  Co.  v. 
Lewisohn,  176  Fed.  745;  Pa.  Steel 
Co.  V.  N.  Y.  City  Ry.  Co.,  190  Fed. 
602;  McEldowney  v.  Card,  193  Fed. 
475. 


llllicklin  V.  Marco,  C.  C.  A.,  56 
Fed.    549. 

12  Puget  Sound  Nav.  Co.  v.  Lav- 
endar,  C.  C.  A.,  156  Fed.  361;  Whit- 
ney-Cent. Trust  &  Sav.  Bank  v.  Gen- 
eral Fire  Extinguisher  Co.,  C.  C.  A., 
240  Fed.  631. 

13  Grand  Trunk  Western  Ry.  Co. 
V.  Reddick,  C.  C.  A.,  160  Fed.  898, 
which  is  contrary  to  the  usual  prac- 
tice. 

14  Farmer  v.  Atlantic  Coast  Line 
R.  Co.,  205  Fed.  319. 

15  Rio  Grande  Dam  &  Irr.  Co.  v. 
U.  S.,  215  U.  S.  266,  268,  54  L. 
ed.  190,  192.  See  Am.  Bell  Tel.  CO. 
V.  U.   S.  68  Fed.  542,  570. 


1186  AMENDMENTS  [§  215b 

when  reversed  generally  for  further  proceedings,!^  an  amend- 
ment may  be  allowed  in  the  discretion  of  the  lower  court.  It  is 
the  safer  practice  to  apply  to  the  appellate  court  for  leave  to 
ask  for  the  amendment  below.  It  was  held :  that  a  Circuit  Gourt 
of  Appeals  had  no  power,  upon  the  motion  of  the  appellant,  to 
dismiss  an  appeal  and  remand  the  case  to  the  court  below,  with 
directions  to  permit  the  amendment  of  a  pleading  to  insert  facts 
inadvertently  omitted,  when  the  omission  was  not  known  to  the 
appellant  until  after  the  appeal  was  taken.^"''  A  defendant 
cannot  require  the  complainant  to  amend  his  bill.^^ 

16  See  Am.  Bell  Tell.  Co.  v.  U.  S.  18  North    Chicago    St.    K.    Co.    v. 

68  Fed.  542   570.  Chicago    Union    Traction    Co.,    150 

nstrand'v.  Griffith,  C.  C.  A.,  135  Fed.  612. 
Fed.  739. 


CHAPTER  XI IT. 

ABATEMENT,   REVIVOR   AND   SUPPLEMENT   AT   LAW    AND   IN   EQUITY. 

§  216.  Abatement.  If  any  oveiit  liappens  after  the  begrinning 
of  an  action  at  c-onmion  law  or  the  filinj;  of  a  bill  in  equity  which 
makes  it  necessary  to  brinfj  in  a  new  party,  either  plaintiff  or 
defendant,  in  order  to  obtain  a  complete  or  satisfactory  determi- 
nation of  the  controversy;  the  suit  will  either  abate  or  become 
defective.^ 

The  abatement  or  defect  must  be  remedied  by  the  filing  of  a 
bill  of  revivor,  a  bill  in  the  nature  of  a  bill  of  revivor,  a  supple- 
mental bill,  a  bill  in  the  nature  of  a  supplemental  bill,  or  a  bill 
of  revivor  and  supplement.^  or  by  motion  upon  affidavit  without 
such  a  plead ing.3 

An  abatement  takes  place  by  the  death  of  one  of  the  parties, 
or,  where  a  married  woman  is  under  a  disability,  by  the  marriage 
of  a  female  plaintiff.*  An  action  entirely  abates  by  the  death  of 
any  of  the  plaintiffs :  ^  unless  his  interest  therein  wholly  ceases  by 
his  death,^  or  survives  to  another  party  to  the  suit,"^  or  he  has 
been  previously  discharged  by  a  decree  in  an  interpleader  *  suit, 
or  a  suit  in  the  nature  of  an  interpleader ;  when  it  does  not.  For- 
merly a  suit  abated  by  the  marriage  of  a  female  plaintiff;  ^  but  it 
may  be  doubted  whether  this  rule  would  be  followed  where  a 
married   woman   has  the   same   power  over   her  property  as   if 

§216.     IMitford's  PL,  ch.  1,  §  .'i.  6  Daniell's  Ch.   Pr.    (2d  Am.  ed.) 

2Mitford's    PL,    ch.    1,    §3.      See  1698;  Mitford 's  PL,  ch.  1,  §  :5. 

infra,  §  220,  for  proceedings  at  com-  ^  Fallowes  v.  Williamson,  11  Yes. 

nion  law.  •'"^;    Boddy    v.    Kent,    1    Mer.   :i64; 

3Eq.    Eule    45;    Spring    v.    Webb,  Fisher    v.    Rutherford,    Baldw.    188; 

227  Fed.  481;   Ex  paric  Slater,  246  Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1699. 

U.   S.   128,   13.3.     But   see  Eq.   Rule  8  Anon.,  1  Vern.  351;  Jennings  v. 

35;    infra,    §221.  Nugent,    1     Molloy,    134;     Daniell's 

4  Mitford 's  PL,  ch.  1,  §  3.  ("h.  Pr.  (2d  Am.  ed.)  1765. 

5  Mitford  's  PL,  ch.  1,  §  3  ;  Story  's  9  Mitford 's  PL,  ch.  1.  §  3  ;  Story  's 
Eq.  PL,  §  354.  Eq.    PL,   §  354. 

1187 


1188 


ABATEMENT    AND   REVIVOR 


[§216 


she  were  single.^"  By  the  marriage  of  a  female  defendant,  a 
suit  never  abated,  though  her  husband  had  to  be  named  in  all 
subsequent  proceedings. ^^  When  the  husband  of  a  female  plain- 
tiff died,  by  the  former  practice  she  could  at  her  option  continue 
the  suit  without  filing  any  bill  of  revivor;  but  if  she  did  not, 
it  was  considered  abated  and  she  was  not  liable  for  the  costs.^** 
Before  the  hearing  of  a  suit,!^  j^  abates  upon  the  death  of  a  de- 
fendant who  has  appeared  so  far  as  proceedings  against  him  or 
his  interest  are  concerned,  and  if  he  were  an  indispensable  party 
to  a  decree  all  proceedings  must  be  suspended  till  his  representa- 
tives have  been  brought  in.i*  In  a  suit  to  cancel  a  patent  to 
land  upon  the  death  of  the  patentee  intestate  his  heir  becomes 
an  indispensable  party  defendant. ^^  if^  however,  his  interest 
wholly  ceases  by  his  death,  or  wholly  survives  to  one  of  the  other 
parties,  no  revivor  will  be  necessary. ^^  A  suit  abates  by  the 
death  of  a  member  of  a  firm  during  a  suit  against  it.^'  It  has 
been  held  that  the  death  of  a  defendant  before  appearance  does 
not  abate  the  suit ;  for,  according  to  the  former  practice,  till  his 
appearance,  or  a  decree  taken  against  him  jjro  confesso,  there  was 
no  cause  against  him ;  but  a  bill  must  be  filed  against  his  repre- 
sentative, which  was  an  original  bill  as  far  as  respected  this  de- 
fendant, but  a  supplemental  bill  with  respect  to  the  suit."  * 

The  Revised  Statutes  provide:  "When  either  of  the  parties, 
whether  plaintiff,  or  petitioner,  or  defendant,  in  any  suit  in  any 
court  of  the  United  States,  dies  before  final  judgment,  the  execu- 
tor or  administrator  of  such  deceased  party  may,  in  case  the 
cause  of  action  survives  by  law,  prosecute  or  defend  any  such  suit 


lOLorillard  v.  Staiulavfl  Oil  Co., 
2  Fed.  902. 

11  Mitford's  PI.,  eh.  1,  §  .T;  Story's 
Eq.  PI.,  §  354.  A  suit  does  not 
abate  by  the  marriage  of  a  male  de- 
fendant, although  it  affects  real  es- 
tate. Clark  V.  Hall,  7  Paige  (N. 
Y.),  382.  The  coming  of  age  of  an 
infant  party  does  not  abate  the  suit 
or  render  it  defective  unless  his  in- 
terest is  thereby  charged.  Camp- 
bell V.  Browne,  5  Paige  (N.  Y.),  34. 

12  Mitford's  PL,  ch.  1,  §3. 
ISChilds    V.    Ferguson,    C.    C.    A., 

181  Fed.  795. 


14 Story's  Eq.  PI.,  §369;  Wright 
V.  Phipps,  58  Fed.  552. 

15  Wright  Blodgett  &  Co.,  v.  U.  S., 
C.  C.  A.,  203  Fed.  262. 

16  Mitford's  PL,  oh.  1,  §3;  Dan- 
iell's  Ch.  Pr.  (2d  Am.  ed.)  1698, 
1699;   Story's  Eq.  PL,  §  357. 

17  Wilson  V.  Seligman  (U.  S.  C. 
C.  S.  D.  N.  Y.  1880),  10  Rep.  651. 
But  see  U.  S.  R.  S.,  §956,  cited 
infra. 

18  Shadwell,  V.  C,  in  Crowfoot  v. 
Mander,  9  Sim.  396.  See  U.  S.  v. 
Fields,  4  Blatchf.  326. 


§21 6 1  ABATEMENT  Hi^" 

to  final  jiulgme7it.    The  defendant  shall  answer  accordingly  ;  and 
the  court  shall  hear  and  determine  the  cause  and  render  judg- 
ment for  or  against  the  executor  or  administrator,  as  the  case  may 
require.  And  if  sucii  executor  or  administrator,  having  been  duly 
served  with  a  scire  facias  fnmi  the  office  of  the  clerk  of  lli»'  eourt 
where  the  suit  is  depending,  twenty  days  Ijcforehand,  neglects  or 
ref\ises  to  become  party  to  the  suit,  the  court  may  render  judg- 
ment against  the  estate  of  the  deceased  party,  in  the  same  man- 
ner as  if  the  executor  or  administrator  had  voluntarily  made 
himself  a  party.     TIk'  executor  or  administrator  who  becomes 
a  party  as  aforesaid,  shall,  upon  motion  to  the  court.  l)e  entitled 
to  a  continuance  of  the  suit  until  the  next  term  of  said  court."  ^^ 
"If  there  are  two  or  more  plaintiffs  or  defendants,  in  a  suit 
where  the  cause  of  action  survives  to  the  surviving  plaintiff  or 
against  surviving  defendant,  and  one  or  more  of  them  dies,  the 
writ  of  action  shall  not  be  thereby  abated;  but,  such  death  being 
suggested  upon  the  record,  the  action  shall  proceed  at  the  suit  of 
the  surviving  plaintiff'  against  the  surviving  defendant."  2®    This 
authorizes  the  continuance  of  a  .suit  in  the  name  of  the  survivor 
of  the  firm  which  brought  the  same  without  joining  the  personal 
representatives  of  those  who  are  dead.^i    A  suit  for  the  infringe- 
ment of  a  trade-mark,  may  thus  proceed  since  that  is  a  tort  for 
which  the  defendants  are  jointly  and  severally  liable.22     It  has 
been  held  that,  where  one  of  several  obligees  of  a  negotiable  bond 
dies  pending  an  action  to  collect  the  same,  the  action  may  be 
continued  in  the  name  of  the  survivors,  who,  if  they  recover, 
are  entitled  to  the  whole  sum  due  under  the  ol)ligation,  and  upon 
its  receipt  will  hold  that  part  of  the  recovery,  to  which  the  de- 
cedent would  have  been  entitled  had  he  lived,  in  trust  for  the 
representatives  of  the  latter ;  that  the  presence  in  the  action  of 
the  personal  representatives  of  such  deceased  co-obligee  after  his 
deatji  is  erroneous,  but  a  harmless  error;  that  no  formal  order,  of 
revivor  is  necessary  in  such  a  case,  but  that  a  suggestion  of  the 

19  U.  S.  K.  8.,  §95.1,  (0114..  St.  21,Innes  v.  y^cttiiijiill,  24.1  F.'.l. 
§  1592.                                                 •      '  269. 

20  U.  S.  R.  S.,  §  956,  ('oni}).  St.  22  Northwestern  Coiisol.  Milliui: 
§1953.  This  statute  is  substantially  Co.  r.  William  Callam  &  Son,  177 
a  copy  of  the  act  of  8  &  9  W.  111.,  TV^I.    786. 

fh.   1,   §7.     See  Allen  v.  Fairbanks, 
40  Fed.  188. 

Fed.    Prac.    Vol.    11—5 


1190 


ABATEMENT    AND   REVIVOR 


[§216 


death  of  one  of  the  plaintiffs,  made  upon  the  record  by  either 
the  plaintiffs  or  defendants,  is  sufficient;  and  that  the  Circuit 
Court  of  Appeals,  when  reversing  a  judgment  in  favor  of  a  sur- 
viving plaintiff  and  the  representatives  of  the  other,  may  direct 
that,  upon  the  making  of  the  proper  suggestion  and  the  striking 
out  of  the  names  of  the  personal  representatives,  a  new  judgment 
be  entered  in  favor  of  the  remaining  plaintiffs,  as  they  then 
appear  of  record,  for  the  amount  of  the  principal  with  interest.^^ 

These  statutes  apply  to  writs  of  error  ^4  and  appeals.^^  These 
statutes  do  not  apply  to  real  actions.^^  Real  actions  cannot  be 
revived,^'  unless  the  State  statute  so  provides.^^ 

Independently  of  statute  a  suit  to  enjoin  an  official  act  abates 
when  the  defendant  ceases  to  be  a  public  officer,  and  cannot  ordi- 
narily be  revived  against  his  successor. ^^  The  only  exceptions  to 
this  rule  are  boards  and  bodies  of  a  quasi  corporate  character 
having  a  continuous  existence.^" 

The  Act  of  February  8th,  1899  provides:  "No  suit,  action, 
or  other  proceeding  lawfully  commenced  by  or  against  the  head 
of  any  Department  or  Bureau  or  other  officer  of  the  United 
States  in  his  official  capacity,  or  in  relation  to  the  discharge  of 
his  official  duties,  shall  abate  by  reason  of  his  death,  or  the  ex- 
piration of  his  term  of  office,  or  his  retirement,  or  resignation, 
or  removal  from  office,  but,  in  such  event,  the  court,  on  motion 
or  supplemental  petition  filed,  at  any  time  within  twelve  months 
thereafter,  showing  a  necessity  for  the  survival  thereof  to  obtain 
a  settlement  of  the  questions  involved,  may  allow  the  same  to  be 
maintained  by  or  against  his  successor  in  office,  and  the  court 
ma}'  make  such  order  as  shall  be  equitable  for  the  payment  of 
costs.  "31 


23  Thomas  v.  Green  County,  C.  C. 
A.,  159  Fed.  339. 

24McKinney  v.  Carroll,  12  Pet. 
66,  9  L.  ed.  1002;  Classe  v.  Eippon, 
1  B.  &  Aid.  586. 

26  Moses  V.  Wooster,  115  U.  S. 
285,  29  L.  ed.  391, 

26  Macker  v.  Thomas,  7  Wheat. 
530,  5  L.  ed.  515;  Green  v.  Watkins, 
6  Wheat.  260,  5  L.  ed.  256. 

27  Macker  v.  Thomas,  7  Wheat. 
530,  29   L.   ed.   391;   Green  v.   Wat- 


kins,   6   Wheat.   260,   5   L.   ed.   256. 

28  McArthur  v.  Williamson,  45 
Fed.  154;  U.  S.  v.  Boutwell,  17  Wall. 
604. 

29  Warner  V.  S.  Co.  v.  Smith,  165 
U.  S.  28,  41  L.  ed.  621;  State  of 
Florida  v.  Croom,  226  U.  S.  309, 
57  L.  ed.  — ;  Pullman  Co.  v.  Croom, 
231  U.  S.  571. 

30  Marshall  v.  Dye,  231  U.  S.  250. 

31  Act  of  February  8th,  1899,  30 
St.  at  L.  822. 


§216] 


ABATEMENT 


1191 


This  statute  does  not  apply  to  suits  against  State  officers  such 
as  a  suit  for  an  injunction.^^  The  joinder  of  other  officers  against 
whom  no  injunction  was  asked  did  not  give  the  court  jurisdic- 
tion of  an  appeal  from  an  order  denying  this  relief."  A  con- 
sent to  a  continuance  of  the  case  against  the  successor  of  the  de- 
fendant who  had  died  was  disregarded  by  the  court.'*  Where 
the  application  was  granted  by  a  judgment  or  final  order  before 
the  death  or  expiration  of  the  official  term  the  rule  is  otherwise.'** 

A  suit  cannot  be  revived  by  or  against  a  foreign  executor  who 
is  not  authorized  to  sue  or  be  sued  in  the  forum. '^ 

If  the  cause  of  action  be  one  created  by  a  Federal  statute,  its 
survival  or  abatement  is  not  affected  by  State  statutes  or  deci- 
sions.'"^  The  State  statute,  which  requires  a  claim  to  be  pre- 
sented to  an  administrator  before  revivor  does  not  apply  to  an 
action  upon  a  bond  given  to  the  United  States.'* 

A  qui  tarn  action  to  recover  a  penalty  under  a  statute  of  the 
United  States  abates  by  the  death  of  the  defendant,  and  cannot 
be  revived,  although  the  statutes  of  the  State  where  the  case  is 
pending  authorize  the  revivor  of  actions  to  recover  penalties.'® 
It  has  been  held  that  so  does  an  action  to  recover  triple  damages 
under  the  Anti-Trust  Act  of  July  2,  1890.*°  But  that  upon  the 
death  of  an  individual,  or  the  dissolution  of  a  corporation,  plain- 
tiff, such  a  suit  may  be  revived  by  the  personal  representatives  or 
successor  as  the  case  may  be."  An  action  to  recover  damages  for 
a  violation  of  the  Interstate  Commerce  Act "  or  by  a  receiver  of 
a  National  Bank  against  directors  to  recover  damages  for  their 
negligent  management  of  its  affairs*'  may  be  revived  by  the 

38  Pond  V.  U.  S.,  C.  C.  A.,  Ill 
Fed.  989,  49  C.  C.  A.  582. 

39  Schreiber  v.  Sharpless,  110  U. 
S.  76,  28  L.  ed.  65. 

40  Caillouet  v.  Am.  Sugar  Refin- 
ing Co.,  250  Fed.  639.  Contra,  Im- 
perial Film  Exch.  v.  General  Film 
Co.,  244  Fed.  985. 

41  Imperial  Film  Exch.  v.  General 
Film  Co.,  244  Fed.  985. 

42  Act  of  Feb.  4,  1887,  ch.  104, 
§9,  24  Stat.  382  (U.  S.  Comp.  St. 
1901,  p.  3159).  Minds  v.  Penn.  R. 
Co.,  237  Fed.  267. 

43  Bates  v.  Dresser,  229  Fed.  772. 


82  Pullman  Co.  v.  Croom,  231  U. 
S.  571;  p.  739  A.;  Pullman  Co.  v. 
Knott,  243  U.  S.  447. 

33  Ibid. 

34  Ibid. 
36  New  Orleans  v.   Citizens  Bank, 

167  IT.  S.  371,  388. 

36  C.  F.  Stromeyer  Co.  v.  Aid- 
rich,  227  Fed.  960. 

37  Si'lireiber  v.  Sharpless,  110  U. 
S.  76,  28  L.  ed.  65;  Patton  v.  Brady, 
184  U.  S.  608,  612,  46  L.  ed.  713, 
716;  Iron  Gate  Bank  v.  Brady,  184 
U.  S.  665,  46  L.  ed.  739;  May  v. 
Logan  County,   30   Fed.   250. 


1192 


ABATEMENT    AND    REVIVOR 


[§216 


plaintiff's  executors  or  administrators**  or  against  the  defend- 
ant 's  personal  representatives.*^  Such  a  suit  does  not  abate  by  a 
judicial  sale  of  the  plaintiff's  property.*^  An  action  to  enforce 
a  forfeiture  abates  unless  the  acts  complained  of  were  divisible 
and  the  wrongdoer's  estate  has  derived  a  benefit  therefrom.*''' 
It  has  been  held  that  a  judgment  of  conviction  which  imposes 
a  fine,  abates  upon  the  defendant's  death  and  is  not  enforceable 
against  his  personal  representatives.*^  An  action  for  the  in- 
fringement of  a  patent  survives  to  the  representatives  of  the 
pateaitee,*®  and  against  the  representatives  of  the  infringer-^** 
It  has  been  held  that  the  death  of  a  sole  defendant  to  a  suit  for 
an  injunction  against  the  infringement  of  a  patent  and  for  an 
accounting,  when  it  occurs  before  a  decree  for  an  account, 
abates  and  terminates  so  much  of  the  suit  as  seeks  an  injunc- 
tion, so  that  it  cannot  be  revived  against  his  executor,  unless  it 
be  shown  that  the  latter  continues  the  infringement;^^  but  that 
the  suit  may  be  continued  against  the  personal  representative 
for  an  accounting  of  profits  and  for  damages.^^  After  an  inter- 
locutory decree  for  an  accounting,  such  a  suit  may  be  revived 
against  the  personal  representatives  of  the  deceased  defend- 
ant.63 

The  survivability  of  a  cause  of  action,  if  it  be  one  arising  un- 
der the  statutes  or,  it  seems,  the  common  law,  of  the  State  where 
the  case  is  pending,  depends  upon  the  law  of  that  State ;  5*  ex- 


44  Langdou  v.  Pennsylvania  E. 
Co.,  194  Fed.  486. 

45  Bates  V.  Dresser,  229  Fed.  772. 

46  Pennsj'lvaiiia  R.  Co.  v.  Interna- 
tional Coal  Mining  Co.,  C.  C.  A., 
173  Fed.  1. 

47  U.  S.  V.  De  Ooer,  38  Fed.  80 ; 
IT.  S.  V.  Riley,  104  Fed.  275. 

48  U.  S.  V.  Pomeroy,  1.52  Fed.  279. 

49  May  v.  Logan  County,  30  Fed. 
250;  Illinois  Cent.  R.  Co.  v.  Turrill, 
110  U.  S.  301,  28  L.  ed.  154. 

50  Ibid.;  Head  v.  Porter,  70  Fed. 
498;  Hohorst  v.  Howard,  37  Fed. 
97;  Moses  v.  Wooster,  115  U.  S. 
285,  29  L.  ed.  391. 

51  Drajier  v.  Hudson,  1  Holnios, 
208;   Walker  on  Patents,  §  700. 


52  Kirk  v.  Du  Bois,  28  Fed.  460 ; 
Hohorst  V.  Howard,  37  Fed.  97; 
Lake  Superior  I.  Co.  v.  Brown,  B. 
&  Co.,  44  Fed.  539;  Head  v.  Porter, 
70  Fed.  498;  Atterbury  v.  Gill,  13 
Off.  Gaz.  276;  Smith  v.  Baker,  1 
Ban.  &  A.  117;  Childs  v.  Ferguson, 
C.  C.   A.,   181   Fed.   795. 

53  Atterbury  v.  Gill,  13  Off.  Gaz. 
276. 

54  Warren  v.  Furstenheim,  35  Fed. 
691;  Witters  v.  Foster,  26  Fed.  737; 
Honshaw  v.  Miller,  17  How.  212,  15 
L.  ed.  222;  Hattield  v.  Bushnell,  1 
Blatc-hf.  393;  Trigg  v.  Conway, 
Henipst.  711;  Martin  v.  Wahash  R. 
Co..  C.  C.  A.,  142  Fed.  650. 


§216 


ABATEMENT 


iv.y.i 


cept,  perhaps,  when  it  is  originally  brought  in  the  Federal 
court  and  arises  under  some  rule  of  general  law,  recognized  in 
the  courts  of  the  Union."  If  the  action  is  transitory  in  its 
nature,  the  survival  of  the  right  to  sue  depends  upon  the  law 
of  the  State  where  the  suit  is  brought;  not  upon  that  where 
the  cause  of  action  arose. ^^  A  State  statute  which  allows  an 
executor  or  administrator  to  revive  an  action  for  personal  in- 
juries will  be  followed,  as  the  law  of  the  forum,  by  the  Fed- 
eral courts  there  held,  although  there" was  no  such  statute  where 
the  accident  occurred."  A  State  statute  was  followed  which 
permitted  an  administrator  duly  appointed  and  qualitled  to  be 
substituted  as  plaintitf  in  a  suit  brought  by  a  person  claiming 
to  be  the  personal  representative  of  the  same  decedent  who  had 
never  qualified  as  such.^^ 

Unless  there  be  some  clause  in  its  charter  to  the  contrary,  a  suit 
bj'  or  against  a  corporation  ordinarily  abates  by  the  dissolution 
of  the  corporation ;  ^9  hut  it  has  been  held  that  the  entrance  into 
liquidation  and  the  closing  of  a  business  of  a  national  banking 
association  does  not  abate  a  suit  brought  in  its  name.^">  When 
upon  its  dissolution  a  State  court  appointed  a  trustee  of  the  cor- 
porate assets  his  substitution  as  plaintiff  was  permitted.^^  A 
State  statute  which  provided  that  a  suit  against  a  corporation 
shall  not  abate  upon  the  dissolution  of  the  defendant  was  held 
not  to  apply  to  a  foreign  corporation;  and  a  judgment  of  the 
State  court  in  such  a  case  was  held  by  the  Federal  court  to  be 


55  Baltimore  &  O.  K.  K.  Co.  v. 
Joy,  17:5  r.  S.  226,  229,  id  L.  cd. 
G77,  678. 

56  Martin  v.  Wabash  R.  Co.,  C.  C. 
A.,  142  Fed.  650.  Contra,  Strat- 
toii 's  IiulP])ondcnee,  L 'd  v.  Dines, 
12fi  Fed.  968. 

57  Baltimore  &  O.  W.  Co.  \.  Joy, 
]T.\  V.  S.  226,  43  L.  ed.  677. 

68  Person  v.  Fidelity  &  Cas.  Co., 
C.  C.  A.,  92  Fed.  965. 

59  National  Bank  v.  Colby,  21 
Wall.  609,  22  L.  ed.  687;  Greeley 
V.  Smith,  3  Story,  658;  Mumma  v. 
I'otomac  Co.,  8  F'et.  281,  22  L.  ed. 
687.     But   see   Lake   Siip.    I.   Co.   v. 


Brown,  B.  &  Co.,  44  Fed.  5;!9.  As  to 
municipal  corporations,  Hemingway 
V.  Stansell,  106  U.  S.  399,  27  L.  ed. 
245;Grantland  v.  Memphis,  12  Fed. 
287;  as  to  the  effect  of  a  consolida- 
tion of  two  corporations,  Edison  El. 
I..  Co.  V.  Westinghouse,  34  Fed.  232; 
as  to  the  effect  of  a  State  statute 
upon  foreign  corporations,  Marion 
I'hc  siihate  Co.  v.  Perry,  C.  C.  A.,  33 
L.R.A.  252,  74  Fed.  425. 

60  National  Bank  v.  Insurance 
Co..  104  V.  S.  54,  72,  26  L.  ed. 
09.!. 

61  Imperial  Film  Exch.  v.  Gen. 
I'ilin  Co..  244  Fed.  985. 


1194 


ABATEMENT    AND    REVIVOR 


[§217 


void.^2  In  the  absence  of  a  statute  upon  the  subject,  the  appoint- 
ment of  a  receiver  for  a  plaintiff  corporation  does  not  abate  the 
action  and  it  may  proceed  in  the  corporation 's  name ;  ^^  nor  does 
the  appointment  of  a  receiver  of  a  defendant  corporation  abate 
the  suit.64 

It  seems  that  any  step  in  the  cause  taken  by  the  surviv- 
ing party  after  the  death  of  one  or  more  of  his  opponents,  is  a 
waiver  of  his  right  to  object  that  the  case  has  not  been  revived. 
Thus,  after  a  decree  has  been  reversed  upon  appeal,  and  the 
cause  sent  back  with  a  special  mandate  directing  the  further  pro- 
ceedings to  b*e  taken,  or  affirmed  upon  appeal  and  sent  back  with 
a  mandate  directing  its  enforcement,  it  is  too  late  to  claim  for 
the  first  time  that  the  suit  has  abated  by  the  death  of  the  com- 
plainant before  the  entry  of  the  decree  from  which  the  appeal 
was  taken. 65  An  order  denying  a  motion  to  dismiss  an  action 
upon  the  ground  that  it  had  abated  by  the  death  of  the  plaintiff 
is  reviewable  on  a  writ  of  error  to  the  final  judgment. ^^  The 
plaintiff  cannot  describe  his  action  as  in  tort  in  order  to  obtain 
jurisdiction  for  the  Federal  court,  and  then  describe  it  as  in 
contract  in  order  to  prevent  its  abatement.^' 

§217.  Effect  of  abatement.  "An  abatement,  in  the  sense  of 
the  common  law,  is  an  entire  overthrow  or  destruction  of  the  suit, 
so  that  it  is  quashed  and  ended.  But  in  the  sense  of  courts  of 
equity,  an  abatement  signifies  only  a  present  suspension  of  all 
proceedings  in  the  suit,  from  the  want  of  proper  parties  capable 
of  proceeding  therein.  At  the  common  law,  a  suit  when  abated, 
is  absolutely  dead.  But  in  equity,  a  suit,  when  abated,  is  (if 
such  an  expression  be  allowable)  merely  in  a  state  of  suspended 
animation,  and  it  may  be  revived. ' '  ^    Upon  the  total  abatement 


62  Marion  Phosphate  Co.  v.  Perry, 
C.  C.  A.,  3.3  L.R.A.  252,  74  Fed. 
425. 

63  Boston  El.  Ry.  Co.  v.  Paul  Boy- 
ton  Co.,  C.  C.  A.,  211  Fed.  813; 
Delta  Lumber  Co.  v.  Schwarz  "Wheel 
Co.,  218  Fed.  85. 

64  Chemical  Nat.  Bank  v.  Hart- 
ford Deposit  Co.,  161  U.  S.  1,  40 
L.  ed.  595. 

65  Ex  parte  Story,  12  Pet.  339, 
342,  9  L.  ed.  1108,  1110;  Lake  Sup. 


I.  Co.  V.  Brown,  B.  &  Co.,  44  Fed. 
5.39;  McNeil  v.  McNeil,  C.  C.  A... 
170  Fed.  289  (the  argument  of  an 
appeal  by  the  administrator). 

66  Henderson  v.  Henshall,  C.  C. 
A.,  54  Fed.  320. 

67  Iron  Gate  Bank  v.  Brady,  184 
U.  S.  665,  46  L.  ed.  739. 

§217.  1  Story's  Eq.  PL,  §354. 
See  also  Hoxie  v.  Carr,  1  Sumn. 
173,  178;  Melius  v.  Thompson,  1 
Cliff.  125,  129. 


§217 


EFFECT   OF    AHATEMEXT 


11*J5 


of  a  suit  the  cause  is  completely  suspended  while  the  abatement 
continues;  and,  in  general,  all  orders  made  pending  such  abate- 
ment will  be  considered  nugatory  and  may  be  discharged.^  Ap- 
plications may,  however,  be  made  b}'  parties  affected  thereby,  to 
discharge  process  of  contempt  issued  or  executed  pending  the 
statement.^  Applications  have,  moreover,  been  granted  during 
an  abatement  for  the  payment  of  money  out  of  court,  when  the 
right  thereto  had  been  previously  established ;  *  for  the  preserva- 
tion of  the  property  in  dispute ;  ^  for  the  punishment  of  a  party 
for  breach  of  an  injunction ;  ^  and  to  set  aside  irregular  proceed- 
ings pending  the  abatement^  So,  too,  a  decree  previously  made 
could  be  enrolled ;  ^  and  it  has  been  held  in  England  that  deposi- 
tions might  be  taken  under  a  commission  previously  issued.* 

Orders  previously  made  continue  in  force  until  discharged.^" 
But  the  time  given  a  party  within  which  to  do  a  certain  act  is 
always  suspended  by  an  abatement. ^^  Where  a  preliminary  in- 
junction has  been  previously  granted,  the  court  may  issue  an 
order  requiring  that  the  representatives  of  a  deceased  plaintiff 
revive  within  a  certain  time,  usually  a  fortnight  after  notice,  or 
that  the  injunction  be  dissolved. ^^  Nq  such  order  will  be  granted 
after  a  decree  for  a  perpetual  injunction;  for  that  "would  be  in 
effect  decreeing  a  perpetual  suit. ' '  ^^  The  power  of  the  court  to 
make  an  order  that  the  representative  of  a  deceased  plaintiff 
revive  within  a  certain  limited  time  after  notice  to  them,  or  that 
the  bill  be  dismissed,  is  doubtful. i* 


2Danieirs  Ch.  Pr.  (2d  Am.  ed.) 
1714;  Griswold  v.  Hill,  1  Paine,  483. 

3Danieirs  Ch.  Pr.  (2d  Am.  ed.) 
1715. 

4  Finch  v.  Lord  Winchelsea,  1  Eq. 
Cas.  Abr.  2;  Eoundell  v.  Curror,  6 
Ves.  250;  Daniell's  Ch.  Pr.  (2d  Am. 
ed.)  1715.  See  Wharam  v.  Brough- 
ton,  1  Ves.  Sr.  185. 

5  Washington  Ins.  Co.  v.  Slee,  2 
Paige  (N.  Y.)  865,  368. 

6  Hawley  v.  Bennett,  4  Paige  (N. 
Y.)   163. 

1  Quackenbush  v.  Leonard  10 
Paige   (N.  Y.)   131. 

8  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1715. 


9  Thompson  v.  Took  1  Dick.  115; 
Peters  v.  Eobinson,  1  Dick.  116; 
Sinclair  v.  James,  1  Dick.  277. 

10  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1716;  Lee  v.  Lee,  1  Hare,  622;  Haw- 
ley V.  Bennett,  4  Paige  (N.  Y.)   163. 

11  Gregson  v.  Oswald  1  Cox,  Eq. 
343. 

12  Jones  V.  Massey  Brown  v.  War- 
ner, Turner  v.  Cole,  all  quoted  in 
Chowiek  V.  Dimes,  3  Beav.  290,  292, 
293;  Chester  v.  Life  Ass'n  of  Amer- 
ica 4  Fed.  487. 

13  Askew  V.  Townsend,  2  Dick. 
471. 

14  Comi>aro  dictum  of  Judge  Story 
in  Hoxie  v.  Carr,  1  Sumn.  173,  17S, 


1196 


ABATEMENT    AND    REVIVOR 


[§218 


Where  the  abatement  is  partial,  as  where  it  is  caused  by  the 
death  of  a  defendant,  it  prevents  those  proceedings  only  by  which 
his  interest  may  be  affected.^^  Thus,  if  there  be  a  decree  against 
trustees  and  the  beneficiary  of  their  trust  for  a  conveyance,  and 
the  beneficiary  die,  the  trustees  may  still  be  obliged  to  convey ;  ^^ 
and,  after  the  death  of  one  defendant,  process  of  contempt  may 
be  issued  and  executed  against  the  others.^'''  After  its  abatement 
by  the  death  of  the  owner  of  the  equity  of  redemption,  a  fore- 
closure suit  cannot  be  remanded  before  its  revivor.^*  It  has  also 
been  held  that  the  death  of  a  defendant  after  hearing  but  before 
a  decree  does  not  necessarily  prevent  judgment, ^^  which  should 
then  be  entered  as  of  the  date  of  the  hearing,  nunc  pro  tunc,  and 
that,  if  practicable,  a  decree  made  before  a  defendant 's  death,  for 
example,  a  decree  for  a  sale,  may  be  enforced  without  revivor.^" 
But  where  the  defendant  died  after  his  demurrer  had  been  sus- 
tained and  the  time  of  the  complainant  to  amend  had  expired, 
it  was  held  that  the  court  could  not  without  revivor  render  judg- 
ment of  dismissal  nunc  pro  tunc  as  of  the  day  following  the  ex- 
piration of  the  time  allowed  for  amendment. ^^ 

§  218.  When  a  suit  may  be  revived.  A  suit  which  has  abated 
may  generally  be  revived  when  anything  further  remains  to  be 
done  therein. 1  But  the  old  practice  did  not  permit  a  suit  to  be 
revived  merely  for  costs  which  were  untaxed,  and  had  not  been 
previously  directed  to  be  paid  out  of  a  particular  estate  or  fund, 
nor  decreed  against  an  executor  out  of  assets.^    Nor  can  a  bill  of 


p.iid  the  case  of  Chowick  v.  Dimes, 
:?  Beav.  290  where  Lord  Langdale, 
M.  E.,  granted  such  an  order,  with 
that  of  Lee  v.  Lee,  1  Hare,  617, 
where  Vice-Chancellor  Wigram  hehl 
that  the  court  had  no  power  to 
make   one. 

ISDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1716;  Finch  v.  Lord  Winchelsea,  1 
Eq.  Cas.  Abr.  2. 

16  Finch  v.  Lord  Winchelsea,  1 
Eq.  Cas.  Abr.  2;  Daniell's  Ch.  Pr. 
(2d  Am.  ed.)    1716. 

17  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1716. 

18  Wright  V.  Phipps,  58  Fed.  552. 

19  Davies  v.  Davies,  9  Ves.  461 ; 


Daniell's    Ch.    Pr.     (2d    Am.    ed.) 
1717. 

20  Whiting  V.  Bank  of  V.  S.,  IM 
Pet.  6,  10  L.  ed.  33. 

21  McNeil  V.  McNeil,  C.  C.  A.,  170 
I'ed.  289. 

§  218.  1  Gilbert 's  Forum  Boma- 
inun,  181 ;  Johnson  v.  Peek,  2  Ves. 
Sen.  465;  Fitzpatrick  v.  Domingo, 
14  Fed.  216;  Daniell's  Ch.  Pr.  (2d 
Am.  ed.)  1694.  See  Warner  V.  8. 
Co.  V.  Smith,  165  U.  S.  28,  41  L.  ed. 
621,  and  supra,  §  216. 

2  Daniell's  Ch.  Pr.  (2d.  Am.  ed.) 
1694-1697;  Story's  Eq.  PI,  §371; 
Blower  v.  Morrets,  3  Atk.  772; 
Kemp    V.     Mackrell,    3    Atk.     812; 


§218aj 


i;i-"FKCr    OF    RFVIVOR 


nn? 


revivor  be  brought  upon  a  bill  filed  merely  for  discovery,  after 
the  discovery  required  thereby  has  been  obtained.' 

The  time  within  which  an  action  to  enforce  a  cause  of  action 
at  common  law  not  founded  upon  a  statute  of  the  United  States 
may  be  revived,  depends  upon  the  State  practice*  or  the  State 
Statute  of  Limitations;^  which,  however,  do  not  affect  the 
United  States.^  The  State  Statute  of  Limitations  has  been  held 
to  be  a  bar  to  an  application  to  revive  an  action  by  a  receiver  of  a 
national  banking  association  to  collect  an  assessment  from  a 
stockholdei*.'''  In  ecpiity  the  running  of  the  statute  of  limita- 
tions, State  or  Federal  as  the  case  may  be,  after  the  time  when  a 
person  became  entitled  to  revive,  is  in  most  cases,  except  after  a 
decree  for  an  account,*  a  defense  and  bar  to  a  bill  of  revivor.^ 
A  suit  cannot  be  revived  seven  years  after  its  dismissal  for  a 
defect  of  parties  caused  by  a  failure  to  revive. ^'^ 

§  218a,  Effect  of  revivor.  Where  the  abatement  is  by  the 
death  or  marriage  of  a  plaintifT,  an  order  to  revive  the  suit  places 
it  and  all  proceedings  in  it  in  precisely  "the  same  plight,  state, 
and  condition  that  the  same  were  in  at  the  time  when  the  abate- 
ment took  place.  "1     The  new  plaintiff  may  then  take  the  same 


Travis  v.  Waters,  1  .1.  Ch.    (N.  Y.) 
85. 

SHorsbuig  V.  Baker,  1  Pet.  2;J2, 
7  L.  ed.  125. 

4  Goodyear  Dental  Vulcanite  Co. 
V.  White,  46  Fed.  278. 

5  Browne  v.  Chavez,  181  U.  S.  68, 
45  L.  ed.  752;  Butler  v.  Poole,  44 
Fed.  586;  Barker  v.  Ladd,  3  Sawyer, 
44;  Price  v.  Yates,  19  Alb.  L.  J. 
295;  Goodyear  Dental  V.  Co.  v. 
White,  46  Fed.  278;  Spaeth  v.  Sells, 
177  Fed.  797,  holding  that  under 
Ohio  R.  S.  §§5150,  5157,  the  final 
order  of  revivor  must  be  made  with- 
in one  year  and  that  the  obtaining 
of  the  conditional  order  within  that 
time  is  insufficient. 

eu.   S.   v.   Houston,   48   Fed.   207. 

7  Butler  v.  Poole,  44  Fed.  586. 

8  Hollingshead  's  Case,  1  P.  Wms. 
742;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1711. 


9Danieirs  Ch.  Pr.  (2d  Am.  ed.) 
1710;  Coit  V.  Campbell,  82  N.  Y. 
509;  Perry  v,  Jenkins,  1  Myl.  &  Cr. 
122;  Mason  v.  Hartford,  P.  &  F. 
Ry.  Co.,  19  Fed.  5:5,  56;  Story's  Eq. 
PL,  §  831.  A  bill  of  revivor  was 
stricken  from  tlie  file  when  filed 
twelve  years  after  the  delivery  of 
an  opinion  dismissing  the  original 
bill,  although  no  decree  upon  the 
opinion  was  ever  entereil.  Hubbell 
v.  Laukenan,  63  Fed.  881.  Contra. 
Miller  v.  Wattier,  165  Fe.l.  359. 
See,  also,  Schmertz  Wire-Glass  Co. 
v.  Pittsburgh  Plate-Glass  Co.,  16S 
Fed.  73.  a  suit  to  coniju'l  the  issue 
of  a  patent  when  the  adverse  party 
acquiesced   in  the  bill. 

10  Houth   v.   Owens,   30   Fed.   910. 

§  218a.  1  Gregson  v.  Oswald.  1 
Cox  Eq.  344. 


1198 


ABATEMENT    AND    REVIVOR 


[§219 


proceedings  that  the  original  plaintiff  might  have  done.^  Thus, 
the  new  plaintiff  may  prosecute  process  of  contempt  against  the 
defendant,  taking  it  up  where  it  stood  at  the  abatement;  and 
if  a  process  has  been  previously  issued  it  will  be  revived  with 
the  revivor  of  the  suit.'  But  where  the  abatement  is  caused  by 
the  death  of  a  defendant,  "the  process,  being  personal,  cannot 
be  revived. "  ^  In  general,  however,  an  order  to  revive  against 
the  representatives  of  a  deceased  defendant,  will  place  the  suit  as 
fully  in  the  same  position  with  regard  to  such  representatives 
as  can  be  done  with  reference  to  the  change  of  the  individuals 
before  the  court. ^  After  revivor  testimony  previously  taken  can 
be  used.^ 

§  219.  Who  may  revive  a  suit.  It  is  generally  necessary,  in 
order  to  entitle  one  to  revive,  that  there  should  be  a  privity  in 
representation  between  him  and  the  party  whose  death  caused 
the  abatement.  Therefore,  upon  the  death  of  one  suing  in  a  rep- 
resentative capacity  the  defect  can  usually  be  remedied  only  by 
a  supplemental  bill,  and  not  by  a  bill  of  revivor.^  It  was  held, 
however,  that  upon  the  death  of  an  administrator,  the  adminis- 
trator de  bonis  non  might  file  a  bill  of  revivor,  "though  there  is 
no  actual  privity  between  him  and  the  original  plaintiff. ' '  ^  But 
Judge  Story  suggests  that  a  bill  in  the  nature  of  a  bill  of  revivor 
would  be  more  appropriate.'  It  is  said  by  Lord  Redesda^e  that 
in  the  case  of  a  bill  by  creditors  on  behalf  of  themselves  and  other 
creditors,  any  creditor  may  revive ;  *  but  according  to  Daniell,  in 
practice  the  form  of  a  bill  in  such  a  case  is  that  of  a  supplemen- 
tal bill  in  the  nature  of  a  bill  of  revivor,  and  not  of  a  mere  bill  of 
revivor.^ 


2Vattier  v.  Hinde,  7  Pet.  252, 
266;  Philips  v.  Derbie,  1  Dick.  98; 
Hyde  v.  Forster,  1  Dick.  132;  Dan- 
iell's  Ch.  Pr.   (2d.  Am.  ed.)   1778. 

3  Hyde  v.  Forster,  1  Dick.  132; 
Daniell 's  Ch.  Pr.  (2d  Am.  ed.)  1778. 

4Danieirs  Ch.  Pr.  (2d  Am.  ed.) 
1778. 

SDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1778. 

eVattier  v.  Hinde,  7.  Pet.  252, 
266,  8  L.  ed.  675,  680. 

§219.     IDaniell's     Ch.     Pr.     (2a 


Am.    ed.)     1697;     Story's    Eq.    PI., 
§340. 

2  Daniell 's  Ch.  Pr.  (2d  Am.  cd.) 
1697;  Mitford's  PI.,  ch.  1,  §3; 
Huggins  V.  York  Bldg.  Co.,  2  Eq. 
Cas.  Abr.  3;  Owen  v.  Curzon,  2 
Vern.  237 ;  Newcombe  v.  Murray, 
77  Fed.  492. 

3  Story's  Eq.  PI.,  §  382,  note  4. 
4Mitford's  PL,  eh.   1,   §  3. 
SDaniell's  Ch.  Pr.    (2d   Am.  ed.) 

1703. 


§220] 


REVIVOl{    AT    COMMON    LAW 


1199 


Before  a  decree,  a  suit  can  only  be  revived  by  one  or  all  of  the 
surviving  plaintiffs,  or  the  representatives  of  one  that  has  died.^ 
If  any  of  these  refuse  to  join,  he  must  be  made  a  defendant  to 
the  bill  filed  to  revive  the  suitJ  If  the  suit  concerned  solely  the 
real  estate  of  a  deceased  plaintiff',  his  heirs  alone  are  entitled  to 
represent  him  therein ;  ^  if  solelj'  his  personal  estate,  his  executor 
or  administrator;*  if  both,  separate  bills  of  revivor  may  be  filed 
by  his  heirs  and  personal  representatives,  and  the  neglect  of  one 
to  revive  will  not  prejudice  the  other.^** 

In  the  case  of  a  suit  by  a  corporation  sole,  the  death  of  the 
plaintiff,  if  he  were  entitled  to  the  subject-matter  for  his  own 
benefit,  caused  an  abatement ;  and  the  suit  could  be  revived  by 
his  personal  representative.^^  If,  however,  he  were  only  entitled 
to  the  subject-matter  in  his  corporate  capacity,  the  suit  became 
defective,  and  could  only  be  continued  by  his  successor  by  means 
of  an  original  bill  in  the  nature  of  a  supplemental  bill.^^  AYhere 
a  corporation  had,  by  purchase  at  a  foreclosure  sale,  succeeded 
to  the  rights  of  one  that  was  defunct,  it  was  held  that  it  could  not 
by  a  bill  of  revivor  take  the  benefit  of  a  suit  by  the  stockholders 
of  the  defunct  corporation,  to  which  the  mortgagee  had  not  been 
a  party. ^^  After  a  decree,  a  suit  may  be  revived  by  any  defend- 
ant, or  by  the  representative  of  any  deceased  defendant,  who  has 
acquired  any  right  thereunder,  as  well  as  by  any  plaintiff'.^* 

§220.  Manner  of  revivor  at  common  law.  "When  either  of 
the  parties,  whether  plaintiff,  or  petitioner,  or  defendant,  in  any 
suit  in  any  court  of  the  United  States,  dies  before  final  judgment, 
the  executor  or  administrator  of  such  deceased  party  may,  in 


eDaniell's  Ch.  Pr.  (2d  Am.  eil.) 
1700;  Chester  v.  Life  Ass 'u  of 
America,  4  Fed.  487. 

TDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1700;  Fallowes  v.  Williamson,  11 
Ves.  309. 

SMitford's  Eq.  PI.,  ch.  1,  §3; 
Ferrers  v.  Cherry,  1  Eq.  Cas.  Abr. 
?.,  4;  Melius  v.  Thompson,  1  Cliff. 
125. 

9Mitford's  PI.,  ch.  1,  §3;  Melius 
V.  Thompson,  1  Cliff.  125;  Ferrers 
V.  Cherry,  1  Eq.  Cas.  Abr.  3,  4. 

lOMitford's  PI.,  ch.  1,  §3; 
Story's    Eq.    PI.,    §367;    Melius    v. 


Thompson,  1  Cliff.  125;  Ferrers  v. 
Cherry,  1  Eq.  Cas.  Abr.  3,  4. 

llDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
28,  1701 ;  1  Kyd  on  Corporations. 
77. 

12Danieirs  Ch.  Pr.  (2d  Am.  ed.^ 
28,  1701;  2  Bac.  Abr..  Corporation. 
E.  2. 

13  Keokuk  &  W.  R.  Co.  v.  Scot- 
land County,  152  U.  S.  318,  38  L. 
ed.   457. 

14  Williams  v.  Cooke,  10  Ves.  40G; 
Dovaynos  v.  Morris,  1  Myl.  &  Cr. 
213,  225. 


1200  ABATEMENT    AND    REVIVOR  [§  220 

case  the  cause  of  action  survives  by  law,  prosecute  or  defend 
any  such  suit  to  final  judgment.  The  defendant  shall  answer 
accordingly ;  and  the  court  shall  hear  and  determine  the  cause 
and  render  judgment  for  or  against  the  executor  or  administra- 
tor, as  the  case  may  require.  And  if  such  executor  or  adminis- 
trator, having  been  duly  served  with  a  scire  facias  from  the  office 
of  the  clerk  of  the  court  where  the  suit  is  depending  twenty 
days  beforehand,  neglects  or  refuses  to  become  party  to  the  suit, 
the  court  maj-  render  judgment  against  the  estate  of  the  deceased 
party,  in  the  same  manner  as  if  the  executor  or  administrator 
had  voluntarily  made  himself  a  party.  The  executor  or  adminis- 
trator who  becomes  a  party  as  aforesaid,  shall,  upon  motion  to 
the  court,  be  entitled  to  a  continuance  of  the  suit  until  the  next 
term  of  said  court."  ^  It  has  been  held  that  this  statute  is  con- 
fined to  personal  actions  and  not  to  real  actions,^  nor  to  proceed- 
ings in  bankruptcy,^  which  may  be  revived  in  a  more  summary 
manner  than  that  provided  by  the  statute  or  by  the  Equity 
Rules.*  The  writ  to  collect  a  judgment  of  the  Federal  court 
when  issued  against  the  representatives  of  one  of  the  original 
parties,  or  against  the  indorser  of  a  wa'it,  is  a  continuance  of 
the  original  action,^  and  an  ancillary  proceeding  which  can  be 
maintained  irrespective  of  the  citizenship  of  the  parties  or  the 
amount  in  controversy.^  As  a  general  rule  the  practice  of  the 
State  where  the  proceedings  is  taken  will  be  followed  in  the  issue 
of  and  proceedings  upon  writs  of  scire  facias,''  but,  it  has  been 
held,  that  a  Federal  court  is  not  bound  to  follow  the  methods  pre- 
scribed by  the  State  statutes  for  serving  a  writ  of  scire  facias  to 
revive  a  judgment  against  a  nonresident  defendant ;  and  that  it 
may  revive  its  own  judgment  by  such  a  writ  and  prescribe  a 
reasonable  method  for  the  service  thereof  without  the  district, 

§220.     lU.   S.   R.    S.,    §95.      Seo  Craiu-h,  183,  187,  :]  L.  ed.  193,  194; 

Allen  V.  Fairbanks,  40  Fed.  188.  Davis  v.  Davis,   C.   C.  A.,   174   Fed. 

2  Macker  's    Heirs    v.    Thomas,    7  786. 
Wheaton,  .530,  5  L.  ed.  515.  6  Pullman 's     Palace     Car     Co.     v. 

SShute  v.  Patterson,  C.  C.  A.,  147  Washburn,  66  Fed.  790,  supra,  §21. 
Fed.  509,  512.  7  McKnight  v.  Craig 's  Adm  'rs,  6 

4Shute  V.  Patterson,  C.  C.  A.,  147  Cranch,  183,  187,  3  L.  ed.  193,  194; 

Fed.  509,  512.    Citing  General  Order  Walden   v.  Craig,   14   Pet.   147,   151, 

in   Bankruptcy,   37.  10   L.   ed.  393,   395;    Keuosha  &   R. 

5  McKnight  v.   Craig's  Adm 'rs,  6  R.  Co.  v.   Sperry,  3  Biss.  309, 


§2201 


HKVlVdK    AT    COMMON     l.AW 


1201 


where  the  jud^ineiit  debtor  has  departed  from  the  same.* 
Whetlier  an  aetion  upon  the  judgment  thus  revived  will,  in  such 
a  ease,  be  entertained  in  a  court  in  another  State  or  district, 
where  the  debtor  resided  at  the  time  of  tlie  i-evivor  i-?,  under  the 
authorities,  a  doubtful  question.^ 

It  has  been  lieUl:  that  in  a  scirt  facids  to  review  a  judgment 
in  ejectment,  the  statement  that  the  term  recovered  is  yet  un- 
expired is  sufficient;  and  that  there  is  no  need  of  stating  in 
the  writ  the  tei'in  as  laid  in  the  declaration,  nor  the  facts  which 
show  its  continuance ;  1°  liiat  to  a  scirf  facias  to  i-evive  a  judg- 
ment in  ejectment  it  is  not  necessary  to  make  the  executor  or 
administrator  of  the  deceased  defendants  parties,  but  that  the 
judgment  must  be  revived  against  the  heirs  of  the  defendant 
in  ejectment  and  the  terretcnants ;  "  and  that  after  a  convey- 
ance by  the  lessor  of  the  plaintitf  in  ejectment  to  a  third  per- 
son of  land  for  which  judgment  has  been  obtained,  a  scire  facias 
or  writ  of  hahere  facias  must  issue  in  the  name  of  the  original 
plaintiff  in  the  original  judgment.^"  n^^  a  .st//t  facia<i  to  re- 
vive a  judgment  in  ejectment,  for  the  term  and  damages,  the 
defendant  cannot  plead  a  conveyance  by  the  lessor  of  the  plain- 
tiff, made  subsequent  to  the  judgment. i3  Upon  a  writ  of  scire 
facias  to  revive  an  action  or  a  judgment  against  the  personal 
representative  of  a  deceased  defendant,  such  personal  represen- 


8  Collins  County  Nat.  Bank  v. 
Iluohes,  C.  C.  A.,  135  Fed.  389. 

9  Collins  County  Nat.  Bank  v. 
Hughes,  C.  C.  A.,  1.55  Fed.  389,  393, 
394.  Citing  Owens  v.  Henvy,  161 
U.  S.  642,  40  L.  ed.  837;  Bickcrdike 
V.  Allen,  157  111.  95,  41  N.  E.  740, 
29  L.R.A.  782 ;  Weaver  v.  Boggs,  38 
Maryland,  255.  Where  the  non- 
lesidence  of  the  defendant  in  the 
State  where  the  judgment  was  re- 
vived does  not  api^enr  in  the  reeord 
a  declaration  thereupon  in  a  Fed- 
eral court  in  another  State  is  not 
demurrable.  Davis  v.  Davis,  C.  C. 
A.,  174  Fed.  786. 

10  Lessee  of  Walden  v.  Craig's 
Heirs,  14  Pet.  147,  151,  10  L.  ed. 
393,  395. 


11  Lessee  of  Walden  v.  Craig's 
Heirs,  14  Pet.  147,  10  L.  ed.  393. 

ISPenn  v.  Klyne,  Pet.  C.  C.  446. 
Under  the  practice  in  Missouri,  a 
writ  of  scire  f arias  to  revive  a  judg- 
ment which  has  been  assigned  is  not 
demurrable  because  issued  in  the 
name  of  the  assignor;  but  it  is  suffi- 
cient if  the  writ  shows  that  it  was 
is^sued  on  behalf  of,  and  to  the  use 
of,  the  assignee,  and  permission  may 
be  given  to  amend  the  writ  by  strik- 
ing out  the  name  of  the  assignor. 
Wonderly  v.  Lafayette  County,  74 
Fed.  702. 

13Penn  v.  Klyne,  Pet.  C.  C.-446. 


1202  ABATEMENT    AND   REVIVOR  [§  221 

tative  can  only  plead  what  the  decedent  could  have  pleaded,^* 
unless  there  be  some  matter  which  there  was  no  opportunity  to 
plead  in  the  original  action.^*  Upon  a  scire  facias  to  revive  a 
final  or  interlocutory  judgment,  the  defendant  cannot  avail 
himself  of  matters  of  defense  which  occurred  previous  to  the 
original  judgment ;  ^^  nor  plead  a  general  denial.^'  A  payment 
which  might  have  been  pleaded  to  the  original  scire  facias  to 
revive  a  judgment  cannot  be  given  in  evidence  on  a  second  scire 
facias.^^  If  an  heir  sells  after  judgment  against  the  executor 
upon  the  plea  of  plene  admin istravit  found  for  him,  and  before 
scire  facias  against  the  heir,  the  purchaser  may,  in  the  name 
of  the  heir,  plead  to  the  writ  assets  in  the  hands  of  the 
executor.^*  The  writ  of  scire  facias  was  issued  to  revive  and 
obtain  execution  against  the  taxing  district  of  Shelby  county, 
which  was  the  successor  of  the  city  of  Memphis,  on  a  judgment 
recovered  against  the  city  of  Memphis  before  the  repeal  of  its 
charter.^"  In  that  case,  the  order  upon  the  return  of  the  scire 
facias  awarded  execution  for  the  amount  of  the  original  judg- 
ment, and  simple  interest,  "which  is,  however,  to  be  calculated 
in  the  marshal 's  office  on  the  execution  as  in  all  cases. ' '  ^^ 

§  221.  Manner  of  revivor  in  equity  in  general.  When  a  suit 
became  abated  after  a  decree  signed  and  enrolled,  it  was  an- 
ciently the  practice  to  revive  the  decree  by  a  subpoena  in  the 
nature  of  a  scire  facias,  upon  the  return  of  which  the  party  to 
whom  it  was  directed  might  show  cause  against  the  reviving 
of  the  decree,  by  insisting  that  he  was  not  bound  by  the  decree, 
or  that  for  some  other  reason  it  ought  not  to  be  enforced  against 
him,  or  that  the  person  suing  the  subpoena  was  not  entitled  to 
the  benefit  of  the  decree.  If  the  opinion  of  the  court  was  in  his 
favor  he  was  dismissed  with  costs.    If  it  was  against  him,  or  if 

14MeKnight  v.  Craig's  Adm 'rs,  6  17  Wonderly   v.  Lafayette  County, 

Cranch,  183,  187,  3  L.  ed.  193,  194;  77  Fed.  665. 

Morsell  v.  Hall,  13  How.  212,  14  L.  18  Hatch   v.   Eustis,    1    Gall.    160 ; 

ed.  117;  Allen  V.  Fairbanks,  40  Fed.  Wilson    v.    Hurst,    Pet.    C.    C.    441; 

188.  Wilson  v.  Watson,  Pet.  C.  C.  269. 

15  Hatch  V.  Eustis,  1  Gall.  160.  19  Hamilton    v.    Jones,    2    Hayw. 

16  U.   S.  V.   Thompson,   Glip.   614;  291. 

Morsell   v.    Hall,    13    How.    212,    14  20  Grantland  v.  Memphis,  12  Fed. 

L.    ed.    117;    McKnight    v.    Craig's  287. 

Adm'rs,  6  Cranch,  183,  3  L.  ed.  193;  21  Ibid. 
Pennock  v.  Gilleland,  1  Pittsb.  37. 


§  221]  MANNER   OF    REVIVOR    IN    EQUITY    IN    GENERAL  1203 

he  did  not  oppose  the  reviving  of  the  decree,  interrogatories 
were  exhibited  for  his  examination  touching  any  matter  neces- 
sary to  the  proceedings.  If  he  opposed  the  reviving  of  the  de- 
cree on  the  ground  of  facts  which  were  disputed,  he  was  also 
to  be  examined  upon  interrogatories,  to  which  he  might  answer 
or  plead ;  and  issue  being  joined,  and  witnesses  examined,  the 
matter  was  finally  heard  and  determined  by  the  court.  But  if 
there  had  been  any  proceeding  subsequent  to  the  decree,  this 
process  was  ineffectual,  as  it  revived  the  decree  only,  and  the 
subsequent  proceedings  could  not  be  revived  but  by  bill,  and 
the  enrollment  of  decrees  being  disused,  it  became  the  practice 
to  revive  in  all  cases  indiscriminately  by  bill.^ 

The  regular  methods  of  reviving  a  suit  in  equity  in  the  Fed- 
eral courts  have  been  by  a  bill  of  revivor,  a  bill  in  the  nature  of  a 
bill  of  revivor,  a  bill  of  revivor  and  supplement,  a  supplemental 
bill  in  the  nature  of  a  bill  of  revivor  and  a  bill  in  the  nature  of 
a  bill  of  revivor.2  The  Equity  Rules  of  1912  provide:  "In  the 
event  of  the  death  of  either  party  the  court  may,  in  a  proper 
case,  upon  motion,  order  the  suit  to  be  revived  by  the  substitu- 
tion of  the  proper  parties.  If  the  successors  or  representatives 
of  the  deceased  party  fail  to  make  such  application  within  a  rea- 
sonable time,  then  any  other  party  may,  on  motion,  apply  for 
such  relief,  and  the  court,  upon  any  such  motion  may  make  the 
necessary  orders  for  notice  to  the  parties  to  be  substituted  and 
for  the  filing  of  such  pleadings  or  amendments  as  may  be  neces- 
sary. ' '  '  This  authorizes  the  revivor  of  a  suit  by  motion  without 
a  bill  of  revivor  or  a  bill  in  the  nature  of  a  bill  of  revivor.*  An- 
other rule  however,  expressly  recognizes  the  continuance  of  bills 
of  revivor.* 

By  the  former  practice,  a  revivor  might  be  made  by  motion 
upon  consent ;  ^  and  it  was  suggested  that  where  one  of  the  sur- 
viving parties  had  sued  out  a  scire  facias,  the  personal  repre- 
sentative of  the  decedent  might  obtain  a  revivor  upon  motion.'' 
When  a  board  of  public  officers  was  abolished  by  statute  and  a 

§221.     IMitford's  Ch.  Pr.,  eh.  1,  ^Ex  parte  Slater,  24fi  V.  S.  128, 

§3.  133;  Spring  v.  Wcbh,  227  Fed.  481. 

2  Quoted    with    npproval    by    Me-  6  Eq.  Rule  .^o;  quoted  infra,  §  22:5. 

Dowell,   J.,    in    Dillard's    Adm 'r.    v.  6  Griswold    v.    Hill,   1    Paine,   48.S. 

Central  Va.  Iron  Co.,  125  Fed.  159.  7  Dillard's  Adm 'r  v.  Central  Vir- 

8  Eq.  Rule  45.  jjinia   Iron   Co.,   125   Fed.   157. 


1204  ABATEMENT    AND    REVIVOR  [§  222 

new  board  substituted  for  it,  it  was  beld,  without  determining 
whether  or  not  a  revivor  was  necessary,  that  the  members  of 
the  new  board  eould  properly  be  made  parties  to  the  suit  by 
means  of  a  bill  of  revivor,^  although  a  supplemental  bill,^  or 
bill  in  the  nature  of  a  supplemental  bill,^"  would  have  seemed 
more  appropriate.  If  a  revivor  is  denied,  the  denial  may  be 
reviewed  upon  appeal. ^^ 

§  222.  Definition  of  bill  of  revivor  and  parties  to  the  same. 
A  bill  of  revivor  is  a  continuance  of  the  original  bill,  when,  by 
death,  some  party  to  it  has  become  incapable  of  prosecuting  or 
defending  a  suit,  or  a  female  plaintiff  has  by  marriage  incapa- 
citated herself  from  suing  alone.^  "Whenever  a  suit  abates  by 
death,  and  the  interest  of  the  person  whose  death  has  caused  the 
abatement  is  transmitted  to  that  representative  Avhich  the  law 
gives  or  ascertains,  as  an  heir-at-law,  executor,  or  administrator ; 
so  that  the  title  cannot  be  disputed,  at  least  in  the  Court  of  Chan- 
cery, but  the  person  in  whom  the  title  is  vested  is  alone  to  be 
ascertained ;  the  suit  may  be  continued  by  bill  of  revivor  merely. 
If  a  suit  abates  by  marriage  of  a  female  plaintiff,  and  no  act  is 
done  to  affect  the  rights  of  the  party  but  the  marriage,  no  title 
can  be  disputed ;  the  person  of  the  husband  is  the  sole  fact  to  be 
ascertained ;  and  therefore  the  suit  may  be  continued  in  this  case 
likewise  by  bill  of  revivor  merely."^  The  persons  who  may  be 
plaintiffs  in  a  bill  of  revivor  have  been  specified  in  a  preceding 
section.3  jf  the  abatement  be  caused  by  the  death  or  marriage 
of  a  plaintiff,  all  previous  defendants  to  the  suit  must  be  made 
parties  to  the  bill  of  revivor;  unless  it  be  filed  after  a  decree, 
when  all  whose  rights  or  duties  have  been  fixed  and  ascertained 
thereby  must  be  joined.*  If  any  of  the  previous  plaintiffs  refuse 
to  join  in  the  continuance  of  the  suit,  they  also  must  be  made 
defendants  to  the  bill  of  revivor.**  If  the  abatement  be  caused 
by  the  death  of  a  defendant,  only  his  heirs  or  personal  repre- 

8  Hemingway  v.  Stansell,  106  U.  §222.  IMitford's  PL,  ch.  1,  §:^; 
S.  ^99,  402,  27  L.  pcL  245.  246.  Soo  Fitzpatriek  v.  Domingo,  14  Fed.  216. 
also  The  Sapphire,  11  Wall.  164,  20           S^fitford's  PI.,  ch.  1,  §  3. 

L.    ed.    127;     Allen    v.    Mayor,    18  3  §  219. 

Blatchf.  239;    s.  c,  7  Fed.  483.  4  Daniell's  Ch.  Pr.    (2d  Am.  ed.) 

9  Infra,  §231.  1703,  1704. 

10  Infra,  §  234.  ^  Finch  v.  Lord  Wiuchelsea,  1  Eq. 
UEx  parte  Slatev,  246  U.  S.  128,       Cas.  Ahr.   2;    Daniell's  Ch.  Pr.    (2d 

1 :;;:-.  Am.  cd.)  1700. 


§22:j]  FKAME    OF    1511. 1.    OK    KEVnou  120.") 

sentatives,  or  both,  according  as  the  suit  aft'eeted  his  interest  iu 
real  or  personal  property,  should  be  made  defendants  to  the  bill 
of  revivor;  ®  unless  the  bill  be  filed  after  a  decree,  when  all  par- 
ties interested  thereunder  should  be  joined."^  There  is  no  need 
of  any  difference  of  citizenship  among  the  ditVercnt  parties  to 
such  a  bill,  provided  that  the  court  had  jurisdiction  of  the  origi- 
nal suit. 8  A  suit  cannot  be  revived  against  foreign  executors 
unless  ancillary  letters  are  taken  out  in  tJie  State  where  the  suit 
is  pending.®  A  l)ill  of  revivor' camiot  be  filed  against  tlie  rep- 
resentatives of  a  defendant  not  served  with  process  under  the 
original  bilL^"  They  can  only  be  brought  in  by  a  bill  in  llie 
nature  of  an  oi-iginal  bill.^^ 

§  223.  Frame  of  bill  of  revivor.  A  bill  of  revivor  must  state 
the  liling  of  the  original  bill,  and  the  several  proceedings  there- 
on, and  the  abatement. 1  But  the  rules  provide:  "It  shall  not 
be  necessary  in  any  bill  of  levivor  or  supplemental  bill  to  set 
forth  any  of  the  statements  in  the  original  suit,  unless  the  spe- 
cial circumstances  of  the  case  uiay  require  it.'"  ^  "It  must  show 
a  title  to  revive,  and  charge  that  the  cause  ought  to  be  re- 
vived, and  stand  in  the  same  condition  with  respect  to  the  par- 
ties in  the  bill  of  revivor  as  it  was  in  with  respect  to  the  parties 
to  the  original  bill  at  the  time  the  abatement  happened;  and 
it  must  pray  that  the  suit  be  revived  accordingly."  ^  Where  a 
decree  has  been  made  reviving  a  former  decree,  a  second  bill 
for  the  same  purpose  properly  seeks  to  revive  the  first  decree  of 
revivor,  and  so,  ipso  facto,  the  original  decree.*  If  a  bill  of 
revivor  seeks  simply  to  revive  the  suit,  it  prays  only  for  a  sub- 
poena to  revive  and  answer.^  This  usually  is  required  only  in 
two  classes  of  cases.  Where  the  bill  is  filed  against  an  executor 
or  administrator,  and  requires  an  admission  of  assets,  the  prayer 
usually  is,  not  only  that  the  suit  may  be  revived,  but  also  that, 
in  case  the  defendant  shall  not  admit  assets  to  answer  the  pur- 

6Bettes    v.    Dana,    2    Sumn.    383;  11  See    infra,    §216. 

Dnnioll's  Ch.  Pr.  (2d  Am.  od.)   1704.  §  223.     1  Mitford  V  PI.,  ch.  1,  §  3. 

7  Daniell's  Ch.  Pr.  1704.  2  Eq.    Rule    35;    r-opiod    from    Eq. 

8  Clark    v.     Mathewson,     12     I'et.  Rule  ^8,  of   1842. 

Ifi4,   9   L.   ed.    1041;    s.  c,   2   Sumn.  3Mitford's  PI.,  di.  1,  §3. 

262.  4Shainwald  v.  Lewis,  69  Fed.  487. 

9  Lawien.-e    v.    South  in    Puf.    Co.,  6  Mitf ord  "s   PL,   ch.    1,    §3;    Dau- 
177   Fed.    547.  i'^'H's  Ch.  Pr.    (2d  Am.  od.)    1707. 

10  r.  S.  V.  Fields,  4  Blatehf.  326. 

Fed.    Pra.-.    Vol.    U— (i 


1206  abatement'  and  revivor  [§  224 

poses  of  the  suit,  an  account  of  the  estate  of  the  deceased  party 
may  be  taken ;  and  so  far  the  bill  is  in  the  nature  of  an  original 
bill.^  "If  a  defendant  to  an  original  bill  dies  before  putting 
in  an  ansvi^er,  or  after  an  amendment  of  the  bill  to  which  no 
answ^er  has  been  given,  the  bill  of  revivor,  though  requiring  in 
itself  no  answer,  must  pray  that  the  person  against  whom  it  seeks 
to  revive  the  suit  may  answer  the  original  bill,  or  so  much  of  it 
as  the  exceptions  taken  to  the  answer  of  the  former  defendant 
extend  to,  or  the  amendment  remaining  unanswered. "  '  A  bill 
of  revivor  should  be  signed  by  the  solicitor,^  and  in  general  com- 
ply so  far  as  is  practicable  with  the  requirements  for  original 
bills.9 

§  224.  Proceedings  upon  bills  of  revivor.  The  Equity  Rules 
provide  that:  "In  the  event  of  the  death  of  either  party  the 
court  may,  in  a  proper  case,  upon  motion,  order  the  suit  to  be 
revived  by  the  substitution  of  the  proper  parties.  If  the  suc- 
cessors or  representatives  of  the  deceased  party  fail  to  make 
such  application  within  a  reasonable  time,  then  any  other  party 
may,  on  motion,  apply  for  such  relief,  and  the  court,  upon  any 
such  motion  may  make  the  necessary  orders  for  notice  to  the 
parties  to  be  substituted  and  for  the  filing  of  such  pleadings 
or  amendments  as  may  be  necessary. ' '  ^  This  changes  the  for- 
mer practice,  which  required  the  issue  of  a  subpoena  and  pro- 
ceedings in  the  nature  of  an  original  suit.^  The  Revised  Stat- 
utes provide  "when  either  of  the  parties,  whether  plaintiff,  pe- 
titioner, or  defendant,  dies  before  final  judgment,  the  executor 
or  administrator  may,  if  the  suit  survives,  prosecute  or  defend 
to  final  judgment.  The  defendant  shall  answer,  and  the  cause 
will  be  heard  and  determined,  and  judgment  rendered  for  or 
against  the  executor  or  administrator.  If  the  executor  or  ad- 
ministrator neglects  or  refuses  to  become  a  party  twenty  days 
after  being  served  with  a  scire  facias,  the  court  may  neverthe- 
less render  judgment  against  the  deceased  party.  The  executor 
or  administrator  on  becoming  a  party  is  entitled  to  a  contin- 

6Mitfoid's   PL,   ch.   1,   §3.  v.    Decatur,    4    Cranch,    C.    C.    592. 
7  Mitford  's   PI.,   eh.   1,   §  3,  2  Mason  v.  Hartford,  P.  &  F.  By. 

8Eq.   Eule    24.  Co.,    19   Fed.   53;    Sharon   v.   Terry, 

9Danieirs  Ch.  Pr.    (2d  Am.   ed.)  36    Fed.    337;     Foster's    Fed.    Pr.. 

1707.  (fourth  ed.)   §  181. 
§  224.     1  Eq.  Rule  45.     See  Oliver 


;i224] 


PROCEEDINGS    Ul'UN    HILLS    OF    REVIVOR 


1207 


uance  until  the  next  terni."^  The  form  of  the  subpcena  upon 
a  bill  of  revivor  is  the  same  as  that  upon  an  original  bill,  except 
that  it  states  the  nature  of  the  bill  to  which  the  defendant  is 
required  to  appear,  and  the  time  allowed  him  by  the  rules  in 
which  to  do  so.*  The  subpcena,  if  required  is  also  sued  out  and 
served  in  the  same  manner  as  one  upon  an  original  bill ;  ^  but 
substituted  service  of  the  subpoena  upon  the  attorney  of  the  de- 
fendant to  the  original  bill  may  be  allowed  when  the  original 
defendant  is  beyond  the  reach  of  process.^  It  has  been  held  that 
a  suit  cannot  be  revived  against  the  foreign  executor  or  admin- 
istrator of  a  deceased  defendant  who  has  not  taken  out  letters 
within  the  jurisdiction  of  the  court,  and  has  no  assets  there.' 
If  the  defendant  refuses  to  appear,  process  of  contempt  may  be 
issued  against  him.*  A  defendant  who  wishes  to  oppose  the 
revivor  should  plead  to  the  bill,  move  to  dismiss  the  same,  or  per- 
haps show  cause  by  affidavit  to  the  contrary.^  It  might  per- 
haps not  be  expedient  to  take  in  the  answer  any  objection  to  the 
revivor.  For  the  English  rule  was  that  an  objection  thus  taken 
would  not  prevent  the  order  to  revive,  and  the  point  could  then 
only  be  determined  by  bringing  the  cause  regularly  to  a  hear- 

10 

A  bill  of  revivor  is  defective  if  it  does  not  show  a  sufficient 
ground  for  reviving  the  suit  or  any  part  of  it,  either  by  or 
against  the  person  by  or  against  whom  it  is  filed ;  ^^  for  want  of 
parties  apparent  upon  its  face,  though  not  for  the  omission  of 
such  as  had  not  appeared  before,  or  were  not  before  the  court 
at  the  time  of  the  abatement ;  ^^  and  for  any  serious  defect  in 


ing. 


3  U.  S.  R.  S.,  §  955.  See  Griswold 
V.  Hill,   1   Paine,  483. 

4Daniell's  Ch.  Pr.  (2d  Am.  e(l.> 
1707. 

SDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1707. 

6  Dunn  v.  Clarke,  8  Pet.  1,  2,  8 
L.  ed.  845;  Morton  v.  Hepworth,  1 
Hall  &  Tw.  158.     See  §  96. 

7  Melius  V.  Thompson,  1  Cliff.  125. 
SDaniell's  Ch.   Pr.    (2d   Am.  ed.) 

1707. 

9Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1709,  1710;  Rule  58. 


lODaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1709,  1711;  Harris  v.  Pollard,  3  P. 
Wms.  348;  Lewis  v.  Bridgman,  2 
Sim.  465;  Codrington  v.  Houlditeh, 
5   Sim.  286. 

11  Harris  v.  Pollard,  3  P.  Wms. 
348;  Universit}'  College  v.  Foxcroft, 
2  Ch.  R.  244;  Daniell's  Ch.  Pr.  (2d 
Am.  ed.)  1709,  1710;  Story's  Eq. 
PL,  §§  617.  829. 

12  Motc-alfe  V.  Metcalfe,  1  Keen. 
74;  Crowfoot  v.  Mander,  9  Sim. 
396;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1710. 


1208  ABATEMENT    AND    REVIVOR  1  §  224 

form.     Upon  demurrer  to  a  bill  of  revivor,  the  sufficiency  of 
the  original  bill  could  not  be  considered.i^    If,  however,  the  origi- 
nal bill  failed  to  state  facts  giving  the  Federal  courts  jurisdic- 
tion, that  objection  might  be  raised  by  a  demurrer  to  the  bill 
of  revivor."     If  a  bill  of  revivor  were  brought  without  suffi- 
cient cause  to  revive,  and  this  were  not  apparent  upon  its  face, 
or  if  the  plaintiff  was  not  entitled  to  revive  the  suit  at  all,  though 
a  title  was  stated  in  the  bill  so  that  it  was  not  demurrable,  the 
defendant  might  set  up  his  objections  to  it  by  plea.^s      Xo  plea 
can  be  put  in  against  a  bill  of  revivor  which  has  been  pleaded  to 
the  original  bill  and  overruled,  althougli  if  a  plea  has  been  put  in 
and  the  suit  aliated  before  argument,  it  may  subsequently  be 
pleaded  anew  to  the  original  bilL^^    When  an  answer  to  a  bill 
of  revivor  is  required,  it  must  be  confined  to  such  matters  as  are 
called  for  by  the  bill,  or  as  would  be  material  to  the  defense  with 
reference  to  the  order  made  upon  it.^'^    Allegations  which  might 
have  been  pleaded  before  abatement  to  the  original  bill  will  be 
considered  as  impertinent,"  and  disregarded.^^    It  will  not,  how- 
ever, be  impertinent,  if  it  states  matters  of  defense  which  have 
occurred  since  the  answer  to  the  original  bill  was  filed,  though 
these  do  not  affect  the  title  of  the  plaintiff  to  revive.20    Such  an 
answer  is  impertinent  wdien  it  describes  and  complains  of  irreg- 
ularities in  the  suit  before  the  abatement.21     Such  an  answer 
should  be  signed  by  the  solicitor.22    One  replication  put  in  issue 
both  the  allegations  in  that  and  those  in  the  original  answer.^^ 
In  all  other  respects,  the  forms  and  the  proceedings  upon  de- 
murrers, pleas,   and  answers  to  bills  of  revivor  conformed  as 
nearly  as  possible  to  those  of  and  upon  similar  pleadings  to  origi- 

13  Mason  V.  Hartford,  P.  &  F.  By.  r.08,  19  L.  e.l.  91.3,  915;  Fretz  v. 
Co  19  red.  53,  55;  Sharon  v.  Terry,  Stover,  22  Wall.  198,  204,  22  L.  ed. 
36  Fed.  337.  769,  770. 

14  Sharon  v.  Terry,  36  Fed.  337.  20  Langley    v.    Overton,    10    Sim. 
ISDaniell's  Ch.  Pr.  (2d  Am.  ed.)       345. 

1710;    Lewis    v.   Bridgman,    2    Sim.  21  Wagstaff  v.  Bryan,  1  E.  &  M. 

465.  28. 

IBDaniell's  Ch.  Pr.   (2d  Am.  ed.)  22  Daniell's  Ch.  Pr.   (2d  Am.  ed.) 

1711.  1712. 

17Daniell's  Ch.  Pr.   (2d  Am.  ed.)  23  Catton    v.    Earl    of    Carlisle,    5 

1711;  Story's  Eq.  PI.,  §  868a.  Madd.    427;    Daniell's   Ch.    Pr.    (2d 

18  Nanney  v.  Tottey,  11  Price,  117.  Am.   ed.)    1712. 

19Gunncll  v.   Bird,  10  Wall.  304, 


$5  2251  UILI-S    IN    NATIKK    oK    HILLS    OF    Ri;VlV(»K  12011 

nal  bills. 2^  A  i)ill  of  revivor  need  not  be  set  down  for  a  iiear- 
ing,  unless  it  prays  other  relief  than  a  mere  revivor.^^  Where 
a  bill  of  revivor  sought  merely  an  admission  of  assets  and  a  re- 
vivor, and  the  defendant  admitted  assets,  the  cause  might  proceed 
upon  the  order  of  revivor  merely.^^  If,  however,  any  issue  were 
joined  upon  the  answer  to  it,  a  hearing  was  necessary."  The 
sole  questions  before  the  court  when  a  bill  of  i-evivor  is  tiled  are 
the  competency  of  the  pai'tios  by  and  against  whom  it  is  tiled 
and  the  frame  of  the  bill.^s  A  cause  is  not  revived  until  an 
order  of  revivor  has  been  entered.^^ 

§  225.  Bills  in  the  nature  of  bills  of  revivor  in  general.  A 
bill  in  the  nature  of  a  bill  of  revivor  is  a  bill  tiled  •"to  obtain  the 
benefit  of  a  suit  after  abatement  in  certain  cases  which  do  not 
admit  of  a  continuance  of  the  original  bill.''^  The  ancient 
practice  is  thus  described.  "If  the  death  of  a  party  whose  in- 
terest is  not  determined  by  his  death  is  attended  with  such  a 
transmission  of  his  interests  that  the  title  to  it,  as  well  as  the 
person  entitled,  may  be  litigated  in  the  court  of  chancery,"  as 
in  the  case  of  a  devise  ^  or  conveyance^  of  real  estate,  "the 
suit  is  not  permitted  to  be  continued  by  a  bill  of  revivor.  An 
original  bill  upon  whieh  the  title  may  be  litigated  must  be 
iiled,  and  this  bill  will  so  far  have  the  effect  of  a  bill  of  revivoi- 
that  if  the  title  of  the  representative  substituted  by  the  act  of 
the  deceased  party  is  established,  the  same  benefit  may  be  had 
of  the  proceedings  upon  the  former  bill  as  if  the  suit  had  been 
continued  by  a  bill  of  revivor."*  "The  bill  is  said  to  be  orig- 
inal  merely  for  want  of  that  privity  between  the  party  to  the 
former  and  the  party  to  the  latter  bill,  though  claiming  the 
.same  interest,  whieh  would  have  permitted  the  continuance 
of  the  suit   by  bill  of  revivor.     Therefore,  when   the  validity 

24Daiiioirs  Ch.  Pr.   (2(1  Am.  ed.)  §  22.3.     1  Mitford    PI.,    cli.    1,    ^  :>. 

1711,  1712.  See  Slack  v.  Walcott,  3  Mason,  508, 

25Piueu  V.  LiiiDi,  5  Russ.  :i ;  Dan-  512;    Sharon  v.  Terry,  36  Fed.  3.37, 

iell's  Ch.  Pr.   (2d  Am.  ed.)    1713.  353. 

26  Mitford 's  PI.,  ch.  1,   §3;    Dan-  2  Slack  v.  Walcott,  3  Mason,  508. 

iell's  Ch.  Pr.   (2d  Am.  ed.)    171:'..  3  Sharon  v.  Terry,  36  Fed.  337. 

27Danieirs  Ch.  Pr.   (2d  Am.  ed.)  4  Mitford 's    PI.,    ch.    1,    S3.      Sec 

1713;  Mitford 's  PI.,  ch.  1,  §3.  Sla.k  v.  Walcott.  3  Mason,  508. 

28Bettes  v.  Dana,  2  Sumn.  383. 

29Atterbury  v.  Gill,   i:'.  Off.  Gaz. 
276. 


1210  ABATEMENT    AND    REVIVOR  [§  225 

of  the  alleged  transmission  of  interest  is  established,  the  party 
to  the  new  bill  shall  be  equally  bound  by,  or  have  advantage  of 
the  proceedings  in  the  original  bill,  as  if  there  had  been  such  a 
privity  between  him  and  the  party  to  the  original  bill  claim- 
ing the  same  interest;  and  the  suit  is  considered  as  pending 
from  the  time  of  the  filing  of  the  original  bill,  so  as  to  save  the 
statute  of  limitations,  to  have  the  advantage  of  compelling  the 
defendant  to  answer  before  an  answer  can  be  compelled  to  a 
cross-bill,    and    every    other    advantage    which    would    have    at- 
tended the  institution  of  the  suit  by  original  bill,  if  it  could 
have    been    continued    by    bill    of    revivor    merely.  "^     So    the 
pleadings  tiled  and  any  testimony  taken  in  the  original  cause 
can  be  used  in  the  same  manner  in  the  second  cause  after  a  bill 
in  the  nature  of  a  bill  of  revivor  has  been  filed.^     Such  a  bill 
can  only  be  filed  for  the  purpose  of  bringing  in  a  person  who  • 
claims  in  privity  with  the  party  whose  death  caused  the  abate- 
ment.'    Thus,  if  a  bill  is  filed  by  a  devisee  under  a  will,  and 
afterwards  a  subsequent  will  is  proved,  the  devisee  under  the 
second  will  can  in  no  way  avail  himself  of  the  proceedings  in 
the  suit ;  for  there  is  no  privity  between  him  and  the  original 
plaintiff.     If,  however,  a  bill  has  been  filed  hy  the  devisor  him- 
self for  some  matter  concerning  the  estate  devised,  the  second 
devisee  may  file  a  supplemental  bill  in  the  nature  of  a  bill  of 
revivor,  even  if  the  first  devisee  have  already  filed  such  a  bill; 
for  he  derives  his  title  so  to  do  solely  from  the  devisor  independ- 
ently of  the  first  devisee.^    The  principal  difference  between  the 
effect  of  an  original  bill  in  the  nature  of  a  bill  of  revivor  and  an 
original  bill  in  the  nature  of  a  supplemental  bill  is  that  under 
the  former  the  defendant  is  absolutely  bound  by  the  proceedings 
in  the  original  suit,  whereas  under  the  latter  he  can  avail  him- 
self of  any  defense  which  has  arisen  since  the  original  bill  was 
filed,  or  which  he  has  a  right  to  urge  against  the  new  complain- 
ant,  although  it   did  not   exist  against   the  original  plaintiff.^ 

6  Mitford  's  PI.,  ch.  1,  §  3.  Eq.  PI.,  §  385 ;   Rylands  v.  Latonehe, 

6  Slack  V.  Walcott,  3  Mason,  508;  2  Bligh,  385;   Tonkin  v.  Lethbridge, 

Battier   v.   Hinde,    7   Pet.   252,   266,  G.  Cooper,  43. 

8  L.  ed.  675,  680;   Story's  Eq.  PI.,  8  Oldham  v.  Eboral,  Cooper,  Select 

§§371-387;    Darnell's    Ch.    Pr.     (2d  Cas.  27. 

Am.  ed.)  1719.  ^  Fulton  v.  Greacen,  44  N.  J.  Eq. 

VDaniell's  Ch.  Pr.   1720;    Story's  443. 


§  227]  RKVIVOR    UPON    APPEAL    OR    p:r<RtiH  1211 

When  the  court  had  jurisdiction  of  the  original  suit,  a  want  of 
difference  of  citizenship  between  the  parties  to  the  bill  in  the 
nature  of  a  bill  of  revivor  will  not  be  a  defect  in  it." 

§226.  Frame  of  bills  in  the  nature  of  bills  of  revivor  and 
proceedings  upon  them.  A  bill  in  tiie  nature  of  a  bill  of  re- 
vivor ■must  stale  the  oi'iginal  bill,  the  proceedin«rs  upon  it,  the 
abatement,  and  the  manner  in  which  the  interest  of  the  party 
dead  has  been  transmitted;  and  it  must  charge  the  validity  of 
the  transmission,  and  state  the  rights  which  have  accrued  by 
it."^  It  usually  prays  that  the  original  suit  may  be  revived, 
and  the  party  filing  it  have  the  benefit  of  the  former  proceed- 
ings therein.^  Probably  a  subpcena  issued  in  accordance  with 
its  praj-er  may  be  served  upon  the  attorney  of  an  absent  de- 
fendant, who  has  already  appeared,  in  the  same  manner  as  a 
subpmia  upon  a  bill  filed  to  stay  proceedings  at  law.^  Other- 
wise the  form  and  the  proceedings  upon  bills  in  the  nature  of 
bills  of  revivor  were  formerly  the  same  as  those  upon  bills  of 
revivor;*  and  the  difference  between  the  two  was  practically 
one  of  mere  nomenclature.^ 

§227.  Manner  of  revivor  upon  appeal  or  error.  The  Su- 
preme Court  Rules  provide:  '1.  Whenever,  pending  a  writ  of 
error  or  appeal  in  this  court,  either  party  shall  die,  the  proper 
representatives  in  the  personalty  or  realty  of  the  deceased  party, 
according  to  the  nature  of  the  case,  may  voluntarily  come  in 
and  be  admitted  parties  to  the  suit,  and  thereupon  the  case  shall 
be  heard  and  determined  as  in  other  cases;  and  if  such  repre- 
sentatives shall  not  voluntarily  become  parties,  then  the  other 
party  may  suggest  the  death  on  the  record,  and  thereupon,  on 
motion,  obtain  an  order  tliat  unless  such  representatives  shall 
become  parties  within  the  first  ten  days  of  the  ensuing  term,  the 
party  moving  for  such  order,  if  defendant  in  error  or  appellee 
shall  be  entitled  to  have  the  writ  of  error  or  appeal  dismissed; 

10  Clarke    v.    Mathewson,    12    Pot.  3  Norton    v.   Hopworth.    1    Hall    & 

164,  9   L.  ed.  1041;    s.  c,  2   Suinii.  T\\.   1.58;    Dunn  v.  Clarke,  8  IVt.  1, 

262;   Minnesota  Co.  v.  St.  Paul  Co.,  2.  8  L.  od.  84.5.     See  §96. 

2  Wall.  609,  17  L.  eil.  886.  4  Daniell's    Ch.    Pr.    1720,    1721; 


§226.     IMitford's  Eq.  PL,  Hi.  1,       Rule  56. 


§3 


5  Grew  v.  Breen,  12  Met.   (Mass.) 


2Dauicirs  Ch.   Pr.   1721;    Story's       :i69,   46   Am.   Dec.   687. 
Fx].  PI.,  §  386. 


1212  ABATEMENT    AND    REVIVOR  |  jj  227 

and  if  the  party  so  moving  shall  l)e  plaintiff  in  error  or 
appellant,  he  shall  be  entitled  to  open  the  record,  and  on 
hearing  have  the  judgment  or  decree  reversed,  if  it  be 
erroneous:  Provided,  however,  That  a  copy  of  every  such 
order  shall  be  printed  in  some  nev^^spaper  of  general  circu- 
lation within  the  State,  Territory,  or  District  from  which 
the  case  is  brought,  for  three  successive  weeks,  at  least  sixty 
days  before  the  beginning  of  the  term  of  the  Supreme  Court 
then  next  ensuing.  2.  When  the  death  of  a  party  is  suggested, 
and  the  representatives  of  the  deceased  do  not  appear  by  the 
tenth  day  of  the  second  term  next  succeeding  the  suggestion,  and 
no  measures  are  taken  by  the  opposite  party  within  that  time 
to  compel  their  appearance,  the  case  shall  abate.  3.  When  either 
party  to  a  suit  in  a  "  District  ' '  f 'ourt  of  the  United  States  shall 
desire  to  prosecute  a  writ  of  error  or  appeal  to  the  Supreme 
Court  of  the  United  States,  from  any  final  judgment  or  decree, 
rendered  in  the"  District  "Court,  and  at  the  time  of  suing  out 
such  writ  of  error  or  appeal  the  other  party  to  the  suit  shall  be 
dead  and  have  no  proper  representative  within  the  jurisdiction 
of  the  court  which  rendered  such  final  judgment  or  decree,  so 
that  the  suit  cannot  be  revived  in  that  court,  but  shall  have  a 
proper  representative  in  some  State  or  Territory  of  the  United 
States,  the  party  desiring  such  writ  of  error  or  appeal  may  pro- 
cure the  same,  and  may  have  proceedings  on  such  judgment  or 
decree  superseded  or  stayed  in  the  same  manner  as  is  now  al- 
lowed by  law  in  other  cases,  and  shall  thereupon  proceed  with 
such  writ  of  error  or  appeal  as  in  other  cases.  And  within  thirty 
days  after  the  commencement  of  the  term  to  which  such  writ 
of  error  or  appeal  is  returnable,  the  plaintiff  in  error  or  appel- 
lant shall  make  a  suggestion  to  the  court,  supported  by  affidavit, 
that  the  said  party  was  dead  when  the  writ  of  error  or  appeal 
was  taken  or  sued  out,  and  had  no  proper  representative  within 
the  jurisdiction  of  the  court  which  rendered  said  judgment  or 
decree,  so  that  the  suit  could  not  be  revived  in  that  court,  and 
that  said  party  had  a  proper  representative  in  some  State  or 
Territory  of  the  United  States,  and  stating  therein  the  name  and 
character  of  such  representative,  and  the  State  or  Territory  in 
which  such  representative  resides ;  and.  upon  such  suggestion, 
he  may,  on  motion,  obtain  an  order  that,  unless  such  represen- 
tative shall  make  himself  a  party  within  the  first  ten  days  of 
the  ensuing  term  of  the  court,  the  plaintiff  in  error  or  appellant 


§  227]  REVIVOR    Ul'ON    APl'EAL    OR    ERROR  1213 

shall  be  entitled  to  open  the  record,  and,  on  hearing,  have  the 
judgment  or  decree  reversed,  if  the  same  be  erroneous:  Pro- 
vided, however.  That  a  proper  citation  reciting  tlie  substance  of 
such  order  shall  be  served  upon  such  representative,  either  per- 
sonally or  by  being  left  at  his  residence,  at  least  sixty  days  be- 
fore the  beginning  of  the  term  of  the  Supreme  Court  then  next 
ensuijig:  And,  j)rovided,  also.  That  iu  every  such  case  if  the 
representative  of  the  deceased  party  does  not  appear  by  the 
tenth  day  of  the  term  next  succeeding  such  suggestion,  and  the 
measures  above  provided  to  compel  the  appearance  of  such 
representative  have  not  been  taken  within  the  time  as  above  re- 
quired, by  the  opposite  party,  the  case  shall  abate:  Ami.  pro- 
vided, also,  That  the  said  representative  may  at  any  time  b^'fore 
or  after  said  suggestion  come  in  and  be  made  a  party  to  the  suit, 
and  thereupon  the  case  shall  proceed,  and  be  heard  and  deter- 
mined as  in  other  cases."  ^  The  Circuit  Courts  of  Appeals  have 
a  similar  rule.^  Where  one  of  several  joint  defendants  to  a  de- 
cree for  damages  and  an  injunction  against  the  infringement 
of  a  patent  dies  after  an  appeal,  the  suit  may  be  revived  in  the 
appellate  court  at  the  suit  of  the  survivors,  upon  notice  to  the 
personal  representatives  of  the  decedent  undei-  the  Supreme 
doiirt  Rule  without  bringing  them  in  as  parties.^  If  in  such  a 
ease  the  personal  representatives  of  the  deceased  appellant  vol- 
untarily come  in  and  ask  to  be  made  parties,  they  may  be  ad- 
mitted.* Where  the  presence  of  the  personal  representatives  of 
a  deceased  appellant  will  be  required  for  the  due  prosecution  of 
an  appeal  by  his  survivors,  the  appellate  court  may  order  that 
the  appeal  be  dismissed  unless  properly  revived  within  a  lim- 
ited time.*  Where  a  defendant  dies  after  judgment,  an  execu- 
tion issued  before  the  judgment  is  revived  is  no  effect  and  all 
proceedings  thereunder  are  void:  unless,  perhaps,  when  the  writ 
was  tested  before  the  death  occurred ;  ^  but  the  death  of  a  judg- 
ment debtor  does  not  affect  tlie  validity  of  a  sheriff"s  deed  sub- 

§227.     1  Supremo   Court   Rule   lo.  5  Rlake  v.  BoirK>,  Macq.  I'r.  ol    H. 

2C.  C.  A.  Rule  IP.  of   L.   244   note;    Moses   v.   Wooster, 

3  Moses  V.  Wooster,  115  V.  S.  285,  115  V.  S.  285,  288,  29  L.  crl.   :591. 
287,  29  L.  ed.  391,  392.  392. 

4  Thorpe   v.   Matliington,    1    Phill.  6  Ransom  v.  Williams,  2  Wall.  31.1. 
Ch.  200;    Moses  v.  Wooster,   115  U.  17   L.  ed.  S03. 

S.  285,  288,  29  L.  ed.  391,  392. 


1214 


ABATEMENT    AND    REVIVOR 


[§228 


seqiiently  executed,  but  previously  ordered.'''  Where  a  judg- 
ment for  a  personal  injury  had  been  erroneously  set  aside,  the 
appellate  court  ordered  judgment  in  favor  of  the  original  plain- 
titf  nunc  pro  tuivc  as  of  a  date  before  his  death.*  Where  a  writ 
of  error  to  review  a  judgment  of  conviction  was  dismissed  upon 
the  defendant's  death  and  the  cause  remanded  for  such  further 
proceedings  as  "according  to  right  and  justice  and  laws  of  the 
United  States  ought  to  be  had,"  on  the  filing  of  the  mandate  the 
court  of  fii'st  instance  had  the  power  to  entertain  a  motion  in 
abatement.* 

§  228.  Bills  of  revivor  and  supplement.  A  bill  of  revivor 
and  supplement  is  a  bill  which  revives  a  suit  after  an  abate- 
ment, and  at  the  same  time  supplies  a  defect  which  has  arisen 
in  it  since  its  institution.^  Thus,  where  by  the  death  of  a  de- 
fendant new  rights  accrue  to  the  plaintiffs,  a  bill  of  revivor  and 
supplement  is  necessary  to  state  those  facts.''  And  where  after 
the  conveyance  by  the  complainant  of  the  debt,  he  die,  a  bill 
of  revivor  and  settlement  is  required.^  It  has  been  held  in  Eng- 
land that  by  such  a  bill  a  defect  apparent  upon  the  face  of  the 
original  bill  cannot  be  cured.*  A  bill  of  revivor  and  supple- 
ment is  merely  a  compound  of  a  bill  of  revivor  and  a  supple- 
mental bill,  and  its  separate  parts  must  be  framed  and  proceed  in 
the  same  manner.^  It  seems  that  it  may  be  good  as  to  the  revivor, 
and  bad  as  to  the  supplemental  matter.^  All  parties  to  the  orig- 
inal bill  should  be  made  parties  to  the  bill  of  revivor  and  supple- 


7Insley  v.  U.  S.,  150  U.  S.  512, 
37  L.  ed.  1163. 

8  Coughlan  v.  District  of  Colum- 
bia, 106  U.  S.  7,  27  L.  ed.  74.  But 
see  Martin 's  Adm  'r  v.  Baltimore  & 
O.  E.  Co.,  151  U.  S.  673,  38  L.  ed. 
311. 

9U.  S.  V.  Dunne,  C.  C.  A.,  173 
Fed  254,  19  Ann.  Cas.  1145. 

§  228.  1  Mitford's  PL,  eh.  1,  §  2; 
Story's  Eq.  PI.,  §§387,  627;  Dan- 
iell's  Ch.  Pr.  (2d  Am.  ed.)  1722, 
1723. 

aWestcott  V.  Cady,  5  J.  Ch.  (N. 
Y.)    334,  342,  9  A.  Dec.  306. 

3  Miller  v.  Wattier,  165  Fed.  359. 


See  Metal  S.  Co.  v.  Crandall.  18  Off. 
Gaz.  1531,  where  the  court  held  that 
it  was  improper  to  revive  the  suit 
by  a  bill  of  revivor  and  said  that 
he  must  file  a  "  supplemental  bill, ' ' 
evidently  intending  thereby  a  bill  of 
revivor  and  supplement. 

4  Bampton  v.  Birchall,  5  Beav. 
330  s.  c;   on  appeal,  1  Phil.  568.     - 

5  Mitf  ord  's  PI.,  ch.  1,  §  3  ;  Story 's 
Eq.  PI.,  §§387,  627;  Daniell's  Ch. 
Pr.  1722,  1723;  Pendleton  v.  Fay, 
3  Paige   (N.  Y.)   204. 

6  Randolph  v.  Dickerson,  5  Paige 
Birchall,  5  Beav.  330;  s.  c,  on  ap- 
peal, 1  Phil,  568. 


§  230]  WHAT    RENDERS    SUIT    DEFECTIVE  1215 

inent,  although  a  revivor  is  sought  against  but  one  defendant 7  A 
hill  may  be  sustained  upon  demurrer  where  its  allegations  are 
sutificient  to  support  e(|uitable  relief,  whether  properly  or  not 
styled  a  bill  of  revivor  and  su])i)leiiienl.^ 

§  229.  Supplemental  bills  in  the  nature  of  bills  of  revivor. 
A  supplemental  bill  in  the  nature  of  a  bill  of  revivor  is  a  bill 
filed  to  eure  an  abatement  when  the  person  by  or  against  whom 
the  suit  is  to  be  continued,  although  claiming  under  the  indi- 
vidual whose  death  caused  the  abatement,  is  not  the  representa- 
tive whom  the  law  allows  to  be  recognized,  but  is  one  whose  title 
could  not  have  been  litigated  in  the  English  Court  of  Chancery, 
but  might  have  been  disputed  before  another  tribunal.^  It  has 
also  been  held  that  where  during  the  pendency  of  a  suit  a  trus- 
tee died,  and  the  court  appointed  a  successor  to  him,  the  new 
trustee  could  only  be  brought  in  by  supplemental  bill  in  the 
nature  of  a  bill  of  revivor.^  Upon  the  death  of  a  trustee  or  as- 
signee in  banki-uptcy  or  insolvency  his  successor  is  brought  in 
by  a  bill  of  this  character.^  Where  one  of  the  complainants  died 
leaving  a  will,  which  was  proved  in  a  foreign  country,  a  motion 
of  his  executor  and  testamentary  trustee  to  revive  the  suit  upon 
a  bill  in  the  nature  of  a  bill  of  revivor  was  denied  with  leave 
to  him  and  the  decedent's  devisees  to  file  a  supplemental  bill.* 
Such  a  bill,  however,  although  designated  as  being  in  the  nature 
a  bill  of  revivor,  is  neither  more  nor  less  than  a  supplemental 
bill.6 

§230.  What  renders  a  suit  defective.  If,  after  the  institu- 
tion of  a  suit  in  ecpiity.  a  person  who  is  a  necessary  party  there- 
to comes  into  being,  or  any  other  event  occurs,  which,  without 
abatiner  the  suit,  occasions  such  an  alteration  in  the  interest  of 
any  of  the  original  parties,  or  gives  any  person  not  a  party  such 
an  interest  therein,  as  nuikes  it  necessary  that  the  change  of  in- 
terest shall  be  brought  to  the  attention  of  the  court,  and  the  per- 

7  Lake  v.  Austwick,  4  Jur.  .314.  3  Daniell's  Cli.   Tr.    (2<1  Am.   e.l.) 

SShainwald  v.  Lewis,  69  Fed.  487.       172L 
But    see   Campbell   v.    City    of   New  4  Currell   v.   Villars,   72   Fed.   :VM. 

York,  .35  Fed.  14.  6  Daniell's  Cli.   Pr.    (2d   Am.   ed.) 

§229.     1  Daniell's     Ch.     Pr.     (2d       1721. 
Am.  ed.)    1721. 

ZGreenleaf  v.   Queen,   1   Pet.    138, 
148,  7  L.  ed.  85,  89. 


1216 


ABATEMENT    AND    REVIVOR 


[§230 


son  not  already  a  party  brought  before  it,  the  suit  is  said  to  be- 
come defective.^  This  happens  upon  the  dissolution  of  a  corpora- 
tion ;  ^'  but  not  by  the  entrance  into  liquidation  and  the  clos- 
ing of  the  business  of  a  national  bank,^  nor  by  the  appointment 
of  a  receiver  of  a  corporation  in  the  absence  of  a  statute  to  the 
contrary.^  The  circumstances  causing  the  change  of  interest 
must  then  be  alleged,  and  the  new  party  brought  in  by  a  sup- 
plemental bill,  or  a  bill  in  the  nature  of  a  supplemental  bill.* 
An  assignment  during  the  pendency  of  a  suit,  whether  made 
voluntarily,^  or,  such  as  the  election  of  a  trustee  in  bankruptcy, 
by  operation  of  law,^  of  the  whole  or  a  part  of  a  defendant's 
interest  therein,  does  not  make  the  suit  defective,  nor  affect  the 
rights  of  the  other  parties,  since  the  assignee  takes  the  same 
rights  and  is  subject  to  the  same  obligations  as  his  assignor,  and 
is  equally  bound  or  benefited  by  the  decree.  The  assignee  need 
not,  therefore,  be  made  a  party,'  unless  the  assignment  disables 
the  assignor  from  performing  the  decree  of  the  court,  when  he 
should  be  brought  before  it ;  ^  but  he  may  at  any  time  be  brought 
in  at  his  own  request  *  or  at  the  request  of  the  complainant.^" 


§  230.  1  Jones  v.  Jones,  3  Atk. 
217;  Mitfoi-d's  PI.,  ch.  1,  §3;  Dan- 
iell's  Ch.  Pr.  (2d  Am.  ed.)   1663. 

la  National  Bank  v.  Colby,  21 
Wall.  609,  22  L.  ed.  687 ;  p.  763  A. ; 
Greeley  v.  Smith,  3  Story,  658; 
Mumma  v.  Potomac  Co.,  8  Pet.  281, 
22  L.  ed.  687.  But  see  Lake  Sup. 
I.  Co.  V.  Brown,  B.  &  Co.,  44  Fed. 
539.     See  §  216  supra. 

2  Nat.  Bank  v.  Insurance  Co., 
104  U.  S.  54,  72,  26  L.  ed.  693,  701. 

3Chem.  Nat.  Bank  v.  Hartford 
Dep.  Co.,  161  U.  S.  1,  40  L.  ed. 
595;  National  Bank  v.  Insurance 
Co.,  104  U.  S.  54,  72,  26  L.  ed. 
693,  701.  The  appointment  of  a 
receiver  does  not  abate  a  suit 
against  a  national  bank. 

4  Jones  v.  Jones,  ."{  Atk.  217;  Mit- 
ford  's  PI.,  ch.  1,  §  3 ;  Daniell  's  Ch. 
Pr.   (2d  Am.  ed.)   1663. 

5  Ex  parte  Kailroad  Co.,  95  T".  S. 
221,  24  L.  ed.  355;   HazHton  T.  B. 


Co.  V.  Citizens'  Street  Ey.  Co.,  72 
Fed.  325;  Interlocking  Steel  Sheet- 
ing Co.  V.  Friestedt  Interlocking 
Channel  Bar  Co.,  182  Fed.  398. 

6  Hewett  V.  Norton,  1  Woods.  68 ; 
Eyster  v.  Gaff,  91  U.  S.  521,  23  L. 
ed.  403. 

7  Eyster  v.  Gaff,  91  U.  S.  521,  23 
L.  ed.  403;  Ex  parte  Eailroad  Co., 
95  U.  S.  221,  24  L.  ed.  355. 

SDaniell's  Ch.  Pr.  (2d  Am.  ed. ) 
1664. 

9  Foster  v.  Deacon,  Mad.  &  GeLI. 
59;  Eyster  v.  Gaff,  91  U.  S.  521,  23 
L.  ed.  403 ;  Ex  parte  Eailroad  Co., 
95  U.  S.  221,  226,  24  L.  ed.  355, 
357 ;    infra,   §  234. 

10  Victor  Talking  Machine  Co.  v. 
Hawthorne  &  Shchle  Mfg.  Co.  173 
Fed.  617.  Cited  with  approval  by 
Lanning,  J.,  in  Pittsburgh,  S.  &  N. 
E.  Co.  V.  Fiske,  C.  C.  A.,  178  Fed. 
66,  67. 


§  280] 


WHAT    KENDEKS    SUIT    DEFECTIVE 


121 


It  has  been  held:  thai  in  a  suit  fur  an  injunction,  an  assignment 
by  a  sole  plaintiff,  of  his  whole  interest  in  the  suit,  compels  a 
suspension  of  the  proceedings  until  his  successor  is  brought  in.^^ 
Where,  in  a  suit  for  tiie  infringement  of  a  patent,  after  an  in- 
terlocutory decree  for  an  injunction  and  an  account,  the  com- 
plainant assigned  its  entire  right  t(t  the  pate)it,  and  took  hack 
from  the  assignees  a  license,  which  was  not  exclusive;  it  was  held, 
that  it  could  not  recover  any  profits  or  damages  on  account  of 
the  infringement,  which  occurred  after  the  execution  of  the  as- 
signment, nor  proceed  against  the  defendant  for  a  violation  of 
the  injunction.^2  It  has  been  held:  that  a  reassignment  to  the 
original  complainant  does  not  restore  the  suit  to  its  original 
condition,  before  the  assignment  by  him  was  made ;  and  that  the 
suit  cannot  be  continued  without  a  bill  in  the  nature  of  a  sup- 
plemental bill.^^  The  expiration  of  a  patent  docs  not  render 
a  suit  for  its  infringement  defective  or  abate  the  same.^* 

It  has  been  said  that  a  person  entitled  to  the  benefit  of  a  de- 
cree by  his  subsequent  acquisition  of  an  interest  in  the  subject- 
matter  in  controversy  is  not  entitled  to  invoke  the  aid  of  the 
court  or  take  further  action  until  he  has  made  himself  a  party 
by  a  supplemental  bill  or  other  appropriate  pleading,  and  has 
thus  brought  in  the  representatives  or  successors  in  interest  of 
the  original  parties,  plaintiff  or  defendant. ^^ 

In  a  case  in  admiralty,  it  was  held  that  a  suit  brought  in  the 
name  of  Napoleon  III.,  on  account  of  an  injury  to  property, — 
a  French  ship  held  by  him  in  his  sovereign  capacity, — did  not 
abate  by  his  deposition  and  the  succession  of  the  French  Repub- 
lic to  the  French  limpire,  and  that  the  name  of  the  plaintiff! 


11  lloxic  V.  Carr,  1  Suniiici-,  17.">; 
Fed.  Cas.  No.  6,802;  Boss  v.  Ft. 
Wayne,  63  Fed.  466,  470,  11  C.  C. 
A.,  288;  Eeaubert  v.  Ap].leton,  C. 
C.  A.,  67  Fed.  917,  923;  Goss  Print 
ing  Press  Co.  v.  Seott,  134  Fed.  880; 
Automatic  Switch  Co.  v.  Cutler- 
Hamnior  Mfg.  Co.,  C.  C.  A.,  147  Fed. 
250;  (reorge  W.  Jackson,  Inc.  v. 
Friestedt  Interlocking  Clinnncl  Hai- 
Co.,   1.19   Fed.   496. 

12  (.1  OSS     Printing      I'ross     Co.     \. 
Scott,   134  Fed.   880. 


13  Automatic  Switch  Co.  v.  Cutk-r 
Ilanuner  Mfg.  Co.,  C.  C.  A.,  1-17 
Fed.  250. 

14  (Jeorge  W.  .lackson.  Inc.  \. 
Friestcdt  Interlocking  Channel  Bar 
Co.,  159  Fed.  496;  Interlocking 
Steel  Sheeting  Co.  v.  Friestcdt  In- 
terlocking Channel  Bar  Co.,  182 
Fed.  398;  Schnieiser  Mfg.  Co.  v. 
l.'lly.  189  Fed.  631. 

16  Sc'cor  V.  Singleton.  H  Fed.  725. 
726;   infra.  S  234.  ; 


1218 


ABATEMENT    AND    REVIVOR 


[§231 


could  at  any  time  be  changed  by  order.i^  Where,  after  a  re- 
ceiver appointed  by  a  State  court  had  brought  suit  against  a 
citizen  of  another  State,  his  appointment  was  annulled,  and  he 
subsequently  died ;  it  was  held,  that  the  suit  could  not  be  con- 
tinued by  a  citizen  of  the  defendant's  State,  appointed  to  the 
same  receivership  after  such  death. i''' 

§231.  Supplemental  bills.  The  Equity  Rules  provide: 
''Upon  application  of  either  party  the  court  or  judge,  may,  upon 
reasonable  notice  and  such  terms  as  are  just,  permit  him  to  file 
and  serve  a  supplemental  pleading,  alleging  material  facts  oc- 
curring after  his  former  pleading,  or  of  which  he  was  ignorant 
when  it  was  made,  including  the  judgment  or  decree  of  a  com- 
petent court  rendered  after  the  commencement  of  the  suit  de- 
termining the  matters  in  controversy  or  a  part  thereof. "  ^  A 
supplemental  bill  is  merely  an  addition  to  the  original  bill.^ 

At  first  supplemental  bills  were  filed,  not  only  for  the  pur- 
poses mentioned  in  the  last  section,  but  also  to  supply  such  de- 
fects as  might  have  been  cured  by  amendment  after  the  time  to 
perfect  a  bill  by  amendment  had  expired.^  Now,  however,  that 
amendments  may  be  allowed  at  any  stage  of  a  suit,*  they  are  no 
longer  needed  for  that  purpose ;  and  as  the  fact  that  the  matter 
pleaded  in  a  supplemental  bill  may  be  inserted  in  the  original 
bill  by  amendment,  was  also  good  ground  of  demurrer,*  the  pro- 
priety of  their  use  for  this  purpose  is  doubtful ;  ^  but  they  are 
still  occasionally  so  used.''    Where  plaintiff  had  no  cause  of  ac- 


16  The  Sapphire,  11  Wall.  164,  20 
L.  ed.  127.  See  Allen  v.  The  Mayor, 
7  Fed.  483;  s.  c,  18  Blatchf.  239; 
Hemingway  v.  Stansell,  106  U.  S. 
399,  402,  27  L.  ed.  245,  246. 

17  Hubert  v.  New  Orleans,  C.  C. 
A.,  130  Fed.  21. 

§  231.     1  Eq.  Eule  34. 

2  Quoted  with  approval  by  Hazel, 
J.,  in  Banks  Law  Pub.  Co.  v.  Law- 
yers' Co-Operative  Pub.  Co.,  139 
Fed.  701.  See  Mitf  ord 's  PI.,  oh.  1, 
§2. 

SMitford's  PL,  ch.  1,  §3;  Dan- 
iell's  Ch.  Pr.  (2d  Am.  ed.)  1653- 
1663;    Story's   Eq.   PI.,   §334;    Jen- 


kins V.  Eldredge,  3  Story,  299;  Mos- 
grove  V.  Kountze,  14  Fed.  315. 

4  Eule  29. 

6  Mitf  ord 's  PI.,  ch.  2,  §  2,  part  1; 
Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1681. 

6  Tubman  v.  Wason  Mfg.  Co.,  44 
Fed.  429;  Electrical  A.  Co.  v.  Brush 
El.  Co.,  44  Fed.  602.  See,  however, 
Davies  v.  Williams,  1  Sim.  5;  Neva- 
da Nickel  Syndicate  v.  National 
Nickel  Co.,  86  Fed.  486;  Mellor  v. 
Smither,  C.  C.  A.,  114  Fed.  116,  120. 

7  Banks '  Law  Pub.  Co.  v.  Law- 
yers'  Co-Operative  Pub.  Co.,  139 
Fed.  701;  Murray  v.  Orr  &  Locket 
Hardware   Co.,   C.   C.   A.,   153   Fed. 


§231] 


SUPPLEMKNTAL    HII.LS 


121!) 


tion  when  his  hill  was  iiled,  he  cannot  by  supplemental  bill 
bring  in  subsequent  matters  which  give  him  a  right  to  relief.* 
In  a  case  in  Massachusetts  where  a  stockholder's  bill  failed  to 
show  a  sufficient  application  to  the  directors  and  other  stock- 
holders to  bring  a  suit  in  the  name  of  the  company ;  it  was  held, 
that  subsequent  action  at  directors  and  stockholders  meetings 
showing  that  such  a  request  would  have  been  denied  could  not 
be  pleaded  by  supplemental  l)ill.^  A  supplemental  bill  is  de- 
murrable when  filed  to  introduce  a  claim  founded  upon  a  title 
entirely  distinct  from  that  in  the  original  bill ;  as,  when  a  man 
first  sued  claiming  as  heir-at-law,  and  afterwards  sought  by  sup- 
plemental bill  to  plead  a  purchase  of  the  interest  of  the  true 
heir-at-law;"  and  when  brought  against  a  person  who  neither 
had  nor  claimed  any  interest  in  the  subject-matter  of  the  original 
suit." 

Where  the  bill  is  sufficient  to  entitle  the  plaintiff  to  some  re- 
lief and  facts  subsequently  occur,  which  entitle  him  to  relief 
which  is  different  and  more  extensive,  he  may  o))tain  the  latter 
by  setting  forth  the  new  matter  in  a  supplemental  bill.^^ 

The  new  matters  must  be  germane  to  the  purpose  of  the  orig- 
inal bill,^^  and  leave  to  file  them  may  be  denied  when  they  might 
have  been  duly  pleaded  by  an  amended  bill  and  there  is  no  ex- 
cuse for  the  delay. 

Subsequent  infringements  of  a  patent,^*  even  in  a  plain  case 
by  a  different  device  from  that  charged  in  the  bill,^^  or  of  copy- 


369;  Napier  v.  Westerhoff,  ir).S  Fed. 
985;  St.  Louis  &  S.  F.  R.  Co.  v. 
Hadley,  155  Fed.  220;  Scott  v.  La- 
zell,  170  Fed.  1023. 

8  Kryptok  Co.  v.  Haussman  &  Co., 
216  Fed.  267. 

9  Bartlett  v.  N.  Y.  &  N.  H.  R.  Co., 
226  Mass.  467. 

10  Tonkin  v.  Lethbridge,  G.  Coop- 
er, 43;  Daniel! 's  Ch.  Pr.  (2d  Am. 
ed.)   1681. 

11  Baldwin  v.  Maekown,  3  Atk. 
817;  Mitford's  PI.,  ch.  2,  §2,  part 
1;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1681. 

18  Gen.  Inv.  Co.  v.  Lake  Shore 
&  M.  S.  Ry.  Co.,  C.  C.  A.,  250  Fed. 


160,   176.     But   see   Young   v.    Her- 
man, C.  C.  A.,  232  Fed.  361. 

13  Mitchell  v.  Big  Si.\  Dovelop- 
ment  Co.,  186  Fed.  552. 

14  Healey  Ice  Machine  Co.  v. 
Green,  184  Fed.  515;  Mitchell  v. 
Big  Six  Development  Co.,  186  Fed. 
552. 

16  Murray  v.  Orr  &  Lockett  Hard- 
ware Co.,  C.  C.  A.,  135  Fed.  369. 
After  the  complainant  had  finished 
taking  testimony  ln'  was  allowed  to 
file  a  supplemental  bill  setting  up 
infringements  which  had  occurred 
after  the  filing  of  the  original  bill. 
Turrell  v.  Spaeth,  9  Off.  Gaz.   1163. 

Houghton      V.      Whitin      Machine 


1220 


ABATEMENT    AND    REVIVOR 


[§231 


rights  in  the  same  series  of  books,^^  have  thus  been  pleaded.  In 
a  suit  to  restrain  the  infringement  of  a  patent,  "where  the 
patent  expires  and  is  extended  pending  the  litigation,  and  the 
infringement  by.  the  respondent  is  continued  in  respect  to  the 
extended  patent,  a  supplemental  bill  is  a  proper  pleading  to 
prolong  the  suit,  as  in  that  state  of  the  case  the  complainant  may 
well  claim,  if  he  is  the  original  and  first  inventor  of  the  improve- 
ment, to  recover  of  the  respondent  the  gains  and  profits  made  by 
the  infringement,  both  before  and  subsequent  to  the  extension; 
but  the  rule  is  otherwise  where  the  original  patent  is  sur- 
rendered, as  the  effect  of  the  surrender  is  to  extinguish  the 
patent,  and  hence  it  can  no  more  be  the  foundation  for  the  as- 
sertion of  a  right  than  can  a  legislative  act  which  has  been  re- 
pealed without  any  saving  clause  of  pending  actions.  Conse- 
quently, the  infringement  of  the  reissued  patent  becomes  a  new 
cause  of  action  for  which,  in  the  absence  of  any  agreement  or 
implied  acquiescence  of  the  respondent,  no  remedy  can  be  had 
except  by  the  commencement  of  a  new  suit."^'  Where,  how- 
ever, the  defendant  made  no  objection  to  the  complainant's  fil- 
ing a  supplemental  l)ill  setting  forth  an  infringement  of  a  re- 
issued patent,  but  filed  to  it  a  plea  similar  to  that  which  he  had 
previously  filed  to  the  original  bill,  it  was  held  that  he  had 


Works,  161  Fed.  .581 ;  Suiidh  El.  Co. 
V.  Gen.  El.  Co.,  217  Fed.  583,  Nat. 
Metal  Molding  Co.  v.  Tubular 
Woven  Fabric  Co.,  C.  C.  A.,  239 
Fed.  907;  Riverside  Hts.  Orange 
Growers '  Ass  'n,  v.  Stebler,  C.  C. 
A.,  240  Fed.  703;  J.  D.  Eandall 
Co.  V.  Fogelsong  Maeh.  Co.,  C.  C. 
A.,  216  Fed.  599,  granted  after 
hearing.  But  see  Individual  Drink- 
ing Cup  Co.  V.  Public  Service  Cup 
Co.,  234  Fed.  653;  Charles  Green 
Co.  V.  Henry  P.  Adams  Co..  C.  C. 
A.,  247  Fed.  4-85,  denied  after  a 
decree.  ' '  Such  an  application  is  a 
practice  which  seems  to  be  growing, 
and  which  I  personally  look  upon 
wuth  favor. ' '  Hough,  J.,  in  Gordoni 
Turco  Holvaty  Co.,  233  Fed.  430, 
432.      It    has    been    held    that    the 


complainant  is  not  bound  to  bring 
such  new  method  of  infringement 
into  the  original  suit  and  that  a 
judgment  therein  is  no  bar  to  '  a 
subsequent  suit  l)y  him  for  the  in- 
fringement by  means  of  the  subse- 
quent device.  T.  B.  Wood 's  Sons 
Co.  V.  Valley  Iron  Works,  198  Fed. 
869.  See  supra,  §186;  infra, 
§§  89a,  431. 

16  Banks '  Law  Pub.  Co.  v.  Law- 
yers'  Co-Operative  Pnb.  Co.,  139 
Fed.  701. 

17  Clifford,  J.,  in  Reedy  v.  Scott, 
23  Wall.  352,  364,  365,  23  L.  ed. 
109,  110,  111.  See  also  Fry  v. 
Quinlan,  13  Blatehf.  205;  Jones  v. 
Barker,  11  Fed.  597.  But  compare 
Woodworth  v.  Stone,  3  Story,  749; 
Reay  v.  Raynor,  19  Fed.  308. 


§231J 


SUPPLEMENTAL    BILLS 


1221 


waived  his  right  to  object  upon  appeal  that  the  suit  was  im- 
properly continued,  and  that  an  original  bill  should  have  been 
filed." 

After  the  institution  of  suits  to  enjoin  the  cnforcemeint  of 
State  statutes  fixing  freight  rates,  supplemental  bills  to  enjoin 
the  enforcement  of  subsequent  statutes  fixing  passenger  rates  " 
and  to  enjoin  proceedings  in  the  State  court  to  obtain  an  adjudi- 
cation there  of  the  question  previously  pending  in  the  Federal 
court,^''  have  been  permitted.  In  an  extraordinary  case,  where 
creditors  had  sued  to  preserve  a  corporation's  equity  of  re- 
demption, praying  that  if  the  situation  did  not  change  a  city 
might  be  made  a  party  and  an  injunction  granted  to  prevent 
municipal  acts  that  would  impair  street  railway  franchise;  a 
supplemental  bill  was  allowed  to  show  subsequent  negotiations 
with  the  city  and  subsequent  municipal  acts.^i  Where,  after  a 
decision  forbidding  a  city  to  impair  a  franchise,  it  adopted  a 
resolution  limiting  the  franchise  in  another  way  than  that  pre- 
viously threatened;  it  was  held  proper  to  plead  the  adjudica- 
tion and  test  the  validity  of  the  last  ordinance  by  a  supplemen- 
tal bill.22 

A  forfeiture  of  the  defendant's  franchise  pending  a  suit  for 
an  injunction  may  be  pleaded  by  supplemental  bill.^^  A  bill 
to  enjoin  the  enforcement  of  a  municipal  ordinance  authorizing 
a  street-railroad  company  to  condemn  for  its  use  certain  parts  of 
the  track  of  another  corporation  was  entertained  by  a  Circuit 
Court  of  the  United  States  upon  the  ground,  that  the  violation 
of  a  previous  grant  to  the  latter  company,  w^hich  complainant  al- 
leged, impaired  the  obligation  of  a  contract.  It  was  held:  this 
did  not  give  that  court  jurisdiction  to  decide  a  question  arising 


ISKeedy  v.  Scott,  23  Wall.  352, 
23  L.  ed.  109. 

19  Missouri  Rate  Cases,  230  U.  S. 
474;  St.  Louis  &  S.  F.  R.  Co.  v. 
Hadley,  155  Fed.  220.  So,  when  the 
statute  in  force  at  the  beginning  of 
the  suit,  -which  authorized  public  of- 
ficers to  sue,  to  enforce  the  same, 
was  repealed  and  a  new  law  enacted 
sub.icet  to  the  same  objections, 
which  provided  that  private  persons 
might  sue  because  of  its  violation. 
Fed.   Prac.   Vol.   II— 7 


Central  of  Georgia  Ry.  Co.  v.  Rail- 
road Com.   of  Ala.,   IGl   Fed.  925. 

20  Missouri  Pac.  Ry.  Co.  v.  Jones, 
170  Fed.  124. 

21  U.  S.  V.  Toledo  Newspaper  Co., 
220  Fed.  458,  463. 

22  City  of  Omaha  v.  Omaha  El. 
Lt.  &  P.  Co.,  C.  C.  A.,  255  Fed. 
801. 

23  Rio  Grande  Dam  &  Irrigation 
Co.  V.  U.  S.,  215  U.  S.  266,  269,  54 
L.  ed.  190,   192. 


1222 


ABATEMENT    AND    REVIVOR 


[§  281 


on  a  supplemental  bill  as  to  the  right  of  condemnation  by  the 
former  company  under  its  charter,  pursuant  to  which  the  city 
determined,  pending  the  suit,  that  the  streets  were  not  wade 
enough  for  two  companies  to  lay  tracks  side  by  side ;  because 
the  matter  involved  was  beyond  the  scope  of  the  controversy, 
which  gave  the  court  jurisdiction  of  the  ease  originally.^*  The 
prosecution  of  a  suit  in  a  State  Court,  which  would  interfere 
with  the  execution  of  a  decree  in  a  suit  of  which  a  Federal  Court 
had  prior  jurisdiction,  was  restrained  upon  a  supplemental  bill 
although  the  plaintiff  in  the  State  suit  was  not  a  party  in  the 
Federal  Court.^^  In  a  patent  case,  brought  by  an  exclusive  as- 
signee, he  was  allowed  to  show  by  a  supplemental  bill  that  pend- 
ing the  suit  the  patent  had  been  assigned  to  him.^^ 

When  an  event  happens  subsequently  to  the  filing  of  an  orig- 
inal bill  which  gives  a  new  interest  in  the  matter  in  dispute  to 
any  person,  whether  or  not  already  a  party,  without  depriving 
of  their  interest  all  of  the  original  plaintiffs  suing  in  their  own 
right,  the  defect  arising  from  this  event  may  be  supplied  by  a 
supplemental  bill.^''' 

Where  a  board  of  directors  seek  to  dismiss  a  suit  by  a  corpora- 
tion, minority  stockholders  may  be  allowed  to  come  in  by  sup- 
plemental bill,  and  to  continue  the  suit  in  their  own  right,  and 
at  their  own  expense,  upon  compliance  with  Equity  Rule  27.^^ 


24  Mercantile  Trust  &  Deposit 
Co.  V.  Collins  Park  &  Belt  Co.,  107 
Fed.  762.  See  August  Buseli  &  Co. 
V.  Webb,  122  Fed.   665,   662. 

25  St.  Louis,  I.  M.  &  S.  Ey.  Co.  v. 
Bellyamy,  211  Fed.  172. 

26  0watonna  Mfg.  Co.  v.  F.  B. 
Fargo  &  Co.,  94  Fed.  519;  Banks 
Law  Pub.  Co.  V.  Lawyers'  Co-Opera- 
tive  Pub.  Co.,  139  Fed.  701,  a  cojiy- 
right  case. 

27  Quoted  witli  approval  by  Hazel, 
J.,  in  Banks'  Law  Pub.  Co.  v.  Law- 
yers' Co-Operative  Pub.  Co.,  139 
Fed.  701.  See  Hobson  v.  McArthur, 
16  Pet.  180;  Daniell's  Ch.  Pr.  1663- 
1675;  Story's  Eq.  PI.,  §§336-343; 
Mitf brd  's  PI.,  ch.  1,  §  3.  It  has 
been    held    that    supplemental    bills 


may  be  filed  to  plead  the  removal, 
subsequent  to  the  original  bill,  of 
liens  which  were  obstacles  to  part 
of  the  plaintiff's  claim  (Sheffield  & 
B.  I.  &  Ey.  Co.  V.  Newman,  C.  C.  A., 
77  Fed.  787),  and  to  plead  an  elec- 
tion to  declare  the  principal  of  a 
mortgage  due,  made  subsequent  to 
the  original  bill  to  foreclose  for  a 
default  in  interest.  (Seattle,  L.  S. 
&  G.  Ey.  Co.  V.  Union  Tr.  Co.,  79 
Fed.  179)  ;  or  to  plead  subsequent 
defaults  in  interest.  N.  Y.  Security 
&  Tr.  Co.  V.  Lincoln  Stone  Ey.  Co., 
74  Fed.  67.  See  also,  s.  c,  77  Fed. 
525. 

28  Eagle   Iron   Co.   v.   Colyar,   156 
Fed.  954.     See  supra,  §  145. 


§231]  8lim'lemi:ntal  BILLS  12*2:5 

Where,  pending  a  foreclosure  suit,  a  majority  of  the  bond- 
holders, ill  accordance  with  the  trust  deed,  removed  the  trustee, 
who  had  brought  the  suit,  and  appointed  another  in  his  place; 
the  latter  was  permitted  to  file  a  supplemental  bill  to  procure 
his  substitution  as  complainant,  when  there  appeared  to  be  no 
fraud  in  his  appointment.^^  Where,  after  a  small  minority 
stockholder  had  filed  a  bill  to  enjoin  a  consolidation  of  his  cor- 
poration with  anotlier,  the  consolidation  was  effected  and  bonds 
to  a  large  amount  secured  by  mortgage  were  issued  by  the  con- 
solidated company ;  the  court  refused  leave  to  file  a  supplemen- 
tal bill  to  set  aside  the  mortgages.^"  Where  a  holder  of  stock 
and  bonds  filed  a  bill  on  behalf  of  all  stockholders  to  set  aside 
an  invalid  assignment  and  for  a  determination  of  the  status  of 
the  bonds,  whereupon  a  judgment  creditor  intervened  and  con- 
tested the  whole  bond  issue ;  plaintiff  was  permitted  to  file  a 
supplemental  bill  praying  for  a  determination  of  the  validity 
of  the  bonds.^^ 

A  remainderman  may  also,  in  this  same  manner,  be  made  a 
party  to  a  suit  brought  by  or  against  a  tenant  in  tail  upon  the 
determination  of  the  latter 's  estate,  and  the  acquisition  by  the 
former  of  the  present  interest  to  the  property  in  litigation.'^ 
A  supplemental  bill  which  brings  in  a  new  party  may  be  original 
as  to  him,  but  supplemental  as  to  the  rest.''  If,  pending  a  suit, 
a  tenant  in  tail  of  an  estate  thereby  affected  by  it  is  born ;  '*  or 
if,  pending  a  suit  against  a  husband  and  wife  concerning  the 
latter 's  estate,  the  man  dies,  and  the  wife  thus  accpiires  a  new 
interest;  '^  or  if  one  of  two  or  more  plaintiffs  suing  in  their  own 
right  is  entirely  deprived  of  his  interest,  by  any  other  event 
than  an  assignment  of  it ;  '^  or  if  the  interest  of  a  sole  plaintiff 
suing  in  a  representative  capacity  entirely  determines  by  death 
or  otherwise,  and  some  other  person  becomes  entitled  to  the  same 
property  under  the  same  title,'"''  the  defect  in  the  suit  thereby 

29  March  v.  Komaie,  C.  C.  A.,  IIC  33  Mitford's  PI.,  ch.  1,  §3. 
Fed.   355.  34  Mitford's  Tl.,  eh.  1,  §  3. 

30  Williamson  v.  Collins,  a  q.,  A..  36  Danioll 's  Cli.  Pr.  (2d  Am.  od.>. 
283  Fed.  8.15.                               '    '  1663. 

31  Gen.  Inv.  Co.  v.  Lake  Shore  36  Mitford's  PI.,  di.  1,  S3;  Dau- 
&  M.  S.  Ry.  Co.,  258  Fed.  160,  178.  iell's  Ch.  Pr.   (2d  Am.  ed.)    1664. 

32  Lloyd  V.  Johnes,  9  Ves.  37;  37  Mitford's  PI.,  ch.  1.  S3;  Dan- 
Daniell's  Ch.  Pr.  (2d  Am.  ed.),  iell's  Ch.  Pr.  (2d  Am.  ed.)  1665: 
1668-1672.  Marriott   v.   Tarpley,  9   Sim.  279. 


1224 


ABATEMENT    AND    REVIVOR 


[§231 


occasioned  must  be  cured  by  a  supplemental  bill.  So,  if  pend- 
ing a  suit  a  party  becomes  a  lunatic,  or  if  pending  a  suit  by  or 
against  a  lunatic  and  his  committee  a  new  committee  is  ap- 
pointed, the  committee  should  be  brought  in  by  a  supplemental 
bill.^^  A  supplemental  bill  may  be  filed  after  a  decree  in  aid  of 
the  same;  as,  it  has  been  held,  by  a  purchaser  at  a  foreclosure 
sale  to  enjoin  an  attack  upon  his  title  by  proceedings  in  a  State 
court  by  privies  to  the  original  suit,  such  as  stockholders  or 
creditors,^^  and  to  enjoin  the  taking  possession  of  property  to 
which  the  complainant  is  entitled  under  the  decree,*®  or  to  en- 
force a  decree  by  consent.*^ 

Before  the  act  of  February  8th,  1899,*2  it  was  held :  that  the 
successor  in  office  of  a  cabinet  officer  could  not  be  substituted  for 
him  in  a  suit  for  an  injunction,  and  for  a  decree  directing  the 
issue  of  a  patent ;  ^  but,  that  a  supplemental  bill  might  be  filed 
to  enjoin  a  State  Attorney-General  from  continuing,  in  the  State 
court,  a  suit,  the  prosecution  of  which,  by  his  predecessor,  had 
been  enjoined.** 

A  stranger  to  the  suit  who  might  be  estopped  by  the  final  de- 
cree cannot  be  made  a  party  by  supplemental  bill.*^  After  an 
interlocutory  decree  for  an  injunction  and  an  accounting  in  a 
patent  suit,  and  the  conclusion  of  the  accounting  thereunder; 
the  court  refused  to  permit  the  complainant,  by  a  supplemental 
bill,  to  bring  in  the  officers  and  directors  of  the  defendant,  in 
order  to  charge  them  with  individual  liability  upon  the  final 
decree.*^  But  where  such  officers  were  originally  made  parties, 
proof  that  since  the  commencement  of  the  suit  the  corporation 
has  become  insolvent  and  has  transferred  its  property,  may  be 
received  without  the  filing  of  a  supplemental  bill.*''^ 


SSMitford's  PI.,  ch.  1,  §3;  Dan- 
iell's  Ch.  Pr.  (2d  Am.  ed.)   1664. 

39  Central  Tr.  Co.  v.  Western  N. 
C.  E.  Co.,  89  Fed.  24.  But  see 
Keokuk  &  W.  R.  Co.  v.  Scotland 
County,  152  U.  S.  318,  38  L.  ed.  457. 

40  Root  V.  Woolworth,  150  U.  S. 
401,  37  L.  ed.  1123. 

41  Chapman  v.  Yellow  Poplar 
Lumber  Co.,  C.  C.  A.,  143  Fed.  201. 

42  30  St.  at  L.  822.  Quoted  supra, 
§§174,  216. 


43  Warner  Valley  Stone  Co.  v. 
Smith,  165  U.  S.  28,  41  L.  ed.  621. 

44Prout  V.  Starr,  188  U.  S.  537, 
544,  47  L.  ed.  584,  587. 

45  G.  &  C.  Merriam  Co.  v.  Saal- 
field  &  Ogilbie,  241  V.  S.  22.  But 
see  Searchlight  Horn  Co.  v.  Am. 
Graphaphone  Co.,  240  Fed.  745. 

46  H.  C.  Cook  Co.  V.  Little  River 
Mfg.  Co.,  56  Fed.  676. 

47  Saxlehner  v.  Eisner,  140  Fed. 
938. 


§  231]  SUPPLEMENTAL   BILLS  122r) 

F*ending  a  suit  to  restrain  a  house-owner  from  interfering 
with  complainant's  wires  by  moving  his  building  along  a  street, 
leave  was  refused  to  file  a  supplemental  bill  against  other  house- 
movers  moving  other  houses  on  the  same  road  over  the  same 
street  under  separate  permits.'*^  Assignees  of  defendants  en- 
joined from  using  a  trade-mark,  who  use  the  mark,  but  do  not 
base  their  claim  to  use  it  on  any  rights  supposed  to  be  derived 
from  the  original  defendants,  cannot  be  brought  into  the  orig- 
inal suit  by  supplemental  bill.'*^  A  bill  by  a  surviving  partner 
to  settle  the  partnership  affairs  is  a  separate  and  distinct  pro- 
ceeding from  a  suit  subsequently  brought  by  the  same  party 
to  subject  real  estate  of  the  deceased  partner  to  the  payment  of 
debts  held  by  his  heirs,  and  the  statute  of  limitations  cannot 
be  avoided  by  styling  the  second  bill  a  supplemental  bill.^**  Ac- 
cording to  Lord  Redesdale,  upon  the  death  of  one  suing  in  be- 
half of  himself  and  others  in  the  same  position  with  him,  if  his 
representative  do  not  choose  to  file  a  bill  of  revivor,  any  one  of 
the  class  on  behalf  of  whom  he  sued  may  revive;  ^^  but  it  seems 
that  a  more  proper  course  would  be  for  the  one  wishing  to  con- 
tinue the  suit  to  do  so  by  means  of  a  supplemental  bill,  which 
he  can  only  obtain  leave  to  file  upon  notice  to  the  representatives 
of  the  deceased  plaintiff,  as  well  as  to  the  defendants. ^^  Where, 
however,  a  suit  brought  by  one  in  a  representative  capacity  be- 
comes defective  by  his  death,  and  another  acquires  the  right  to 
continue  it  under  a  different  title, — as  upon  the  death  of  an  ex- 
ecutor or  administrator  succeeded  by  an  administrator  cle  lonis 
non,  according  to  Lord  Redesdale  and  Daniell,  the  latter  may 
continue  by  a  bill  of  revivor,*^  according  to  Judge  Story,  only 
by  a  bill  in  the  nature  of  revivor ;  5*  in  no  case  by  a  supple- 
mental bill.  It  has  been  held  that  in  a  case  where  the  defendant 
is  entitled  to  affirmative  relief  in  his  answer  without  a  cross- 
bill, as  a  suit  under  Section  4918  of  the  Revised  Statutes,  the 

48  Edison  El.  Light  &  Power  Co.       4  Madd.  392;   Dauiell's  Ch.  Pr.   (2d 
V.  Blomquist,  185  Fed.  615.  Am.   ed.)    1671,    1672;    Story's   Eq. 

49  Dadirrian    v.    Gullian,    80    Fed.       PI,  §  265. 

986.  53Mitfor(T's  PI.,  ch.  2,  §  3 ;   Dan- 

50  White  V.  Miller,  158  U.  S.  128,       iell's   Ch.    Pr.    (2d   Am   ed.)    1665; 
39  L.  ed.  921.  Owen  v.  Curzon,  2  Vern.  237;   Hug- 

61Mitford's  PI.,  ch.  1,  S3.  gins   v.   York   Buildings   Co.,   2   Eq. 

52Houlditeh    v.    Marquis    Donne-       Abr.  3,  pi.  14. 
gall,  1  S.  &  S.  491;  Dixon  v.  Wyatt,  54  Story 's   Eq.   PI.,   §  382,  n.    1. 


1226  ABATEMENT    AND    REVIVOR  |  §  232 

complainant  may  plead  in  a  supplemental  bill  any  matter  in 
defense  to  such  a  claim  for  affirmative  relief,  that  he  might  have 
pleaded  by  supplemental  answer  to  a  cross-bill,  had  one  been 
filed.^^  A  supplemental  bill  must  not  be  inconsistent  with  the 
original  bill.  Thus,  where  the  original  bill  stated  that  the  de- 
fendants claimed  to  be  a  corporation,  but  were  not  incor- 
porated, it  was  held  improper  to  file  a  supplemental  bill  claim- 
ing relief  upon  the  ground  that  the  defendants  were  a  corpora- 
tion.^^ Where  the  original  bill  against  a  corporation  prayed  an 
injunction  and,  as  incidental  relief,  a  receiver,  and  the  defend- 
ant was  dissolved  by  proceedings  in  a  State  court,  after  the  issue 
of  an  inquisition,  but  before  the  appointment  of  a  receiver,  a 
supplemental  bill  seeking  to  continue  the  injunction  against  the 
liquidators  was  held  improper.^'''  A  defective  original,  caunot 
be  cured  by  new  matter  subsequently  arising,  set  forth  in  a  sup- 
plemental bill,  such  as  the  entry  of  judgment  in  favor  of  the 
plaintiff  subsequent  to  his  filing  a  creditor's  bill.^^  The  only  ex- 
ceptions to  this  rule  are  the  probate  of  a  will,  or  obtaining  let- 
ters of  administration  by  a  party  who  has  sued  as  executor  or 
administrator,  and  a  few  other  cases  of  the  perfection  of  an  in- 
choate right. ^® 

§  232.  Parties  and  frame  of  a  supplemental  bill.  As  a  gen- 
eral rule,  all  parties  to  the  original  suit  must  be  made  such  to 
a  supplemental  bill  filed  to  supply  a  defect  in  it,^  unless  such  a 
bill  be  filed  to  bring  in  a  mere  formal  defendant,  or  to  allege 
matter  which  cannot  possibly  affect  a  decree  against  more  than 
one  defendant,  when  the  others  need  not  be  made  parties  to  it.^ 
An  objection  for  want  of  parties  must,  however,  be  made  by 
motion  to  dismiss,  answer,  or  when  the  motion  for  leave  to  file 

56  Electrical   A.   Co.   v.   Brush   El.  69  Supra,  §  212. 

Co.,  44  Fed.  602,  607  §232.     1  Danieirs     Ch.     Pr.     (2d 

66  Maynard  V.  Green,  30  Fed.  643.  Am.   ed.)    1678;    Jones   v.   Jones,    3 

57  Lang  v.  Louisiana  Canning  Co.,  Atk.  217;   Dyson  v.  Morris,  1  Hare, 
56  Fed.  675.  413;   Jones  v.  Howells,  2  Hare,  342. 

68  Putney    v.    Whitmore,    66    Fed.  2  Greenwood   v.    Atkinson,   5   Sim. 

385;    Neubert  v.   Massman,   37   Fla.       419;   Dyson  v.  Morris,  1  Hare,  413; 
91,  19  So.  625;  Heffron  v.  Knicker-       Wilkinson  v.  Fowkes,  9  Hare,  193; 
bocker,  57  111.  App.  339 ;  N.  Y.  Se-       Story  's  Eq.  PI.,  §  343. 
curity   &   Tr.   Co.   v.   Lincoln   Street 
Ey.  Co.,  74  Fed.  67.     But  see  s.  c, 
77  Fed.  525. 


§232] 


PARTIES    AND    FRAME    OF    SUPPLEMENTAL    HILL 


1227 


the  bill  is  argued.  It  may  be  too  late  to  make  it  at  the  hearing.^ 
If  the  court  had  jurisdiction  of  the  original  bill  it  will  take 
jurisdiction  of  the  supplemental  bill,  no  matter  what  may  be 
the  citizenship  of  the  new  parties;*  provided  at  least  that  they 
have  a  right  to  sue  and  be  sued  in  a  Federal  eourt.^  A  "sup- 
plemental bill  must  state  the  original  bill,  and  the  proceedings 
thereon,  and  if  the  supplemental  bill  is  occasioned  by  an  event 
subsequent  to  the  original  bill,  it  must  state  that  event,  and  the 
consequent  alteration  with  respect  to  the  parties."  ^  The  Equity 
Rules  provide  that  ''It  shall  not  be  necessary  in  any  bill  of  re- 
vivor or  supplemental  l)ill  to  set  forth  any  of  the  statements  in 
the  original  suit,  unless  the  special  circumstances  of  the  case 
may  require  it.""''  This,  however,  although  copied  in  substance 
from  an  English  Chancery  order.*  is  merely  a  reaffirmance  of 
the  pre-existing  practice.^  If  the  bill  brings  in  no  new  party, 
there  is  never  any  need  of  its  containing  any  of  the  statements  in 
the  original  plead ings.^"  When,  however,  it  brings  in  a  new 
party,  as  it  is  in  fact  original  as  to  him,  it  must  state  enough  of 
the  former  proceedings  to  show  an  equity  against  him."  These 
need  not  be  averred  positively;  but  it  will  be  sufficient  to  state 
that  such  matters  were  alleged  in  the  former  1)111  or  answer,^^ 
and  only  so  much  of  tlie  original  pleadings  need  be  set  forth  as 
suffice  to  show  an  equity  against  the  new  party."  The  prayer 
of  a  supplemental  bill  is  adapted  to  the  object  for  which  it  is 
exhibited.  It  formerly  always  concluded  with  a  prayer  for 
process  in  the  usual  form.i*  Whether  this  is  now  necessary 
when  no  new  defendants  are  brought  in  may  be  doubted."     It 


3  Jones  V.  Jones,  3  Atk.  217. 

4  Minnesota  Co.  v.  St.  Paul  Co., 
2  Wall.  609,  17  L.  ed.  886.    See  §  21. 

6  See  Adams  Express  Co.  v.  Den- 
ver &  E.  G.  E.  Co.,  -16  Fed.  712; 
Omaha  H.  B.  Co.  v.  Cable  T.  Co., 
3.3  Fed.  689. 

SMitford's  PI.,  eh.  1,  §3. 

7Eq.   Eule   3.j; 
Eule  58  of  1842. 

8  See    Order    47 
August,  1841. 

SDaniell's  Ch 
1675-1678. 


copied    from    Eq. 

in    Chancery,    of 

Pr.    (2d  Am.   od.) 


lODaniell's  Ch.  Pr.  (2d  Am.  cd.) 
1675. 

11  Baldwin  v.  Maikown.  .'.  Atk. 
817;  Daniell's  Ch.  Pr.  (2a.  Am.  ed.) 
1675,  1676. 

18  Lloyd  V.  Jones,  9  Ves.  37;  Dan- 
iell's Ch.  Pr.   (2d  Am.  ed.)    1676. 

13  Tigers  v.  Lord  Audley,  9  Sim. 
72;  Attorney-General  v.  Fo.ster,  2 
Hare,  81;  Daniell's  Ch.  Pr.  (2d  Am. 
ed.)    1676,   1677. 

14  Daniell's  Cli.   Pr.  1680. 

15  See  Shaw  v.  Bill.  95  U.  S.  10. 
24  L.  ed.  333. 


1228 


ABATEMENT    AND    REVIVOR 


[§233 


should  be  signed  by  the  solicitor,!^  and  in  other  respects  con- 
form to  the  form  of  an  original  bill.!"^  Where  no  objection  to 
the  form  of  proceedings  is  made,  relief  which  regularly  should 
only  be  granted  upon  a  supplemental  bill,  may  be  allowed  upon 
a  petition."  A  supplemental  bill  may  be  filed  at  any  time  dur- 
ing the  progress  of  a  suit,  as  well  after  as  before  a  decree,^^  and 
even  during  the  pendency  of  an  appeal.^"  It  seems,  however, 
that  if  matters  which  make  it  necessary  or  advisable  were  known 
to  the  party  filing  it  before  the  entry  of  the  decree,  afterwards 
it  will  be  too  late ;  ^^  though  such  an  objection  must  be  taken 
before  the  hearing  upon  the  supplemental  bill.^^ 

§233.  Proceedings   upon   supplemental  bills.     The   Equity 
Rules  provide :    ' '  Upon  application  of  either  party  the  court  or 
judge,  may,  upon  reasonable  notice  and  such  terms  as  are  just, 
permit  him  to  file  and  serve  a  supplemental  pleading,  alleging 
material  facts  occurring  after  his  former  pleading,  or  of  which 
he  was  ignorant  when  it  was  made,  including  the  judgment  or 
decree  of  a  competent  court  rendered  after  the  commencement 
of  the  suit  determining  the  matters  in  controversy  or  a  part 
thereof."^     Where  it  is  contended  that  a  corporate  defendant 
had  ceased  to  exist,  the  pleading  or  motion  must  be  filed  by  its 
attorney  in  his  name  and  not  in  the  name  of  the  corporation.^ 
The  petition  for  leave  to  file  such  a  bill  need  not  state  the  aver- 
ments which  are  intended  to  be  inserted  therein ;  but  must  state 
sufficient  to  advise  the  opposite  parties  and  the  court  of  the 
ground  upon  which,  the  relief  is  sought.^ 


16  Eq.  Eule  24. 

IVDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1680. 

18  Coburn  v.  Ohio  Valley  Land  & 
Cattle  Co.,  138  U.  S.  196,  223,  34 
L.  ed.  876,  887. 

19Eoot  V.  Woodworth,  150  U.  S. 
§401,  37  L.  ed.  1123;  Central  Tr. 
Co.  V.  Western  N.  C.  E.  Co.,  89  Fed. 
24;  Daniell's  Ch.  Pr.  (2d  Am  ed.) 
1659,  1660;  Story's  Eq.  PL,  §§333, 
338a;  2  Barbour's  Ch.  Pr.  167; 
0  'Hara  v.  Shepherd,  3  Md.  Ch.  Deo. 
306;  Jenkins  v.  Eldredge,  3  Story, 
299;     Woodward    v.    Woodward,    1 


Dick.  33;  Dormer  v.  Fortesque,  3 
Atk.  124;  Secor  v.  Singleton,  41 
Fed.  725. 

20  Woodward     v.      Woodward,      1 
Dick.  33. 

21  Pendleton  v.  Fay,  3  Paige   (N. 
Y.)  204;  Story's  Eq.  PL,  §  338a. 

22  Fulton  Bank  v.  N.  Y.  &  S.   C. 
Co.,  4  Paige  (N.  Y.)   127. 

§  233.     1  Equity  Eule  34. 

2  Culpeper  Nat.  Bank  v.   Tidewa- 
ter Imp.  Co.,  89,  S.  E.  118. 

3  Parkhurst  v.  Kinsman,  2  Blatchf . 
C.  C.  72. 


§  233]  PROCEEDINGS    UPON    SUPPLEMENTAL   BILLS  1229 

Before  the  Equity  Rules  of  1912,  it  was  held  that  upon  the 
return  of  the  order  to  show  cause  an  objection  which  was  a 
proper  ground  for  a  demurrer  could  not  be  raised.*  The  ob- 
jection that  a  supplemental  bill  was  filed  without  leave  was  not 
a  ground  of  demurrer,  but  only  for  a  motion  to  dismiss  which 
rested  in  the  discretion  of  the  court.^  A  motion  would  not  lie 
to  take  a  supplemental  bill  off  the  file  for  irregularity  upon  the 
ground  that  it  did  not  state  supplemental  matter. ^  The  proper 
course  in  such  a  case  was  to  demur,  or  to  object  to  the  order 
allowing  it  to  be  filed."'' 

Such  motion  might,  however,  be  granted  if  a  bill  filed  should 
be  different  from  that  which  the  order  allowed.  A  supplemental 
bill  filed  without  leave  may  by  a  subsequent  order  be  allowed 
to  remain  on  file.^  No  subpoena  need  be  issued  upon  a  supple- 
mental bill,  unless  new  defendants  are  to  be  brought  in;  and 
then  they  only  need  be  served  with  process.^  Such  a  subpoena 
is  in  the  same  form  as  one  issued  upon  the  filing  of  an  original 
bill,  except  that  it  specifies  the  nature  of  the  bill  upon  which 
it  is  issued. ^° 

A  demurrer  to  a  supplemental  bill  was  in  general  subject  to 
the  same  rules  except  as  to  time  of  filing  the  same,  and  would 
lie  for  the  same  reasons  as  if  the  bill  were  original ;  "  but  there 
were  some  grounds  of  demurrer  peculiar  to  bills  of  this  class. 
Thus,  a  demurrer  would  lie  if  it  appeared  upon  the  face  of  the 
bill  that  it  pleaded  matters  which  occurred  before  the  institu- 
tion of  the  suit,  and  which  it  was  not  too  late  to  insert  by  amend- 
ment into  the  original  bill.^^  a  supplemental  bill  was  demur- 
rable where  it  showed  on  its  face  that  the  plaintiff  knew  the 
facts  therein  alleged  before  his  time  to  amend  had  expired.^' 
A  supplemental  bill  was  demurrable  if  when  filed  after  a  de- 

4 Oregon  &  Trans.  Co.  v.  N.  Pac.  10  Daniell's  Ch.  Pr.   (2d  Am.  ed.) 

Ey.  Co.,  32  Fed.  428.  1680. 

5  Henry  v.  Travelers'  Ins.  Co.,  4."5  H  Daniell's  Ch.  Pr.   (2d  Am.  ed.) 

Fed.  299    303.  1681;    Secor   v.    Singleton,    41    Fed. 

CBowyer  v.  Bright,  13  Price,  316;  725. 

Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1RS2.  12Mitford's   PL,   ch.   2,    §2.   part 

Tll^id.  1;    Story's  Eq.  PI.,   §614;   Stafford 

8  Mackintosh  v.  Flint  &  P.  M.  R.  v-  Howlett,  1  Paige  (X.  Y.),  200. 
Co.    34  Fed.  582.  ^'  Henry    v.    Travelers '    Ins.    Co., 

9  Shaw  V.  Bill.   95   U.   S.   10,   14  45  Fed.  299,  302. 
24  L.  ed.  333,  334. 


1230 


ABATEMENT    AND    REVIVOR 


[§233 


cree  for  an  account  it  pleaded  matter  which  it  showed  that  the 
phiintift"  knew  before  the  decree.^*  An  allegation  made  as  a  basis 
for  relief  not  within  the  scope  of  the  original  bill  is  no  ground 
for  the  dismissal  or  striking  out  of  the  supplemental  bill/^  al- 
though the  court  will  refuse  to  grant  such  new  relief  "  except 
under  special  circumstances.^' 

Any  objections  to  a  supplemental  bill  which  do  not  appear 
upon  its  face  may  be  taken  by  answer,  which,  in  general,  is  sub- 
ject to  the  same  rules  as  answers  to  original  bills.^^  If  a  defend- 
ant has  not  answered  the  original  bill,  his  successor  may  be 
called  upon  in  the  supplemental  bill  to  do  so.^*  When  that  is 
done,  the  usual  course  is  to  include  the  answer  to  the  original 
and  that  to  the  supplemental  bill  in  the  same  pleading,20  al- 
though it  is  not  absolutely  irregular  to  separate  them.^i  ^  (de- 
fense cannot  be  pleaded  to  a  supplemental  bill  which  has  previ- 
ously been  pleaded  to  the  original  bill  and  overruled.^^  Before 
the  Equity  Rules  of  1912,  if  the  plaintiff  wished  to  join  issue 
upon  averments  in  the  answer,  he  might  file  a  replication  to 
it. 2^  If  the  new  matter  in  the  supplemental  bill  is  not  admitted, 
it  must  be  proved,  or  tlie  bill  will  be  dismissed  with  costs.^*  For 
this  purpose  evidence  may  be  taken  and  a  hearing  had  as  upon 
an  original  bill.^^  Discovery  might  be  obtained  by  a  supple- 
mental bill.^^  If  there  has  been  no  previous  hearing  and  decree, 
both  bills  may  be  brought  to  a  hearing  together,  and  a  single 
decree  will  suffice  for  both.^'''    If  the  supplemental  bill  is  heard 


14 Henry  v.  Travelers'  Ins.  Co.,  45 
Fed.    299,    303. 

15  Whitaker  v.  Whitaker,  Iron  Co., 
238  Fed.  980. 

16  Ibid. 

17  See  General  Inv.  Co.  v.  Lake 
Shore  &  M.  S.  Ey.  Co.,  C.  C.  A., 
2.50   Fed.   160.     See   supra,   §  231. 

ISDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1682. 

19Vigers  v.  Lord  Audley,  9  Sim. 
408. 

20  Vigers  v.  Lord  Audley,  9  Sim. 
408. 

21  Sayle  v.  Graham,  5  Sim.  8. 

22  Pentlarge  v.  Pentlarge,  22  Fed. 


412;   Scott  V.  Lazell,  177  Fed.  608. 

23Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1683;  Perkins  v.  Hendryx,  31  Fed. 
522. 

24Danieirs  Ch.  Pr.  (2d  Am.  ed.) 
1683;  Pedrick  v.  White,  1  Met. 
(Mass.)  76. 

25  Lloyd  V.  Jones,  9  Ves.  27, 
Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1683. 

26  Mitf  ord  's  PI.  eh.  1,  §  3  ;  Dan- 
iell's  Ch.  Pr.  (2d  Am.  ed.)  1684, 
1685. 

27  Daniell's  Ch.  Pr.  (2d  Am.  ed.} 
1684;  Turrell  v.  Spaeth,  9  Off.  Gaz. 
1663. 


§  234]  BILLS    IN    NATURE   OF   SUPPLEMENTAL    lilLLS  1231 

alone,  the  evidence  taken  in  tlie  original  suit  may  be  read  in 
support  of  or  in  opposition  to  it.^^ 

The  effect  of  a  supplemental  bill  when  sustained  is  to  put  the 
suit  in  the  same  condition  as  if  the  supplemental  matter  had  been 
alleged  and  the  new  party,  if  any,  brought  in  at  its  institution. ^9 

An  injunction  temporary  or  permanent  may  be  granted  upon  a 
supplemental  bill.^o  Ordinarily  such  relief  is  within  the  court's 
discretion  and  will  not  be  renewed  upon  appeal. ^i  A  bill  im- 
properly styled  a  supplemental  bill  was  dismissed  upon  a  de- 
murrer, which  specified  that  ob.jection,  although  it  might  have 
been  sustained  as  a  bill  in  the  nature  of  a  supplemental  bill.32 
Where,  pending  an  appeal,  a  supplemental  bill  was  filed;  it  was 
held,  that  a  mandate  ordering  the  dismissal  of  the  original  bill 
did  not  affect  the  supplemental  pleading.^^  The  grant,^*  or  re- 
fusal, of  permission  to  file  a  supplemental  bill  will  rarely  be  a 
ground  of  reversal  upon  an  appeal,  when  the  complainant  has 
the  right  to  file  an  original  bill  for  the  same  relief.^s  After  a 
reversal,  where  the  mandate  gives  directions  "to  grant  leave  to 
both  sides  to  adduce  further  evidence,"  the  court  of  first  instance 
has  power  to  permit  the  filing  of  a  supplemental  bill.^^ 

§234.  Bills  in  the  nature  of  supplemental  bills  in  general. 
A  bill  in  the  nature  of  a  supplemental  hill  is  a  bill  filed  to  obtain 
the  benefit  of  a  suit,  either  after  an  abatement  which  cainiot  be 
cured  by  bill  of  revivor  or  a  bill  in  the  nature  of  a  bill  of  re- 
vivor, or  after  the  suit  has  ])eeome  defective  in  cases  which  do 
not  admit  of  a  supplemental  bill  to  supply  that  defect.^     Cases 

28DanielI's  Ch.  Pr.   (2d  Am  ed.)  35  Brookfield     v.     Novelty     Glass 

1666,  1667.  Mfo^.  Co.,   C.  C.  A.,   170   Fed.  960; 

29  Ibid.  Liehiiior  v.  Matthews,  C.  C.   A.,  216 

30  J.  D.  Eandall  Co.  v.  Fogelsong,  Fed.  1 ;  General  Iiiv.  Co.  v.  Lake 
Maeh.  Co.,  C.  C.  A.,  216  Fed.  599:  Shore  &  M.  S.  Ey.  Co.,  C.  C.  A.,  250 
Charles    Green     Co.     v.     Henry    P.  l\>d.  160. 

Adams  Co.,  C.  C.  A.,  247  Fed.  485.  36  Rio  Grande   Dam   &  Irrigation 

31  Ibid.  Co.  V.  IT.  S.,  215  U.  S.  266,  268,  54 

32  Campbell  v.  New  York,  35  Fed.       L.   ed.  190,  192. 

14.      But   see    Ross    v.    City  of    Ft.           §  2.*?4.     1  Mitford  \s  PI.,  ch.  1 ,  §  ."^ ; 

Wayne,  58  Fed.  404,  406.  Campbell  v.  New  York,  35  Fed.  14; 

33  Berliner  Gramaphone  Co.  1  Tappan  v.  Smith,  5  Biss.  73.  But 
Seaman,  C.  C.  A.,  113  Fed.  750;  see  Seeor  v.  Singleton.  41  Fed.  725. 
infra,  §518.  726;   Napier  v.  Westerhoff,  153  Fed. 

34  Young  V.  Herman,  C.  C.  Ji..,  985;  Haarmann-DeLaire-ScheiTer  Co. 
232  Fed.  361.  v.  Lenders,  135  Fed.  120. 


1232 


ABATEMENT    AND    REVIVOR 


[§234 


frequently  occur  in  practice  where  the  interest  of  an  original 
party  to  a  suit  is  completely  determined,  and  another  person  be- 
comes interested  in  the  subject-matter  by  a  title  not  derived  from 
the  other,  but  in  such  a  manner  as  to  make  it  proper  that  the 
benefit  of  the  former  proceedings  should  be  had  by  or  against 
the  latter,  without  incurring  the  expense  of  commencing  an  en- 
tirely new  proceeding.     In  such  a  case,  the  benefit  of  the  for- 
mer proceedings  may  be  obtained  by  means  of  a  bill  called  an 
original  bill  in  the  nature  of  a  supplemental  bill,  or  a  bill  in  the 
nature  of  a  supplemental  bill.^    Such  a  bill  must  be  filed  to  bring 
into  a  suit  the  assignee  of  a  sole  plaintiff  who  had  acquired  his 
interest  during  its  pendency.^    The  reason  given  for  this  is  the 
doctrine  of  maintenance,  in  consequence  of  which   "it  is  not 
enough  for  the  new  plaintiff  to  state  that  his  assignor  instituted 
a   suit  and  assigned  to  him  the  benefit  of  it;  he  must   show 
that  his  assignor  had  the  property  in  respect  of  which  the  suit 
was  instituted,  and  that  property  has  been  assigned  and  carries 
with  it  the  right  to  sue."  *    Such  a  bill  may  be  brought  by  the 
assignee  of  the  complainant  to  a  bill  to  enjoin  the  infringement 
of  a  patent  and  for  an  account  of  profits  and  damages,  although 
the  assignment  was  made,  and  the  bill  in  the  nature  of  a  supple- 
mental bill  was  filed,  after  the  expiration  of  the  patent,  pending 
the  suit,  and  merely  for  the  purpose  of  collecting  damages.^    The 
assignee  was  allowed  to  give  evidence  showing  an  extension  of 
the  time  of  the  infringement  until  his  bill  was  filed.^    Where  a 
majority  of  the  bondholders  had  removed  a  trustee,  after  he  had 
brought  a  suit  for  the  benefit  of  the  minority,  the  court  refused 
lo  permit  the  new  trustee,  who  was  hostile  to  the  suit,  to  be  sub- 


2Daniell's  Ch.  Pr.    (2d  Am.  ed.) 
1685;  Mitford's  PL,  ch.  1,  §3. 

SDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1667;  Campbell  v.  New  York,  35 
Fed.  14;  Ross  v.  City  of  Ft.  Wayne, 
58  Fed.  404;  s.  c.  on  appeal,  65 
Fed.  466;  Tappan  v.  Smith,  5  Biss. 
73;  George  W.  Jackson,  Inc.,  v. 
Friestedt  Interlocking  Channel  Bar 
Co.,  159  Fed.  496;  Pittsburgh,  S.  & 
N.  E.  Co.  V.  Fiske,  C.  C.  A.,  178  Fed. 
66.  But  see  Hoxie  v.  Carr,  1  Summ. 
173;  Sedgwick  v.  Cleveland,  7  Paige 


(N.  Y.)  290;  Murray  v.  Orr  & 
Loekett  Hardware  Co.,  C.  C.  A.,  153 
Fed.  369. 

4  White  on  Supplement  and  Re- 
vivor, 126,  174;  DanloU's  Ch.  Pr. 
(2d  Am.  ed.)   1667. 

5  Ross  V.  City  of  Ft.  Wayne,  58 
Fed.  504;  s.  c.  on  appeal,  63  Fed. 
466. 

6  National  E.  Signaling  Co.  v. 
Telefunken  W.  Tel.  Co.,  208  Fed. 
679. 


§  235]  BILLS    L\    NATURE    OF    SUPPLEMENTAL    lULLS  1233 

stituted  for  the  original  plaintiff  by  a  bill  in  the  nature  of  a  sup- 
plemental bill.'' 

The  assignee  of  a  decree  for  an  injunction  and  an  account  of 
damages  caused  by  the  infringement  of  a  trade-mark  may  have 
the  benefit  of  the  suit  by  filing  an  original  bill  in  the  nature  of 
a  supplemental  bill.*  An  assignee,  who  files  a  bill  in  the  nature 
of  a  supplemental  bill,  is  ordinarily  entitled  to  the  benefit  of  all 
the  proceedings  in  the  original  suit,  as  against  the  original  de- 
fendants; but  they  may  avail  themselves  of  any  equity  or  de- 
fense, which  could  be  urged  against  the  new  complainant,  al- 
though it  did  not  exist  against  the  original  complainant;  and 
also  of  any  equity  or  defense,  which  has  arisen  since  the  original 
bill  was  filed.*  Neither  such  a  bill  nor  a  supplemental  bill  will 
be  sustained  when  filed  by  a  purchaser  of  a  railroad  at  a  fore- 
closure sale  to  obtain  the  benefit  of  a  decree  enjoining  the  collec- 
tion of  taxes  obtained  by  stockholders  in  a  suit  brought  subse- 
quent to  the  mortgage. 1°  So  where  a  defendant  dies  before  ap- 
pearance or  a  decree  against  him  pro  confesso,  his  successor 
can  only  be  brought  in  by  a  bill  in  the  nature  of  a  supplemental 
bill,  which,  however,  is  considered  merely  supplemental  as  to  the 
defendants.^^ 

Such  a  bill  may  be  filed  by  a  purchaser  of  the  complainant's 
interest  even  after  a  decree ;  ^^  but  where  the  purchase  was  made 
after  a  direction  for  a  decree,  the  bill  should  not  be  filed  until 
after  the  decree  is  entered. ^^ 

§  235.  Frame  of  a  bill  in  the  nature  of  a  supplemental  bill. 
A  bill  in  the  nature  of  a  supplemental  bill  "must  state  the 
original  bill,  the  proceedings  upon  it,  the  event  which  has  deter- 
mined the  interest  of  the  party  by  or  against  whom  the  former 
bill  was  exhibited,  and  the  manner  in  which  the  property  has 
vested  in  the  person  become  entitled.     It  must  then  show  the 

7  March  v.  Romare,  114  Fed.  200.  nv.  S.  v.  Fields  4  Blatchf.  326; 

8  "Walter  Baker  &  Co.  v.  Baker,  Crowfoot  v.  Mander,  9  Sim.  396; 
89  Fed.  673.  But  see  New  York,  Asbee  v.  Shipley,  M.  &  G.  296; 
B.  &  P.  Co.  V.  N.  J.  C.  S.  &  R.  Co.,  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
47  Fed.  504.  1673. 

» Haarmann-DeLaire-Seheffer    Co.  12  Walter  Baker  &   Co.   v.  Baker, 

V.  Leuders,  135  Fed.  120.  89    Fed.    673;    Hazclton    T.    R.    Co. 

10  Keokuk  &  S.  W.  R.  Co.  v.  Scot-  v.  Citizens '  St.  Ry.  Co.,  72  Fed.  325. 

land  County,  152  U.  S.  317,  38  L.  ed.  13  Ilazelton  T.  R.  Co.  v.  Citizens' 

457.  St.  Ry.  Co.,  72  Fed.  325. 


1234 


ABATEMENT    AND    REVIVOR 


§  236 


ground  upon  which  the  court  ought  to  grant  the  benefit  of  the 
former  suit  to  or  against  the  person  so  become  entitled,  and  pray 
the  decree  of  the  court  adapted  to  the  case  of  the  plaintiff  in  the 
new  bill. "  ^  It  will  not  be  impertinent  for  it  to  restate  allega- 
tions of  the  bill  or  answer  in  the  orig-inal  suit,  nor  to  charge  new 
matter  which  occurred  before  the  original  bill  was  filed,  for  the 
purpose  of  meeting  a  defense  in  the  original  answer.^  But  a 
bill  in  the  nature  of  a  supplemental  bill  need  contain  no  more 
of  the  allegations  in  the  original  bill  than  suffices  to  show  a  cause 
of  action  against  the  defendants  to  it.^  Otherwise,  its  form 
should  be,  as  far  as  possible,  in  compliance  with  that  of  an  origi- 
nal bill.  If,  however,  its  object  be  merely  to  obtain  the  benefit  of 
the  proceedings  in  the  original  suit,  the  want  of  the  difference  of 
citizenship  necessary  to  sujjport  an  independent  original  bill  will 
not  deprive  the  court  of  jurisdiction  of  it,  provided  the  first  suit 
were  properly  brought.*  A  l)ill,  which  complies  wdth  the  require- 
ments of  an  original  bill  in  the  nature  of  a  supplemental  bill, 
may  be  sustained  as  one,  although  it  is  styled  a  supplemental  bill,^ 
or  a  petition  of  intervention.^ 

§  236.  Proceedings  upon  bills  in  the  nature  of  supplemental 
bills.  A  bill  in  the  nature  of  a  supplemental  bill  is  filed  in 
the  same  manner  as  a  supplemental  bill,  and  the  same  rule  gov- 
erns the  time  of  the  filing  of  pleadings  to  it.^  Otherwise,  pro- 
ceedings upon  bills  in  the  nature  of  supplemental  bills  resemble 
those  upon  independent  original  bills.''  According  to  Lord 
Redesdale,  "a  new  defense  may  be  made;  the  pleadings  and 
depositions  cannot  be  used  in  the  same  manner  as  if  filed  or  taken 
in  the  same  cause ;  and  the  decree,  if  any  has  been  obtained,  is 
not  otherwise  of  advantage  than  as  it  may  be  an  inducement  to 
the  court  to  make  a  similar  decree. "  ^    As  has  been  remarked  by 


§235.     IMitford's  PI.,  cli.  1,  §3. 

2  Woods  V.  Woods,  10  Sim.  197; 
Atty  Gen.  v.  Foster,  2  Hare,  81; 
Daniell's  Ch.  Pr.  (2d  Am.  cd.)  1667, 
1668. 

3  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1675-1677;  Vigers  v.  Lord  Audley, 
9  Sim.  72. 

4  Minnesota  Co.  t.  St.  Paul  Co., 
2  Wall.  609. 

6  Haarmann-DeLaire-Scheffer     Co. 


V.  Lenders,  135  Fed.  120.  Sec  Eoss 
V.  City  of  Ft.  Wayne,  58  Fed.  404, 
406.  But  see  Campbell  v.  City  of 
New  York,  35  Fed.  14. 

6  Toledo  Metal  Wlieel  Co.  v. 
Forger  Bros  &  Co.,  C.  C.  A.,  223 
Fed.    350. 

§  236.     1  Rule   57.      See    §  233. 

2  Mexican  Ore  Co.  v.  M.  Gr.  M. 
Co.,  47  Fed.  351,  356. 

SMitford's   PI.,   ch.   1,    §3.       See 


§  236]  BILLS    LV    NATURli    OF    SUl'I'LEMENTAL    HILLS  1235 

Lord  Eldon,  this  passage  contains  an  obscurity  of  language  which 
is  due  to  an  obscurity  in  tlie  subject.*  But  the  probable  meaning 
and  the  view  of  the  matter  best  supported  by  authority  are  that 
upon  the  filing  of  what  is  called  a  bill  in  the  nature  of  a  supple- 
mental bill,  no  further  benefit  of  the  proceedings  in  the  original 
suit  can  be  obtained  than  would  be  if  it  were  styled  merely  an 
original  bill ;  and  the  evidence  and  admissions  and  the  benefit  of 
the  decree  in  the  former  suit  will  only  be  allowed  when  the  par- 
ties to  the  second  are  in  privity  with  those  to  \ho  first  snjt.^ 

O'Brien  v.  Wheelock,  184  U.  S.  450,  v.   Purdy,  162  U.  S.  329,  40  L.  ed. 

485,  46  L.  ed.  636,  652.  986.     Biit  see  George   W.   Jackson, 

4  Lloyd  V.  Jones,  9  Vcs.  37,  56.  Inc.  v.  Friestedt  Interlocking  Cliau- 

SDaniell's  Ch.  Pr.    (2d   Am.  ed.)  nol  Bar  Co.,  159  Fed.  496. 

1685,  1688;  Great  Western  Tel.  Co. 


CHAPTER  XIV. 

IMPERTINENCE  AND  SCANDAL. 

§  237.  Impertinence.  Impertinence  in  a  pleading  consists 
of  the  introduction  of  any  matter  into  the  pleading  which  is  not 
properly  before  the  court  for  decision  at  the  particular  stage  of 
the  suit.^  Facts  not  material  to  the  decision  are  impertinent.^ 
No  matter  is  impertinent  which  is  material  in  establishing  the 
rights  of  the  parties  or  in  ascertaining  the  relief  to  be  granted.^ 
If  an  allegation  in  a  bill,  when  proved,  could  exercise  any  proper 
influence  upon  the  decision  of  the  cause,  it  cannot  be  said  to  be 
impertinent.* 

Objections  for  impertinence  are  only  sustained  when  it  is  ap- 
parent that  the  matter  excepted  to  is  not  material  or  relevant  or 
that  the  same  is  stated  with  needless  prolixity.  If  it  may  be  ma- 
terial, the  objection  will  not  be  sustained,  as  that  would  leave  the 
pleader  without  a  remedy ;  but  the  allegations  objected  to  will  be 
allowed  to  remain  and  the  effect  thereof,  if  found  to  be  true,  de- 
termined on  the  final  hearing.^  Where  the  question  whether 
matter  in  an  answer  was  impertinent  or  not  depended  upon  the 
date  of  the  facts  alleged  and  the  date  was  omitted,  it  was  held 
that  the  answer  must  be  construed  against  the  pleader  and  was 
subject  to  exception  for  impertinence.®  Deductions  from  the 
facts  stated,  for  example,  allegations  concerning  the  legal  effect 
of  instruments,  are  sometimes  proper  in  equity  pleadings  and 

§237.     IBlanton      v.       Chalmers,  4  South   &  N.   A.   B.   Co.   v.   Rail- 

158  Fed.  907.  road  Commission  of  Ala.,  171  Fed. 

2  Chancellor    Kent    in    Woods    v.       225. 

Morrell,  1  J.  Ch.   (N.  Y.)   103,  106.  6  Independent  Baking  Powder  Co. 

See   also   Hood  v.   Inman,  4  J.   Ch.  v    Boorman,   130    Fed.    726;    Ware- 

(N.   Y.)    437;    Harrison   v.   City   of  Kramer  Tobacco  Co.  v.  Am.  Tobacco 

Tampa,  247  Fed.  569.  Co.,  178  Fed.  117;  ^ipra,  §  §  68,147. 

3  Manhattan  Tr.  Co.  v.  Chicago  6  Greene  v.  Aurora  Rys.  Co.,  158 
El.   Traction   Co.,   188   Fed.    1006.  Fed.  909. 

1236 


§237] 


IMPERTINENCE 


1237 


they  are  then  not  considered  to  be  impertinent^  It  has  been  said 
to  be  permissible  and  it  has  been  customary,  to  plead  in  answers 
in  equity  matters  of  law  as  well  as  matters  of  fact  that  constitute 
a  defense.*  It  is  customary  in  bills  seeking  the  protection  or  en- 
forcement of  rights  dependent  upon  complicated  provisions  of 
Federal  or  State  statutes,  to  set  forth  such  statutes,  either  at 
length  or  according  to  their  legal  effect ;  and  when  the  complain- 
ant depends  upon  historical  facts,  of  which  the  court  will  take 
judicial  notice,  to  state  such  facts  also.  But  allegations  that  a 
State  Statute  was  unconstitutional  which  were  clearly  unfounded 
were  stricken  out  as  impertinent.®  So  were  allegations  of 
grounds  of  complaint  not  within  the  jurisdiction  of  the  court. ^° 
Sometimes,  especially  in  patent  cases,^^  former  decisions  of  the 
court  are  pleaded.  Although  this  practice  is  not  strictly  correct, 
it  is  still  convenient  for  the  court  as  well  as  counsel,  inasmuch  as 
the  case  shown  by  the  bill  is  thereby  made  more  easy  of  compre- 
hension. It  seems  that  exceptions  to  such  allegations  for  im- 
pertinence cannot  be  sustained. ^^     So,  in  a  patent  case,  allega- 


7  Allen  V.  O  'Donald,  23  Fed.  573 ; 
Louisville  &  N.  E.  Co.  v.  Wright, 
190  Fed.  252. 

8  Deady,  J.,  Chapman  v.  School 
Dist.  No.  1,  Deady,  108,  110.  See, 
also,  Louisville  &  N.  E.  Co.  v. 
Wright,  190  Fed.  252. 

9  Everglades  Drainage  League  v. 
Napoleon  B.  Broward  Drainage 
Dist.,  253  Fed.  246,  251. 

10  Ibid.  See  Motion  Picture  Pat- 
ents Co.  V.  Eclair  Film  Co.,  208  Fed. 
416. 

11  Steam  Gauge  &  Lantern  Co.  v. 
McEoberts,  26  Fed.  765;  Peters  v. 
Chicago  Biscuit  Co.,  142  Fed.  779. 
But  see  Nickola  Tesla  Co.  v.  Mar- 
coni Wireless  Tel.  Co.  of  America, 
227  Fed.  903;  Bayley  &  Sons  v. 
Blumberg,  C.   C.  A.,  254,  Fed.   696. 

It  was  held  not  to  be  impertinent 
when  a  complaint  charged  fraud  in  a 
partition  suit,  for  the  answer  to  set 
forth  facts  to  show  the  good  faith 
and  regularity  of  the  proceedings  in 
Fed.   Prac.   Vol.   II— 8 


the  same.  Mound  City  Co.  v.  Castle- 
man,  171  Fed.  520.  Nor,  when  a 
bill  referred  to  a  decision  of  a  court, 
for  the  answer  to  aver  that  it  in- 
volved no  consideration  of  a  ques- 
tion in  the  pending  suit  and  had  no 
relation  thereto.  Louisville  &  N.  E. 
Co.   v.   Wright,   190   Fed.   252. 

12AVells  v.  Oregon  Ey.  &  N.  Co., 
15  Fed.  561;  s.  c,  8  Sawyer,  600; 
Allen  V.  O 'Donald,  23  Fed,  573; 
Steam  Gauge  &  Lantern  Co.  v.  Mc- 
Eoberts, 26  Fed.  765;  Peters  v. 
Chicago  Biscuit  Co.,  142  Fed.  779; 
Ware-Kramer  Tobacco  Co.  v.  Am. 
Tobacco  Co.,  178  Fed.  117;  South  & 
N.  A.  E.  Co.  V.  Eailroad  Commis- 
sion of  Ala.,  171  Fed.  225.  But  see 
W.  U.  Tel.  Co.  v.  Louisville  &  N. 
E.  Co.,  C.  C.  A.,  250  Fed.  199.  200. 

In  a  bill  to  enjoin  the  enforce- 
ment of  an  order  of  a  State  rail- 
road commission  for  the  reduction 
of  railroad  charges,  an  allegation 
that    the    reduction    was    made    at 


1238 


IMPERTrNENCE    AND    SCANDAL 


[§237 


tioiis  coucerniiig  the  issue  of  foreign  patents  and  the  acquiescence 


the    instance    of    the    governor    who 
was  not  a  member   of  the  commis- 
sion;     and      quotations      from      his 
message     to     the     legislature,     and 
averments    that   he    had    in    an    ad- 
dress   to    the    commission    attacked 
a    decision    of    the    Supreme    Court 
of    the    United     States    in     violent 
language,   were    all   held   to   be   im- 
pertinent;   but   a    statement   of    the 
action  of  tlie   defendant 's  predeces- 
sors   upon    the    same    subject,    and 
of  the  defendant's  inaction   against 
other   railroad   companies,   was    held 
to  be  relevant  and  not  impertinent. 
Wilmington   &  W.  R.   Co.   v.  Board 
of  E.  Com'rs,  90  Fed.  33.    See  Ein- 
stein V.  Schnebley,  89  Fed.  540.     In 
a    suit   by    a   commercial   exchange, 
to     restrain    the     counterfeiting    or 
simulating    of   prices   of    grain   and 
pork,  it  was   held:    that   it  was  ivi- 
pertinent    to    allege   the   number    of 
members    of    the    complainant,    the 
cost  of  maintaining  and  conducting 
its  operations,  the  manner  in  which 
the  necessary  funds  were  raised,  tlie 
market  value  of  a  seat  therein,  the 
character  of  the  persons  who  might 
be  admitted,  the  relations  and  con- 
tracts     between      the      complainant 
and     certain     telegraph     companies, 
with     which     it     was     not     claimed 
that    the  defendants    were     in    any 
way    connected;     and    that    no    per- 
son   or    corporation    was    receiving 
market     quotations     from     any     of 
the    telegraph    companies    specified, 
without       having       executed       com- 
plainant "s      written      contract      re- 
straining   the     furnishing     of     such 
quotations    to    bucket    shop    opera- 
tors; but  that  paragraphs  were  not 
impertinent,   which   contained   a   re- 
cital of  the  objects  of  the  complain- 
ant 's  incorporation  and  of  the  pow- 


ers   conferred    by    its    charter,    the 
manner   of   its   operations,   the   way 
in     which     information     concerning 
the   sales  made  there   was  distribu- 
ted by  telegraph  companies  through- 
out  the   country,   the   time   occupied 
in   the   dissemination   of  this   infer 
tnation,      and      the      circumstances 
which  induce  the  complainant  to  re- 
fuse  to   allow   its   quotations    to   be 
given  to  telegraph  companies,  except 
under     contracts     that     the     latter 
vould  not  furnish  the  same  to  per- 
sons    who    operated     buc-ket    shops. 
Board   of   Trade  of  Chicago  v.  Na- 
tional  Board    of    Trade    of    Kansas 
City,  154  Fed.  238.     In  a  bill  by  a 
stockholder    against   his   corporation 
and  its  directors,  to  enjoin  the  en- 
forcement   of    a    contract    made    by 
them,  whereby  the  profits  and  earn- 
ings of  the  corporation  were  fraudu- 
lently   diverted   from   its   stockhold- 
ers  and   paid    to    one    of   the   direc- 
tors  as   royalties   for   the  use   of   a 
worthless        patent,        which        also 
prayed    the    recovery    from    hun    of 
the    sums   he    had    already    received 
under    the    contract,    alleging    that 
he    was    practically    insolvent,    and 
asking    that    he    be    enjoined    from 
transferring  his  stock;   it  was  held: 
that    allegations    that    three    of    the 
other  defendant  directors  were  sons 
of    this    defendant,    and    with    him 
constituted  a  majority  of  the  board, 
and    were    corruptly    influenced    by 
liim  in  their  directorial  action,  that 
they  had  no  business,  and  were  de- 
pendent upon  him  for  support,  and 
were  living  in  an  expensive  and  ex- 
travagant   manner    at   his    cost    are 
not     scandalous,     nor     impertinent. 
Burden  v.  Burden,  124  Fed.  250.    In 
a  suit  against  an  administrator  and 
others,  to  enforce  an  agreement  by 


§237] 


IMPERTINENCE 


1239 


therein  in  this  and  other  countries,  were  held  not  to  be  imperti- 
nent ;  ^^  but  it  was  hold  that  averments  as  to  decrees  obtained  bj' 
consent  against  strangers  to  the  suit,  and  as  to  interference  pro- 
ceedings in  the  patent  office,  with  which  the  defendants  were  not 
connected,  were  impertinent.^* 

Great  liberality  is  allowed  in  actions  founded  on  the  anti-trust 
act,  where  proof  of  a  conspiracy  is  necessary, ^^  and  in  suits  to 
determine  the  validity  of  statutes  fixing  railroad  rates. ^^  It  has 
been  held  that  a  short  sentence,  inserted  out  of  abundant  cau- 
tion, should  not  be  expunged  as  impertinent.^'  Needless  repe- 
titions are  impertinent.^^  Matter  which  is  purely  evidentiary  is 
ordinarily  held  to  be  impertinent.^^ 


an  intestate  to  make  the  plaintiff 
his  heir,  and  to  protect  plaintiif's 
rights  ill  the  business  carried  on 
by  sueli  intestate;  it  was  held:  to 
be  proper  to  allege  tliat  the  dece 
dent  carried  on  tlie  l)usiiiess  during 
his  lifetime  in  partnership  with  one 
of  the  defendants;  that  the  same 
became  extremely  jjrofitable  and  its 
good  will  of  great  value;  that  he 
had  trouble  with  his  relatives, 
which  led  to  an  estrangement;  that 
he  left -no  will;  that  administrators 
of  his  estate  were  appointed  in  an- 
other State;  that  complainant  had 
no  notice  of  proceedings  in  the  Pro- 
bate Court,  which  resulted  in  the 
appointment  of  one  of  the  defend- 
ants as  administrator  in  the  State 
where  the  suit  was  brought;  that 
the  relatives  are  so  scattered  and 
the  property  so  widely  distributed 
that  it  is  impossible  for  the  com- 
]ilainant  to  join  all  the  parties  in 
interest ;  and  that  she  intends  to 
institute  another  action  in  another 
State,  to  restrain  them  from  in- 
terfering with  the  business  there 
carried  on;  but  that  it  was  imper- 
tinent to  allege;  how  the  stores 
maintained  by  the  decedent  be- 
came valuable;  and  how  interfer- 
ence    with     them     in     the     manner 


proposed  by  defendants  will  de- 
stroy such  value;  and  that  com- 
]ilainaiit  is  trying  to  collect  cer- 
tain checks  and  drafts  given  her 
for  value  during  her  lifetime;  and 
the  administrators  object  and  pro- 
jiose  to  contest.  Hall  v.  Bridge- 
port Tr.  Co.,  122  Fed.  163.  It  has 
been  said  in  England  that  similar 
allegations  are  improper,  Hun  Pr. 
1913,  p.   316. 

13  Peters  v.  Chicago  Biscuit  Co., 
U2  Fed.  779. 

14  Western  El.  Co.  v.  Williams, 
Abbott  El.  Co.,  83  Fed.  842.  See 
Board  of  Trade  v.  National  Board 
of  Trade,  15-4  Fed.  238. 

16  Ware-Kramer  Tobacco  Co.  v. 
Am.  Tobacco  Co.,  178  Fed.  117,  124. 

16  South  &  N.  A.  E.  Co.  v.  Rail- 
road Commission  of  Ala.,  171  Fed. 
22.5. 

17  Farmers'  L.  &  T.  Co.  v.  N.  P.  R. 
Co.,  76  Fed.  15.  But  see  Florida 
Mfg.  &  Inv.  Co.  V.  Finlayson,  74 
Fed.  671. 

18  Kelly  V.  Boettcher,  85  Fed.  55. 
tiO;  Norton  v.  Woods,  5  Paige  (N 
Y.),  260;  Camden  &  A.  R.  Co.  v. 
Stewart,  19  N.  J.  Eq.  343;  Nevada 
Nickel  Syndicate  v.  National  N.  Co.. 
86  Fed.  486. 

19  Ware-Kramer    Tobacco    Co.    v. 


1240 


IMJ'EKTINENCE    AND    SCANDAL 


[§238 


§  238.  Scandal.  Scandal  is  impertinent  matter  which  is  also 
reproachful.  1  Scandal  is  impertinent  matter  which  is  also  crimi- 
natory or  which  otherwise  reflects  upon  the  character  of  an  in- 
dividual.^ Usually  nothing  is  considered  scandalous  which  is 
relevant  or  responsive  to  the  allegations  of  the  bill.'  But  in  an 
English  case  brought  by  a  clergyman,  where  the  defendant  in- 
cluded in  a  schedule  of  accounts  a  charge  for  money  paid  by  him 
for  an  order  of  filiation  of  a  bastard  made  upon  the  plaintiff, 
the  court  held  the  item,  although  relevant,  a  proper  subject  of 
exception,  because  the  mode  of  bringing  it  forward  was  intended 
to  drive  the  plaintiff  out  of  his  parish.*  It  may  be  doubted 
whether  so  much  respect  for  the  cloth  would  be  shown  by  an 
American  court.  Matters  that  are  relevant  are  not  scandalous, 
unless  expressed  in  a  needlessly  offensive  manner.^  It  has  been 
held :  that  an  allegation  that  a  proposed  decree  was  made  ' '  with- 
out a  full  reading  of  the  proofs  in  the  cause,  or  a  careful  con- 
sideration of  the  briefs  of  the  counsel  filed  therein,"  and  not 
"after  full  consideration,"  is  not  scandalous,  since  it  contains 
no  imputation  upon  the  court ;  ^  and  that  an  averment  in  an  an- 
swer to  an  action  upon  a  judgment,  that  the  judgment  was  fraud- 
ulent and  had  been  obtained  by  false  and  perjured  testimony, 


American  Tobacco  Co.,  178  Fed.  117. 
But  see  South  &  N.  A.  E.  Co.  v. 
Eailroad  Commission  of  Ala.,  171 
Fed.   225. 

§  238.  1  Chancellor  Kent  in 
Woods  V.  Morrell,  1  J.  Ch.  (N.  Y.) 
103,  106.  See  also  Hood  v.  Inman, 
4  J.  Ch.  (N.  Y.)  437.  For  an  illus- 
tration of  scandal,  see  the  record  in 
U.  S.  V.  Schurz,  102  U.  S.  378,  26 
L.  ed.  167. 

2  Manhattan  Tr.  Co.  v.  Chicago 
El.   Traction   Co.,   188  Fed.   1006. 

3  Peck  V.  Peek,  Mosely,  45: 
Woods  V.  Morrell,  1  J.  Ch.  (N.  Y.) 
103,  106;  Fisher  v.  Owen,  L.  E.  8 
Ch.  D.  645;  McNulty  v.  Wiesen,  130 
Fed.  1012;  Story's  Eq.  PI.,  §862; 
Portsmouth  v.  Fellows,  5  Mass.  450. 
In  a  bill  to  remove  the  directors  of 
a  bank  for  paying  a  loss  resulting 


from  an  illegal  loan  made  by  the 
officers,  it  was  held  proper  to  allege 
the  previous  unlawful  management 
of  the  bank.  Wilkinson  v.  Dodd,  42 
N.  J.  Eq.  234;  s.  c.  as  Dodd  v.  Wil- 
kinson, 42  N.  J.  Eq.  647.  Allega- 
tions to  meet  charges  of  bad  faith 
made  in  the  bill  were  held  not  scan- 
dalous. Mercantile  Tr.  Co.  v.  Mo., 
K.  &  T.  Ey.  Co.,  84  Fed.  379. 

4  Atty.  Gen.  v.  Hewit,  in  Chanc, 
July,  1801;  cited  in  Cooper's  Eq. 
PI.  319;  Story's  Eq.  PI.  §862. 
See  Kedrovsky  v.  Archbishop  & 
Consistory  of  the  Eussian  Orthodox 
Greek  Catholic  Church,  etc.,  N.  Y. 
Sup.  Ct.  Sp.  Tm.,  per  Hendrick,  J., 
N.  Y.  L.  J.,  Dee.  19,  1918. 

5  Burden  v.  Burden,  124  Fed.  250. 

6  Miller  v.  Buchanan,  5  Fed.  366. 


238J 


SCANDAL 


1241 


was  not  impertinent  or  scandalous.'  Allegations  concerning  mo- 
tives are  scandalous  when  not  material.^  When  material,  they 
are  not  scandalous.®  An  allegation  concerning  defendant  against 
whom  no  specific  facts  are  alleged  ' '  an  attorney  and  counselor  at 
law  at  this  bar,  has  been  an  active  participant,  director,  designer 
and  operator  and  conspirator  with  the  other  defendants."  ^°  So 
it  was  said  might  be  allegations  that  a  defendaiit  was  "tlie 
agent,  representative,  straw  man,  employe,  dummy,  tool  and 
operator  of  the  bankrupt  defendants";  that  defendants  were 
guilty  of  "designing,  contriving  and  conspiring  to  swindle,  cheat, 
deceive,  hinder,  delay,  and  defraud"  creditors;  that  certain  acts 
were  "devices,  fences,  screens,  and  cloaks  and  legal  disguises"; 


7  Manhattan  Tr.  Co.  v.  Chicago 
El.   Traction  Co.,   188  Fed.   1006. 

8  South  &  N.  A.  E.  Co.  v.  Eailroad 
Commission  of  Ala.,  171  Fed.  225, 
averments  of  the  motive  of  State 
officers  and  legislature  prescribing 
and  enacting  a  law;  IT.  S.  v.  Ket- 
tenbach,  175  Fed.  463,  holding:  that 
in  a  suit  to  cancel  land  patents 
under  the  timber  and  stone  act  (Act 
of  June  3,  1878,  c.  151,  20  St.  at 
L.  80,  Comp.  St.  1901,  p.  1545)  for 
fraud,  charging  that  the  entrymen 
did  not  make  their  entries  in  good 
faith,  but  with  intent  to  transfer 
their  rights  to  others ;  charges  of 
transfers  and  acts  indicating  a  mo- 
tive at  the  time  final  proof  was 
made  to  transfer  the  land  were  sub- 
ject to  exception  for  impertinence, 
since  the  illegal  purpose  in  the 
primary  application  was  the  sole 
test  of  good  faith.  It  was  further 
held  that  allegations  setting  forth 
the  rules  and  regulations  of  the  De- 
partment of  the  Interior  prescribing 
interrogatories  to  applicants  for 
timber  land  at  the  final  proof  and 
the  scope  of  the  alleged  conspiracy 
and  other  acts  relating  solely  to 
such  final  proofs,  together  with  al- 
legations of  the  inducement  by  the 


defendant  of  the  entrymen  to  make 
false  answers  to  such  questions,  and 
the  false  answers  made  accordingly 
"for  the  purpose  and  to  the  end  that 
the  said  officers  and  the  other  offi- 
cers of  the  United  States  concerned 
and  charged  with  the  administra- 
tion of  the  laws  governing  the  dis- 
posal of  the  public  lands  might,  and 
should,  thereby  be  deceived,  imposed 
upon,  and  fraudulently  misled,  and 
so  prevented  from  further  inquiry, 
investigation,  and  consideration  con- 
cerning such  entries";  were  all  im- 
pertinent. Ibid.  175  Fed.  463,  465. 
An  allegation  is  an  answer  that 
plaintiff  brought  this  suit  in  a  State 
distant  from  that  of  the  defendants' 
residence  for  the  purpose  of  harass 
iug  them  and  involving  them  in 
large  expense  was  hold  to  bo  im- 
pertinent. Whittemorc  v.  Fatten, 
84  Fed.   51. 

9  Portsmouth  v.  Fellows,  5  Madd. 
450,  holding  that  allegations  that  a 
trustee  was  actuated  by  corrupt  and 
improper  motives  were  not  si-andal- 
ous  or  impertinent  in  a  suit  by  the 
beneficiaries  to  remove  him. 

lOCrim  v.  Triest,  C.  C.  A.,  232 
Fed.  570. 


1242 


[MPERTINENCE    AND    SCANDAL 


[§239 


that  one  of  the  defendants  "has  been  an  active  participant,  di- 
rector, designor,  and  operator  and  conspirator";  that  certain 
banks  "have  escaped  publicity  and  criticism  by  the  authorities 
for  their  negligence  in  lending  money. ' '  "  Allegations  of  want 
of  good  faith  in  the  entry  of  land  were  impertinent,  since  good 
faith  in  the  primary  application  for  entry  was  not  averred.i'^ 
Threats  to  violate  an  injunction,  if  granted,  were  held  not  to 
be  impertinent,  nor  scandalous,  in  a  bill  praying  such  injunc- 
tion.^^  Averments  that  power  conferred  by  a  statute  on  a  rail- 
road commission  was  so  used  as  to  discriminate  against  the 
complainants  and  to  favor  their  rivals,  as  a  reward  for  dis- 
missing suits  brought  by  the  latter  to  test  the  law's  validity, 
are  neither  impertinent  nor  scandalous.^* 

§  239.  Strikiiig  out  scandal  and  impertinence.  Before  the 
Equity  Rules  of  1912,  objections  to  matter  as  impertinent  or 
scandalous  were  raised  by  exceptions,  which  were  regularly  re- 
ferred to  a  master.i  The  Equity  Rules  of  1912  provide:  "The 
right  to  except  to  bills,  answers,  and  other  proceedings  for  scan- 
dal or  impertinence  shall  not  obtain,  but  the  court  may,  upon 
motion  or  its  own  initiative,  order  any  redundant,  impertinent  o^ 
scandalous  matter  stricken  out,  upon  such  terms  as  the  court 
shall  think  fit."^  Before  the  adoption  of  these  rules,  the  court 
had  power  to  expunge  scandalous  matters  on  its  own  motion  at 
any  time.^  Under  Equity  Rule  21,  it  has  not  yet  been  decided 
whether,  in  this  manner,  objections  to  the  sufificiency  in  law  of 
part  of  a  charge  in  a  bill  or  part  of  a  defense  in  an  answer  can 
be  raised.*     Under  the  former  practice,  it  was  held  that  such 


11  Ibid.,  C.  C.  A.,  2.32  Fed.  570, 
573,  574. 

12  U.  S.  V.  Kettenbach,  175  Fed. 
463. 

13  South  &  N.  A.  B.  Co.  v.  Rail- 
road Coniniission  of  Ala.,  171  Fed. 
225. 

14  Ibid. 

§239.  lEq.  Enles  of  1842,  26 
and  27;  Langdon  v.  Goddard,  3 
Story,  13;  Hood  v.  Inman,  4  J.  Ch. 
(N.  Y.)  437;  Foster's  Fed.  Pr.,  4th 
ed.,  §§  68,  147. 

2Eq.  Rule  21.  Williams  v.  Pope, 
215  Fed.  1000. 


3  Kelly  v.  Boettcher,  85  Fed.  55; 
Ex  parte  Simpson,  15  Ves.  476; 
Daniell's  Ch.  Pr.  (2nd  Am.  ed.)  402, 
403;  Story's  Eq.  PI.,  §270.  See, 
also,  Langdon  v.  Goddard,  3  Story, 
13. 

4  This  has  been  done  in  Ever- 
glades Drainage  League  v.  Napoleon 
B.  Broward  Drainage  Dist.,  253  Fed. 
246,  251.  Contra.  It  has  been  held 
that  the  question  whether  a  release 
to  a  third  person  by  the  complainant 
had  deprived  it  of  the  right  to  suit 
for  the  infringement  of  a  patent  is 
a  question  which  must  be  reserved 


§239] 


STRIKING    OUT    t^CANDAl,    .\M>    1-Ml'ERTINEXCK 


1243 


iiiattcr  in  a  bill  ^  or  answer  ^  might  be  expunged  by  motion.  But 
tliese  eases  have  not  been  generally  followed,'  and  it  was  settled 
that  mere  insuffieieney  of  matter  in  an  answer  that  was  respon- 
sive could  not  be  tested  by  exception  *  or  by  demurrer,^  unless  it 
was  an  erroneous  eonelusion  of  law.^°  The  Equity  Rules  of  1912, 
however,  provide :  that  the  defendant  may  move  to  dismiss  any 
part  of  the  bill  upon  five  days  notice;  and  that  any  ijoint  of  law 
going  to  the  whole  or  a  material  part  of  the  cause  or  causes  of 
action  stated  in  the  bill  or  defense,  theretofore  presentable  by 
p'.ea  in  bar  or  abatement,  may  be  separately  heard  and  disposed 
of  before  final  hearing  in  the  discretion  of  the  court;  ^^  and  that 
if  an  answer  sets  up  an  affirmative  defense,  the  sufficiency  of  the 
same  nuiy  be  tested  upon-motion  to  strike  out,  upon  five  days' 
notice  or  such  further  time  as  the  court  iiuiy  allow. ^^  "  Excep- 
tions for  insufficiency  of  an  answer  are  abolished."'  ^^  "If  found 
insufficient  but  amendable  the  court  may  allow  an  amendment 
upon  terms,  or  strike  out  the  matter."^*  Such  a  motion  must 
(|Uote  or  clearly  describe  the  parts  of  the  bill  to  which  it  is  di- 
rected.^^  It  is  insufficient  to  set  out  the  effect  of  the  parts  to 
which  it  refers. ^^ 


I'or  the  trial  and  cannot  Wo  adjudi- 
cated upon  such  a  motion.  Int. 
Steel  Co.  V.  Bethlehem  Steel  Co.,  233 
Fed.  .122. 

5  Hobhs  Mfg.  Co.  V.  Gooding,  C. 
C.  A.,  176  Fed.  259. 

6  Savings  &  Tr.  Co.  v.  Bear  Valley 
Trr.  Co.,  112  Fed.  693,  702,  704. 

7  In  U.  S.  V.  Kettenbaeh,  175  Fed. 
463,  held  that  such  a  motion  to 
strike  out  part  of  an  amended  bill 
could  not  be  made.  In  Ware- 
Kramer  Tobacco  Co.  v.  Am.  Tolja'-eo 
Co.,  178  Fed.  117,  123,  held  that 
such  a  motion  could  not  be  made  to 
test  the  sufficiency  of  the  complaint. 

8  Walker  v.  Jack,  C.  C.  A..  S8 
Fed.  576,  31  C.  C.  A.  462;  Greene 
V.  Aurora  Kys.  Co.,  158  Fed.  909. 

9  Crouch  V.  Kerr,  38  Fed.  549; 
Orether  v.  Wright,  C.  C.  A.,  75  Fed. 
742,  23  C.  C.  A.  498,  43  U.  S.  App. 
770;  Besson  &  Co.  v.  Goodman,  147 


I'ed.  887;  Blaiituii  v.  Chalmers,  158 
Fed.  907;  Louisville  &  N.  R.  Co.  v. 
Wright,  190  Fed.  252. 

10  Adams  v.  Bridgewater  Iron  Co., 
6  Fed.  179;  Bower-Barff  R.  I.  Co. 
V.  Wells  R.  I.  Co.,  43  Fed.  391.  But 
see  Ford  v.  Douglas,  5  How.  143, 
165,  12  L.  ed.  89,  99;  Harrison  v. 
Perea,  168  U.  S.  311,  42  L.  ed.  478; 
s.  c,  below,  7  New  Mexico,  666. 

11  Eq.  Rule  29.  Everglades  Drain- 
age League  v.  Napoleon  B.  Bro- 
ward Drainage  Dist.,  253  Fed.  246, 
251.  But  see  Int.  Steel  Co.  v.  Beth- 
lehem Steel  Co.,  233  Fed.  322. 

12  Eq.  Rule  33. 

13  Ibid. 

14  Ibid. 

15  Everglades  Drainage  League  v. 
Napoleon  B.  Broward  Drainage 
Dist.,  253  Fed.  246,  251;  Harrison 
V.  City  of  Tampa,  247  Fed.  569. 

16  Ibid. 


1244  IMPERTINENCE    AND    SCANDAL  [§  239 

Under  the  former  practice,  matter  that  otherwise  might  have 
been  considered  to  be  impertinent  or  scandalous  was  not  stricken 
out  when  intermingled  with  essential  allegations  so  that  their 
omission  would  render  a  sentence  without  meaning.^'  Neither 
scandal,  nor  impertinence,  however  gross  was  a  ground  for  dis- 
missing the  whole  bill,  it  being  a  maxim  of  pleading  that  utile 
per  inutile  non  vitiatur}^  Under  the  former  practice,  it  was 
held  that  an  exception  for  impertinence  must  be  allowed  in  the 
Avhole  or  not  at  all.^* 

17  Ware-Kramer    Tobacco    Co.    v.  E.  of  Mo.  v.  Mo.  Pac,  Ky.  Co.,  Ill 

Am.  Tobacco  Co.,  178  Fed.  117,  123.  U.  S.  505,  516,  522,  28  L.  ed.  498, 

ISDaniell's  Ch.  Pr.  (2d  Am.  ed.)  502,- 504. 
401.     But  see  Crim  v.  Triest,  C.  C.  19  Chapman     v.     School     District, 

A.,  232  Fed.  570.     See,  also,  Pacific  Deady,  108,  117. 


CHAPTER  XV. 

MOTIONS    TO    MAKE    PLEADINGS    MORE    DEFINITE    AND    CERTAIN    AND 

BILLS   OP   PARTICULARS. 

§  240.  Distinction  between  motions  to  make  pleadings  more 
definite  and  certain  and  bills  of  particulars.  The  Equity  Rules 
provide:  "A  further  and  better  statement  of  the  nature  of  the 
claim  or  defense,  or  further  and  better  particulars  of  any  matter 
stated  in  any  pleading,  may  in  any  ease  be  ordered,  upon  such 
terms,  as  to  costs  and  otherwise,  as  may  be  just."  ^  The  distinc- 
tion between  these  two  kinds  of  relief  is  not  clear.  In  Wisconsin 
it  has  been  held  that  there  is  no  such  distinction.^  In  New  York, 
an  order  will  be  made  directing  a  pleading  to  be  made  more 
definite  and  certain  only  when  its  precise  meaning  or  applica- 
tion is  not  clear.3  Matters  of  time,  place  and  circumstances,  un- 
less they  con.stitute  material  parts  of  a  cause  of  action  or  a 
defense,  can  only  be  obtained  by  a  bill  of  particulars.  It  has 
been  held  that  items  of  an  account  can  only  be  obtained  by  a 
bill  of  particulars.* 

§  241.  Motions  to  make  pleadings  more  definite  and  certain. 
A  demurrer  for  lack  of  certainty  to  the  whole  bill  or  to  a  part 
thereof  took  the  place  now  occupied  by  a  motion  to  make  the 
bill  more  definite  and  certain.^    Such  demurrers  were  especially 


§  240.     1  Eq.  Eule  20. 

2  Conover  v.  Knight,  84  Wise.  639, 
642,  54  N.  E.  1002. 

3  Tilton  V.  Beecher,  59  N.  Y.  176, 
17  Am.  Eep.  337;  Dumar  v.  Wither- 
bee,  88  N.  Y.  App.  Div.  181,  84  N. 
Y.  Suppl.  669.  See  Cook  v.  Matte- 
son,  33  N.  Y.  St.  Eep.  497;  Jack- 
man  V.  Lord,  56  Hun  (N.  Y.)  192; 
Eouget  V.  Haight,  57  Hun  (N.  Y.) 
119;  Madden  v.  Underwriting  Pub. 
Co.,  10  Misc.   (N.  Y.)   27;   Harring- 


ton V.  Stillman,  120  App.  Div.  (N. 
Y.)   659,  105  N.  Y.  Supp.  75. 

4  Clegg  V.  Am.  Newspaper  Union, 
7  Abb.  N.  C.  (N.  Y.)  59;  St.  John 
V.  Beers,  24  How.  Pr.  (N.  Y.)  377. 
Contra,  MacAdam  v.  Scudder,  127 
Mo.  345,  30  S.  W.  168;  Meyer  v. 
Chambers,  68  Mo.  626;  Gfeller  v. 
Graefemann,  64  Mo.  App.  162. 

§241.  1  Chicago,  M.  &  St.  P.  R. 
Co.  V.  Pullman  P.  C.  Co.,  50  Fed. 
24;    Green    v.    Terwilliger,    56    Fed. 


1245 


1246 


MOTIONS   TO    CUKE    UNCERTAINTY 


[§241 


favored  as  regards  allegations  of  fraud. ^  In  an  action  founded 
upon  fraudulent  representations  the  court  may  require  the  plain- 
tiff's pleading  to  be  amended  so  as  to  show  which  of  the  repre- 
sentations were  made  by  the  defendant  and  which  by  others  and 
whether  those  made  by  others  were  by  defendant's  authority 
or  procurement.^  Such  motions  have  been  granted  in  the  case 
of  alternative  averments ;  *  or  a  failure  to  show  the  nature  or 
source  of  a  title  pleaded ;  ^  or  whether  a  contract  was  oral  or 
in  writing ;  ^  or  in  what  a  failure  of  consideration  consisted ;  "^ 
or  in  what  character  the  defendant  was  sued ;  ^  and  as  to  allega- 
tions of  time  or  place,  which  were  material  parts  of  the  cause  of 
action  or  defense  as  to  which  the  motion  was  made.^ 

In  suits  for  the  infringement  of  a  patent  the  plaintiff  may- 
be directed  to  set  forth  which  of  several  patents,  the  defendant's 
articles  infringed,^"  and  whether  he  contends,  that  the  combina- 


.384;  Thomas  v.  Nantahala,  M.  &  T. 
Co.,  C.  C.  A.,  58  Fed.  485. 

2  Eorback  v.  Dorsheimer,  25  N. 
J.  Eq.  516,  518;  Mason  v.  Daly,  117 
Mass.  403;  James  v.  City  Investing 
Co.,  188  Fed.  513;  §137,  supra. 
See  Patton  v.  Whitney,  5  N.  Y.  St. 
Eep.  845;  Clafiin  v.  Smith,  13  Abl). 
N.  C.  (N.  Y.)  205,  4  Civ.  Pro.  R. 
(N.  Y.)  240,  66  How.  Pr.  (N.  Y.) 
3  68.  Contra,  Williams  v  Folsom, 
26  Abb.  N.  C.  (N.  Y.)  374,  37  X. 
Y.  St.  Eep.  635. 

3  Murphy  v.  Mitchell,  245  Fed. 
219. 

*Hasberg  v.  Moses,  81  N.  Y.  App. 
Div.  199,  80  N.  Y.  Supp.  867;  Coi- 
biu  V.  George,  2  Abb.  Pr.  (N.  Y.) 
465. 

5  Livingston  v.  Enff,  65  S.  C.  284, 
43  S.  E.  678;  Waldo  v.  Milroy,  19 
Wash.  156,  52  Pac.  1012. 

6  New  York  First  Presb.  Church 
v.  Kennedy,  72  N.  Y.  App.  Div.  82, 
76  N.  Y.  Supp.  284. 

7  Griffith  v.  Wright,  21  Wash.  494, 
58  Pae.  582. 

8  Seasongood  v.  Fleming,  74  Hun. 
(N.  Y.)  639,  26  N.  Y.  Supp.  831. 


9  Pierce  v.  Baird,  48  Ind.  378; 
Melvin  v.  St.  Louis,  etc.,  E.  Co.,  89 
Mo.  106,  1  S.  W.  286;  People  v. 
Byder,  12  N.  Y.  433;  Mutual  L. 
Ins.  Co.  v.  Eaymond,  118  N.  Y.  App. 
Div.  828,  103  N.  Y.  Supp.  839; 
Pigono  V.  Lauria,  115  N.  Y.  App. 
Div.  286,  100  N.  Y.  Supp.  976; 
Cerro  De  Pasco  Tunnel,  etc.,  Co.  v. 
Haggin,  106  N.  Y.  App.  Div.  401 
(action  for  libel)  ;  Warner  v. 
James,  94  N.  Y.  App.  Div.  257,  87 
N.  Y.  Supp.  976;  Dumar  v.  Wither- 
bee,  88  N.  Y.  App.  Div.  181,  84  N. 
Y.  Supp.  669;  Bennett  v.  Lawrence, 
71  N.  Y.  App.  Div.  413,  75  N.  Y. 
Supp.  902;  Dexter  v.  Fulton,  86 
Hun  (N.  Y.)  433,  33  N.  Y.  Supp. 
901;  Barlow  v.  Pease,  5  Hun  (N. 
Y.)  564;  McGehee  v.  Cooke,  55 
Misc.  (N.  Y.)  40,  105  N.  Y.  Supp. 
60;  Eosenthal  v.  Eosenthal,  10  X. 
Y.  Supp.  455;  Lynch  v.  Walsh,  11 
N.  Y.  Civ.  Proe.  446;   31  Cyc.  650. 

10  Fischer  v.  Auto  Supply  Mfg. 
Co.,  199  Fed.  191.  (An  order  to 
make  complaint  at  common  law  more 
definite  and  certain.) 


§241 


TO   HAKE   I'LEADINGS    MORE    DEKIMTK 


1247 


tion  alone  is  new  and  the  parts  used  in  the  eonstruction  are  old, 
or  that  the  patent  contains  a  new  element  or  a  new  form  of  an 
old  element."  The  defendant  who  has  set  up  a  number  of  patents 
to  show  the  state  of  the  prior  art  may  be  compelled  to  set  fortli 
in  what  respect  each  of  sucli  patents  disclose  any  of  the  elements 
or  combinations  described  in  plaintiff's  patent  and  in  what  re- 
spect they  negative  the  novelty  and  invention  of  the  device  in 
])laintiff's  patent  described.^^  gu^h  motions  have  also  been 
granted  when  denials  were  indefinite,^^  and  when  knowledge  or 
information  was  denied  concerning  mattei-s  presumptively  within 
the  knowledge  of  the  pleader.^* 

Under  the  practice  of  the  dift'erent  States  it  lias  been  held: 
that  a  motion  to  make  a  pleading  more  definite  and  certain  will 
not  be  granted  when  the  indefinite  allegations  are  immaterial, ^^ 
or  surplusage ;  ^^  nor  where  tlie  uncertainty  has  been  removed 
by  allegations  in  a  subsequent  part  of  the  pleading ;  i'  nor  where 
the  details  demanded  pertain  to  the  case  or  defense  of  the  mov- 
ing party."  A  few  cases  hold:  that  the  motion  will  not  be 
granted  where  it  appears  that  the  matter  demanded  is  not  within 


11  Coulston     V.     H.     Frank     Steel 
Eange  Co.,  221  Fed.  674. 
18  Ibid. 

13  Snyder  v.  Free,  114  Mo.  ;]6U,  '.M 
S.  W.  847;  Pfaudler  Process  Fer- 
mentation Co.  V.  MePherson,  .'>  N. 
Y.  Supp.  609;  Burley  v.  German 
Am.  Bank,  5  N.  Y.  Civ.  Proe.  172; 
O  'Brien  v.  Seattle  Ice  Co.,  43  Wash. 
217,  86  Pac.  399;  Borsuk  v.  Blau- 
ner,  93  N.  Y.  App.  Div.  306,  87  N. 
Y.  Supp.  851 ;  Morgan  v.  Sammons, 
66  S.  C.  388,  44  S.  E.  966. 

14  Winchester  v.  Browne,  11  N. 
Y.  Supp.  614,  25  Abb.  N.  Cas.  148; 
Hardman  v.  Cincinnati,  etc.,  R.  Co., 
9  Ohio  Dec.  (Eeprint)  544,  14  Cine. 
L.  Bui,   346. 

15  Smith  V.  Traftou,  3  Robertson 
(N.  Y.)  709;  Maretzek  v.  Cauldwell, 
2  Robertson   (N.  Y.)   715. 

16  Choctaw,  etc.,  R.  Co.  v.  Rolfc, 
76   Ark.   220,   88   S.   W.   870;    Knox 


V.  Trafalet,  94  Ind.  346;  Indiana 
Stone  Co.  v.  Stewart,  7  Ind.  App. 
563,  34  N.  E.  1019;  Schoonover  v. 
Hinckley,  46  Iowa,  207;  Davidson 
V.  Seligman,  51  N.  Y'.  Super.  Ct. 
47;  Pearec  v.  Weidemeyer,  52  Misc. 
(N.  Y.)  456,  102  N.  Y.  Supp.  505; 
Cook  V.  Matteson,  11  N.  Y.  Supp. 
572;  Parshall  v.  Tillou,  13  How.  Pr. 
(N.  Y.)  7;  Shoemaker  v.  Dayton, 
etc.,  E.  Co.,  10  Ohio  Dec.  (Reprint) 
252,  19  Cine.  L.  Bui.  322;  McCar- 
viUe  V.  Boyle,  89  Wis.  651,  62  X. 
W.  517;  Spensley  v.  Janesville  Cot- 
ton Mfg.  Co.,  62  Wis.  549,  22  N.  W. 
574;  31  Cyc.  647. 

17  Barron  v.  Pittsburg  Plate  Glass 
Co.,  10  Ohio  S.  &  C.  PI.  Dec.  114, 
7  Ohio  N.  P.  528. 

18  Vandcrveer  v.  Moran,  79  Neb. 
431,  112  N.  W.  581;  Anonymous,  4 
Ohio  Dec.  (Reprint)  234,  1  Clev.  L. 
Rep.  148. 


1248 


MOTIONS   TO   CURE  UNCERTAINTY 


[§242 


the  reach  of  the  pleader,!^  although,  in  one  case,  it  was  held 
that  the  objectionable  allegations,  if  not  sufficiently  definite, 
should  be  stricken  out ;  *°  or  where  it  appears  that  the  moving 
party  has  sufficient  information  upon  the  subject,^^  or  as  much 
information  as  the  pleader.22 

§  242.  Bills  of  particulars.  Bills  of  particulars  were  formerly 
unknown  to  equity  practice,^  although  they  were  frequently  or- 
dered in  actions  at  common  law.  They  are  gi-anted  in  bank- 
ruptcy.^ It  has  been  said  that  they  should  not  be  allowed  in 
admiralty.^  Bills  of  particulars  in  criminal  cases  are  subse- 
quently considered.*  Where  domination  and  undue  influence 
were  alleged,  the  plaintiff  has  been  required  to  set  forth  the  na- 
ture of  her  claim  of  domination  and  the  particulars  of  the  undue 
influence  which  she  claimed  existed,  whether  the  same  was  exer- 
cised by  threats,  actual  fraud  or  concealment,  and  to  specify 
the  nature  of  the  threats,  fraud  concealment,  or  other  instru- 
mentality.^ Where,  in  a  suit  to  set  aside  a  release  as  fraudulent, 
the  answer  set  forth  that  the  release  was  in  consideration  of  a 
large  sum  of  money  advanced  by  the  defendant  to  the  plaintiff, 
a  bill  of  particulars  was  ordered  as  to  the  amount  of  such  ad- 


19  Corns  v.  Clouser,  137  Ind.  201, 
36  N.  E.  848;  Louisville,  etc.,  B. 
Co.  V.  Balch,  105  Ind.  93,  4  N.  E. 
288;  Wheelock  v.  Barney,  27  Ind. 
462;  Baltimore,  etc.,  R.  Co.  v.  Coun- 
tryman, 16  Ind.  App.  139,  44  N.  E. 
265;  Atchison,  etc.,  R.  Co.  v.  Davis, 
70  Kan.  578,  79  Pac.  130;  Orth  v. 
St.  Paul,  etc.,  R.  Co.,  43  Minn.  208, 
45  N.  W.  151 ;  Kellogg  v.  Baker,  15 
Abb.  Pr.   (N.  Y.)   286. 

20Pugh  v.  Winona,  etc.,  R.  Co., 
29  Minn.  390,  13  N.  W.  189. 

21  St.  Louis,  etc.,  R.  Co.  v.  French, 
56  Kan.  584,  44  Pac.  12;  West  v. 
O'Neill,  14  Misc.  (N.  Y.)  235,  35 
N,  Y.  Supp.  714;  People  v.  New 
York  City  Cent.  Under-Ground  R. 
Co.,  15  N.  Y.  Supp.  225. 

22  Dr.  Blair  Medical  Co.  v.  U.  S. 
Fidelity,  etc.,  Co.  (Iowa,  1902),  89 
N,  W,   20;    Booco   v.   Mansfield,   66 


Ohio   St.  121,  64  N.  E.  115;   Herk- 
lotz  v.  Chase,  32  Fed.  433. 

§  242.  1  See  Cornell  v.  Bostwick, 
3  Paige   (N.  Y.)   160, 

2  Hane  v.  Crown  &  Keystone  Co., 
223  Fed.  439. 

3  Foster  v.  Conipagnie  Francaise, 
219  Fed.  351. 

i  Infra,   §522. 

6  Davis  V.  Davis  (Lehman,  J.,  N. 
Y.  Sup.  Ct.)  N.  Y.  L.  J.  March  2, 
1912.  In  an  action  for  conspiracy, 
the  plaintiff  was  required  to  give  a 
bill  of  particulars  stating  the  re- 
spects in  which  the  defendant's  acts 
were  unlawful  and  the  manner  of 
their  combination  or  agreement  to 
injure  plaintiff,  but  not  of  the  dam- 
ages suffered  by  the  plaintiff  when 
there  was  no  claim  of  special  dam- 
ages. Patterson  v.  Corn  Exchange 
of  Buffalo,  197  Fed,  686. 


§242] 


BILLS    OF    PARTICULARS 


1249 


varices.^  A  bill  of  particulars  is  usually  ordered  when  a 
fiduciary  relation  exists  J  At  common  law  bills  of  particulars 
may  be  ordered  whether  the  action  is  founded  on  contract  or 
tort.'  In  actions  for  personal  injuries  the  courts  have  denied 
a  motion  for  a  bill  of  particulars  directing  plaintiff  to  state  the 
nature,  extent  and  probable  duration  of  her  injuries  together 
with  her  present  physical  condition  as  thereby  affected ;  *  and 
a  motion  to  direct  defendants  to  furnish  a  bill  of  particulars  of 
plaintiff's  contributory  negligence. ^'^  A  bill  of  particulars  will 
not  be  ordered  concerning  immaterial  allegations,**  nor  concern- 
ing allegations  as  to  which  the  burden  of  proof  is  on  the  appli- 
cant.*^  In  England,  it  has  been  held  that  the  knowledge  by  the 
party  is  no  bar  to  his  motion  for  a  bill  of  particulars.*^  The 
rule  in  New  York  seems  to  be  otherwise.**  Upon  a  motion  to 
vacate  an  injunction  against  the  sale  of  property  transferred 
to  the  defendant  by  a  bankrupt,  the  complainant  trustee  was  re- 
quired to  furnish  a  bill  of  particulars  separating  as  far  as  pos- 
sible the  property  transferred  to  the  corporation  by  the  bankrupt 
from  that  subsequently  purchased  by  it.*^  In  the  Federal  Courts 
bills  of  particulars  will  rarely  be  ordered  concerning  facts 
known  by  the  moving  party  when  he  also  knows  that  they  are 
the  facts  upon  which  his  opponent  relies,*^  but  bill*  have  been 


6  Ibid. 

7  Zierenberg  v.  Labouchcre 
(1893),  2  Q.  B.  183. 

8  Green  v.  Delaware  L.  &  W.  R. 
Co.,  211  Fed.   774. 

9  Green  v.  Delaware  L.  &  W.  R. 
Co.,  211  Fed.  774. 

lOBowker  v.  Donnell,  226  Fed. 
359. 

11  Cave  V.  Torre,  54  L.  T.  515; 
Gibbous  V.  Norman,  2  Times  Rep. 
676. 

12  James  v.  Radnor  County  Coun- 
cil, 6  Times  Rep.  40;  Roberts  v. 
Owen,  6  Times  Rep.  172. 

ISHarbord  v.  Monk,  38  L.  T.  411. 
But  see  Keogh  v.  Incorporated  Den- 
tal Hospital  of  Ireland  (1910),  2 
Irish  R.  166. 

14  Bowers    v.    Hughes,    39    N.    Y. 


Supr.  482;  Blackie  v.  Netlson,  6 
Bosw.  (N.  Y.)  681;  Young  v.  Dc 
Mott,  1  Barb.  (N.  Y.)  30;  Hoening- 
haus  V.  Chaleyer,  22  N.  Y.  St.  Rep. 
528;  Fink  v.  Jetter,  38  Hun  (N. 
Y.)  163;  Wigand  v.  Dejonge,  18 
Hun  (N.  Y.)  405;  Passavant  v. 
Sickle,  14  Civ.  Pro.  R.  (N.  Y.)  57; 
Train  v.  Friedman,  4  Civ.  Pro.  R. 
(N.  Y.)  109;  Stevens  v.  Webb,  12 
Daly  (N.  Y.)  88,  4  Civ.  Pro.  R. 
(N.  Y.)  64;  Butler  v.  Mann.  9  Abb. 
N.  C.  (N.  Y.)  49;  Belasco  v.  Klaw. 
96  App.  Div.  (N.  Y.)  268.  See 
Curtis  v.  Phelps,  209  Fed.  261. 

15  Hane  v.  Crown  &  Keystone  Co., 
223  Fed.  439. 

16  Curtis  v.  Phelps,  209  Fed.  261  : 
0-So-Ezy  Mop  Co.  v.  Channell  Chem. 
Co.,   230   Fed.   469;    United   Lace   & 


1250 


MOTIONS   TO   CURE   UNCERTAINTY 


[§243 


ordered  of  facts  known  by  the  moving  part}-  when  he  did  not 
know  whether  those  relied  upon  the  opposite  side.^'  In  suits 
for  unfair  competition  a  party  who  had  charged  derogatory 
statements  concerning  him  by  his  opponent  was  obliged  to  dis- 
close the  nature  of  the  statements  and  who  made  them.^'  But 
a  motion  to  compel  the  complainant  to  disclose  before  the  hear- 
ing the  names  of  persons  who  had  been  deceived  into  buying 
the  defendant's  goods  was  denied.^^  Bills  of  particulars  in 
criminal  cases  are  subsequently  discussed.^" 

§  243.  Practice  upon  motion  for  bill  of  particulars.  It  is  the 
better  practice  to  precede  a  motion  for  a  bill  of  particulars  by 
a  demand  for  such  a  bill.^  The  New  York  rule  is  that  the 
application  must  be  acco)npanied  by  an  affidavit  showing  that 
the  moving  party  has  no  knowledge  or  information  respecting 
the  matters  as  to  which  the  particulars  are  demanded  and  has 
no  means  of  obtaining  information  in  regard  thereto.^  The 
affidavit  must  be  made  by  the  party  and  not  by  his  attorney,'* 


Braid  Mfg.  Co.  v.  Barthels  Mfg.  Co., 
213  Fed.  535. 

17  0-So-Ezy   Mop    Co.    v.    Channell 
Chem.  Co.,  230  Fed.  469. 

18  0-So-Ezy  Mop   Co.   v.   Channell 
Chem.  Co.,  230  Fed.  469. 

19  United  Lace  &  Braid  Mfg.  Co. 
V.  Barthels  Mfg.  Co.,  213  Fed.  535. 

20  Infra,  eh.  xxxi. 

§  243.     1  See  31  Cyc.  583. 

aCoolidge  V.  Stoddard,  120  N.  Y. 
App.  Div.  641,  105  N.  Y.  Supp.  544; 
Constable  v.  Hardenbergh,  76  Hun 
(N.  Y.)  434,  27  N.  Y.  Supp.  1022; 
Webster  v.  Fitchburg  K.  Co.,  32 
Misc.  (N.  Y.)  442,  66  N.  Y.  Supp. 
220;  Dorgan  v.  Seheer,  31  Mise. 
(N.  Y.)  801,  62  N.  Y.  Supp.  1030, 
(affirmed  in  31  Misc.  (N.  Y.)  829, 
64  N.  Y.  Supp.  383)  ;  Bowman  Cycle 
Co.  V.  Dyer,  23  Misc.  (N.  Y.)  620, 
52  N.  Y.  Supp.  159;  Yilliers  v. 
Tliird  Ave.  K.  Co.,  22  Misc.  (N.  Y.) 
17,  48  N.  Y.  Supp.  614;  Wales  Mfg. 
Co.  V.  Lazzaro,  19  Misc.  (N.  Y.) 
477,  43  N.  Y.  Suppl.  1110  {reversing 
18  Misc.  (N.  Y.)  352,  41  N.  Y. 
Supp.  1134);  Garfield  Nat.  Bank  v. 


Peck,  1  Misc.  (N.  Y.)  126,  20  N. 
Y.  Supp.  650;  Gridley  v.  Gridley,  7 
N.  Y.  Civ.  Proc.  215;  Orvis  v.  Dana, 
1  Abb.  N.  Cas.  (N.  Y.)   268. 

3  Toomey  v.  Whitney,  81  N.  Y. 
App.  Div.  441,  80  N.  Y.  Supp.  826; 
Mungall  V.  Bursley,  51  N.  Y.  App. 
Div.  380^  64  N.  Y.  Supp.  674;  'Stev- 
ens V.  Smith,  38  N.  Y.  Appw  Div. 
119,  56  N.  Y.  Supp.  540;  Mayer  v. 
Mayer,  29  N.  Y.  App.  Div.  393,  51 
N.  Y.  Supp.  1079;  Van  Olinda  v. 
Hall,  82  Hun  (N.  Y.)  357,  31  N. 
Y.  Supp.  495;  Gallersteiu  v.  Man- 
hattan K.  Co.,  27  Misc.  (N.  Y.) 
506,  58  N.  Y.  Supp.  374  {reversing 
26  Misc.  (N.  Y.)  852,  5/  N.  Y. 
Supp.  394) ;  Mori  v.  Pearsall,  14 
Misc.  (N.  Y.)  251,  35  N.  Y.  Supp. 
829;  Grofe  v.  Hagan,  13  Misc.  (N. 
Y.)  322,  34  N.  Y.  Supp.  462; 
lloeingliaus  v.  Chaleyer,  4  N.  Y. 
Supp.  814;  Duebor  Watch  Case  Mfg. 
Co.  V.  Keystone  Watch  Case  Co.,  21 
N.  Y.  Supp.  342,  50  N.  Y.  St.  417, 
23  N.  Y.  Civ.  Proc.  44.  But  see 
Sanders  v.  Soutter,  54  Hun  (N.  Y.) 
310,   7   N.   Y.   Supp.   549.      Statutes 


§  2441       KEMEDY  FOR  FAILURE  TO  GIVE  BILL  OF  PARTICILARS         12.")! 


unless  it  appears  that  the  attorney  is  the  only  person  who  has 
knowledge  of  all  the  facts  therein  alleged,  and  that  it  is  impos- 
sible to  obtain  the  party's  affidavit.*  The  affidavit  must  further 
show  that  the  allegations,  as  to  which  particulars  are  asked,  arc 
denied  by  the  party  applying  for  the  order. ^ 

An  objection  that  the  bill  of  particulars  might  preclude  a 
party  from  proving  facts  subsequently  discovered  may  be  ob- 
viated by  applying  for  permission  to  file  an  amended  bill  in- 
cluding such  new  facts.^  Delay  until  the  first  motion  day  of 
the  trial  term  is  not  such  laches  as  will  defeat  the  motion.' 

It  has  been  said  that  a  bill  of  particulars  cannot  be  used  as 
evidence.^  That  a  bill  of  particulars  is  not  a  part  of  the  record 
and  unless  saved  in  the  bill  of  exceptions  cannot  be  used  in  the 
Court  of  Review  to  show  that  the  matter  in  dispute  is  below  the 
jurisdictional  amount ;  *  but  another  case  holds  that  on  a  mo- 
tion for  judgment  on  the  pleadings  a  bill  of  particulars  may  be 
treated  as  a  pleading.^**  A  motion  for  a  bill  of  particulars  ap- 
peals to  the  discretion  of  the  court  ^^  and  will  rarely  be  reviewed 
on  writ  of  error  or  appeal. ^^ 

§  244.  Remedy  for  failure  to  give  a  bill  of  particulars.  Tn 
New  York,  the  remedy  for  a  failure  to  give  a  bill  of  particulars, 
which  has  been  ordered,  is  a  motion  to  preclude  the  party  from 
giving  evidence  concerning  the  matter,  the  particulars  of  which 
were  directed,^  or  by  a  motion  to  strike  out  the  pleading.'^  Where 


providing  for  the  verification  of 
pleadings  by  attorney  or  agent  do 
not  apply  to  affidavits  in  support  of 
applications  of  this  character.  Cohn 
V.  Baldwin,  74  Hun  (N.  Y.)  346, 
26  N.  Y.  Supp.  457. 

4Mungall  v.  Bursley,  51  App. 
Div.  (N.  Y.)  380,  64  X.  Y.  Supj). 
674.     See  31  Cyc.  586. 

6  Talmadge  v.  Sanitary  Security 
Co.,  2  N.  Y.  App.  Div.  43,  37  N.  Y. 
Supp.  177;  Webster  v.  Fitchburg  R. 
Co.,  32  Misc.  (N.  Y.)  442,  66  N.  Y. 
Supp.  220. 

6  0-So-Ezy  Mop  Co.  v.  Channell 
Chem.   Co.,  230   Fed.  469. 

7  Wetmore    v.    Goodwin    Film 
Camera  Co.,  226  Fed.  352. 

8  Wetmore     v.    Goodwin    Film 
Camera  Co.,  226  Fed.  352. 


& 


& 


9  Cent.  Commercial  Co.  v.  Jones- 
Dusenbury  Co.,  C.  C.  A.,  251  Fed. 
13. 

lOFriede  v.  White  Co.,  244  Fed. 
272 

11  Gimbel  Bros.,  Inc.,  v.  Adams 
Exp.  Co.,  217  Fed.  318;  Harper  v. 
Harper,  C.  C.  A.,  252  Fed.  30. 

12  Harper  v.  Harper,  C.  C.  A.,  2.-)2 
Fed.  39. 

§  244.  1  Gross  v.  Clark,  87  N.  Y. 
272,  276;  Foster  v.  Curtis,  121  App. 
Div.  (N.  Y.)  689;  Prym  v.  Peek  &• 
Mack  Co.,  136  App.  Div.  (N.  Y.) 
566;  Loscher  v.  Hager,  124  App. 
Div.   (N.  Y.)   568. 

2  Symonds  v.  Craw,  5  Cowen  (X. 
Y.  279;  Whitmoro  v.  Jennys,  1 
Barbour  (N.  Y.)  53;  Purdy  v.  War- 


1252 


MOTIONS   TO    CURE   UNCERTAINTY 


[§245 


an  insufficient  bill  is  given,  the  remedy  is  a  motion  for  a  further 
bill.^  Evidence  upon  the  point  omitted  will  not  be  excluded 
until  such  further  bill  has  been  ordered  and  the  order  dis- 
obeyed.* It  is  the  safer  practice  there  to  return  the  defective 
bill  served  when  demanding  a  compliance  with  the  original 
order.*  It  is  the  better  practice  to  procure  a  specific  order  pre- 
cluding the  party  from  giving  evidence,  after  his  failure  to  com- 
ply with  the  second  order  for  a  bill,  or  to  insert  in  the  order 
for  the  further  bill  a  provision  precluding  evidence  upon  any 
points  not  therein  specified.^ 

§  245.  Form  of  bill  of  particulars.  A  bill  of  particulars  will 
be  held  to  be  sufficient  if  it  fairly,  in  substance,  gives  the  opposite 
party  the  information  to  which  he  is  entitled,^  as  required  by 


den,  18  Wendell  (N.  Y.)  671;  Gross 
V.  Clark,  87  N.  Y.  272,  276. 

8  Beirne  v.  Sanderson,  83  App. 
Div.  (N.  Y.)  62,  82  N.  Y.  Supp. 
493;  Romer  v.  Kensico  Cemetery, 
79  App.  Div.  (N.  Y.)  100,  80  N. 
Y.  Supp.  38;  Mueller  v.  Tenth  St., 
etc.,  Ferry  Co.,  38  App.  Div.  (N. 
Y.)  622,  56  N.  Y.  Supp.  310;  Due- 
ber  Watch  Case  Mfg.  Co.  v,  Ameri- 
can, etc.,  Watch  Co.,  22  N.  Y.  Supp. 
69,  29  Abb.  N.  Cas.  412;  Mathushek 
Piano  Co.  v.  Pearce,  21  N.  Y.  Supp. 
920;  Virtue  v.  Beacham,  17  N.  Y. 
Supp.  450  (affirmed  in  18  N.  Y. 
Supp.  949)  ;  Gas- Works  Constr.  Co. 
V.  Standard  Gas-Light  Co.,  1  N.  Y. 
Supp.  265;  Bates  v.  Wotkyns,  2 
How.  Pr.  (N.  Y.)  18;  Barnes  v. 
Henshaw,  21  Wend.  (N.  Y.)  426; 
Purdey  v.  Warden,  18  Wend.  (N. 
Y.)  651;  James  v.  Goodrich,  1 
Wend.   (N.  Y.)  289. 

4  Cerra  de  Pasco  Tunnel,  etc.,  Co. 
V.  Haggin,  114  N.  Y.  App.  Div.  116, 
99  N.  Y.  Supp.  683;  Eeader  v.  Hag- 
gin,  114  N.  Y.  App.  Div.  115,  99  N. 
Y.  Supp.  684;  Reader  v.  Haggin, 
114  N.  Y.  App.  Div.  112,  99  N.  Y. 
Supp.  681. 

6  Ward  v.  Littlejohn,  2  Silv.  Sup. 


(N.  Y.)   589,  6  N.  Y.  Supp.  170,  17 
N.  Y.  Civ.  Proc.  178. 

6  Locker  v.  Am.  Tobacco  Co.,  200 
Fed.  973. 

§  245.  1  Boykin  v.  Persons,  95 
Ala.  626,  11  So.  67;  Ames  v.  Bell, 
5  Cal.  App.  1,  89  Pae.  619;  Vila  v. 
Weston,  33  Conn.  42;  Columbia 
County  V.  Branch,  31  Fla.  62,  12  So. 
650;  Leib  v.  Butterick,  68  Ind.  199; 
Pierce  v.  Wilson,  48  Ind.  298;  More- 
head  V.  Anderson,  100  S.  W.  340, 
30  Ky.  L.  Rep.  1137;  Scott  v.  Leary, 
34  Md.  389;  Snell  v.  Gregory,  37 
Mich.  500;  Voorhees  v.  Barr,  59  N. 
J.  L.  123,  35  Atl.  651;  Matthews 
V.  Hubbard,  47  N.  Y.  428;  Kindberg 
V.  Chapman,  115  N.  Y.  App.  Div. 
153,  100  N.  Y.  Supp.  685;  Baker 
V.  Sutton,  86  Hun  (N.  Y.)  588,  33 
N.  Y.  Supp.  1072;  Moss  v.  Crim- 
mins,  30  Misc.  (N.  Y.)  300,  63  N. 
Y.  Supp.  416;  Redmond  v.  Buckley, 
20  N.  Y.  Supp.  969;  Donohue  v. 
Pomeroy,  19  N.  Y.  Supp.  569;  Duffy 
V.  Ryer,  17  N.  Y.  Supp.  843;  Stan- 
ley V.  Millard,  4  Hill  (N.  Y.)  50; 
Smith  V.  Hicks,  5  Wend.  (N.  Y.) 
48;  MacDonald  v.  New  York,  etc., 
R.  Co.,  25  R.  I.  40,  54  Atl.  795; 
Columbia  Ace.  Assoc,  v.  Rockey,  93 


S  246] 


A.MKXDMEKT    OT    HIl.l.    t»F    I'ARTICT'LARS 


1253 


the  terms  of  the  order  directing  the  service  of  the  same.*  It 
should  be  as  definite  as  the  means  of  information  at  the  com- 
mand of  the  party  serving  the  same  will  allow.^  In  England, 
a  party  may  be  allowed  to  give  the  best  particulars  he  can,  with 
leave  to  supplement  the  same  within  a  reasonable  and  specified 
time  before  the  trial.*  A  party  suing  or  being  sued  in  a  repre- 
sentative capacity  is  only  ordered  to  give  the  best  particulars 
he  can.^  Its  object  is  not  to  furnish  the  opposite  party  with  the 
names  of  his  opponent's  witnesses.^  But  a  motion  which  other- 
wise should  be  granted  will  not  be  denied  because  it  would  dis- 
close such  names.'  It  was  held  that  a  paper  improperly  filed 
as  an  amended  pleading  might  be  treated  as  an  amplification  of 
a  bill  of  particulars  previously  filed. ^  It  has  been  said  that, 
ordinarily,  a  bill  of  particulars  need  not  be  verified,  unless  an 
affidavit  is  required  by  statute.^ 

§  246.  Amendment  of  bill  of  particulars.  An  application  for 
leave  to  amend  the  bill  of  particulars  is  the  proper  remedy  when 
new  facts  are  discovered  which  should  have  been  therein  in- 
cluded.^ An  application  to  amend,  or  add  to,  a  bill  of  par- 
ticulars, if  made  a  reasonable  time  before  the  trial  will  usually 
be  allowed,^  but  not  if  it  is  sought  thereby  to  introduce  a  new 


Va.  678,  25  S.  E.  1009;  Buruhain 
V.  Milwaukee,  69  Wis.  379,  34  N. 
W.  389;  Chesapeake,  etc.,  Canal  Co 
V.  Knapp,  9  Pet.  541,  9  L.  ed.  222; 
Church  V.  Spiegelberg,  33  Fed.  158; 
Whitaker  v.  Pope,  29  Fed.  Cas.  No. 
17,528,  2  Woods  463;  Perkins  v. 
Irvine,  23  Nova  Scotia,  250. 

2Quinn  v.  Fitzgerald,  87  N.  Y. 
App.  Div.  539,  84  N.  Y.  Supp.  728; 
Mueller  v.  Tenth  St.,  etc..  Ferry 
Co.,  38  N.  Y.  App.  Div.  622,  56  N. 
Y.  Supp.  310;  People  v.  Cox,  23 
Hun  (N.  Y.)  269;  Mason  v.  Eing, 
10  Bosw.  (N.  Y.)  598. 

SBarcmore  v.  Taylor,  53  N.  Y. 
Super.  Ct.  119;  Mason  v.  Eing,  in 
Bosw.  (N.  Y.)  598;  Humphry  v. 
Cottleyou,  4  Cow.  (N.  Y.)  54;  Sul- 
livan v.  Waterman,  21   E.  I.   72,  41 

Fed.   Prac.   Vol.   II— 9 


Atl.  1006;  Long  v.  Kinard,  Harp. 
(S.  C.)  47;  31  Cyc.  588. 

4  14  days '  time.  Marshall  v.  In- 
tcroceanic,  etc.,.  Co.,  1  Times  E«p. 
:i94;  Harbord  v.  Monk,  38  L.  T.  411. 

6  Higgins  v.  Weekes,  5  Times  Eep. 
38. 

6  Curtis  v.  Phelps,  209  Fed.  261. 

7  0So-Ezy  Mop  Co.  v.  Channell 
Chem.  Co.,  230  Fed.  469. 

8  Ontario  Powder  Works  v.  Pow- 
ell, 132  Mich.  451,  93  N.  W.  1075. 

9  31  Cyc.  589,  citing  Jones  v.  Bar- 
rett, 35  Md.  258. 

§246.  10-So-Ezy  Mop  Co.  v. 
Cliannell  Chem.  Co.,  230  Fed.  469. 

2  0-So-Ezy  Mop  Co.  v.  Channel! 
Chem.  Co.,  230  Fed.  469;  Clarafed.- 
V.  Commercial  I'nion  Ass'n,  (C.  A.), 
:{2  W.  E.  262. 


1254 


MOTIONS   TO    CURE   UNCERTAINTY 


[§246 


cause  of  action,  such  as  fraud,^  nor  to  increase  a  claim  after 
payment  of  the  full  original  claim  into  court.*  In  England,  at 
the  trial,  leave  to  amend  the  bill  of  particulars  is  usually  re- 
fused ^  although  a  change  of  date  has  then  been  allowed  on 
terms.6  The  rule  in  the  different  States  of  this  Union  is  similar,' 
except  that  amendments  of  a  bill  of  particulars  at  the  trial  are 
often  granted  when  the  opposite  side  will  not  be  prejudiced  by 
surprise.* 


3  Coekseclge  v.  Metropolitan  Coal 
Consumers'  Ass'n,  65  L.  T.  432. 

4  Sanders  v.  Hamilton,  (1907)  96 
L.   T.  679. 

5  Moss  V.  Mailings,  33  Ch.  D.  603. 

6  McCarthy  v.  Fitzgerald  (1909, 
Ca.)   2  Irish  R.  445. 

7  31  Cyc.   589,  590. 

8  31  Cyc.  589;  citing  Brownell 
Imp.  Co.  V.  Critchfield,  96  111.  App. 
84  {affirmed  in  197  111.  61,  64  N. 
E.  332);  Farmers',  etc.,  Bank  v. 
Glen  Elder  Bank,  46  Kan.  376,  26 
Pac.  680;  Marion  County  School 
Dist.  No.  73  V.  Dudley,  28  Kan. 
160;    Gardner   v.    Gardner,   2    Gray, 


(Mass.)  434;  Felter  v.  Manville,  23 
Kan.  191.  Compare  Tate  v.  Hamil- 
ton, 81  Mich.  221,  45  N.  W.  822. 
Fielder  v.  Collier,  13  Ga.  496;  Eeed 
V.  Cooper,  30  Kan.  574,  1  Pae.  822; 
Towle  V.  Blake,  38  Me.  528;  Lester 
V.  Thompson,  91  Mich.  245,  51  N. 
W.  893;  Mead  v.  Glidden,  79  Mich. 
209,  44  N.  W.  596;  Collins  v. 
Beecher,  45  Mich.  436,  8  N.  W.  97; 
Haviland  v.  Fidelity  Ins.,  etc.,  Co., 
3  Pa.  Co.  Ct.  222;  Lewis  v.  Jewett, 
51  Vt.  378;  Hopkins  v.  Stefan,  77 
Wis.  45,  45  N.  W.  676.  But  see 
Goforth  V.  Stingley,  79  Miss.  398, 
30  So.  Rep.  690. 


CHAPTER  XVI. 

MOTIONS    AND   PETITIONS. 

§247.  Definition  and  classification  of  interlocutory  applica- 
tions. An  interlocutory  application  is  a  ro(iuest,  not  incor- 
porated in  a  bill,  made  to  the  court  for  its  interference  in  a 
matter  arising  in  a  cause  either  before  or  after  a  decree.  An 
interlocutoi-y  application   is  made  by  motion   or  petition. 

§248.  Definition  and  classification  of  motions.  A  motion 
has  been  detincd  as  "an  application  either  by  a  party  or  his 
counsel,  not  founded  upon  any  written  statement  addressed  to 
the  court."  ^  But  the  rules  of  the  Supreme  Court  of  the  United 
States  provide  that  ''all  motions  hereafter  made  to  the  court 
shall  be  reduced  to  writing,  and  shall  contain  a  brief  statement 
of  the  facts  and  ob.iects  of  the  motion.^  And  most  motions  are 
supported  by  affidavits.  ^Motions  are  either  of  course  or  special. 
Special  motions  are  either  ex  parte  or  upon  notice." 

§  249.  Motions  of  course.  Motions  of  course  are  those  which, 
by  some  rule  or  ])ractice  of  the  court,  are  invariably  granted 
without  notice,  and  to  which  no  opposition  is  allowed. ^  In 
Federal  etjuity  practice,  the  term  is  usually  contined  to  such 
motions  as  are  granted  as  of  course  by  the  clerk  without  the 
intervention  of  a  .judge  of  the  court."  The  equity  rules  provide 
that  "all  motions  and  applications  in  the  clerk's  offices  for  the 
issuing  of  mesne  process  and  final  process  to  enforce  and  execute 
decrees;  for  taking  bills  pro  confesso;  and  for  other  proceed- 

§248.      IDaiiieH's    Ch.     Pr.     (2.1  tlip  luiiiutcs.     Hoirlich  v.  ML-DoiiaM, 

Am.   ed.)    1787.     See   the  language  80  Cal.  472,  22  Pac.  299. 

of  Folgor,   J.,   in   Shaft  v.   Phoenix  2  Supreme  Court  Rule  6. 

Mut.  L.  Ins.  Co.,  67  N.  Y.  544,  547.  S2I9.     n\   S.   v.  Parrott,   1   Mo- 

2:?  Am.  Eep.  138.     It  has  been  saifl,  All.   447,  454;    Merchants'   Bank  v. 

however,    that    careful    practitioner  Crysler,  C.  C.  A.,  67  Fed.  388,  390: 

should   prepare   and   file   his   motion  s.  c.  14  C.  C.  A.  449. 

in     writing,     stating     the     grounds  2  Robinson    v.    Satterlce,    3    Saw. 

thereof,  or  have  the  same  entered  in  134,  141. 

1255 


1256 


MOTIONS   AND   PETITIONS 


[§250 


ings  in  the  clerk's  office  which  do  not  require  any  allowance  or 
order  of  the  court,  or  of  any  judge  thereof,  shall  be  deemed 
motions  and  applications  grantable  of  course  by  the  clerk  of  the 
court.  But  the  same  may  be  suspended,  or  altered,  or  rescinded 
by  any  judge  of  the  court,  upon  special  cause  shown.  "^  The 
order  dismissing  a  bill  for  an  omission  to  duly  file  a  replication 
is  an  order  as  of  course.*  It  has  been  held  that  an  order  for 
the  issue  of  a  commission  is  not.^ 

§  250.  Special  motions  without  notice.  A  special  motion  is  a 
motion  which  can  only  be  granted  by  a  judge  of  the  court  under 
special  circumstances  or  in  his  discretion.^  Such  motions  are 
either  upon  notice  or  without  notice.  Orders  gi'anted  upon 
motions  without  notice  are  said  to  be  ex  parte;  and  the  same 
term  is  applied  to  the  motions  upon  which  they  are  granted. 
An  ex  parte  special  motion  must  be  supported  by  an  affidavit.^ 
Ex  parte  special  motions  are  not  common.^  They  are  usually 
granted  to  prevent  some  irreparable  injury  to  the  moving  party 
which  would  otherwise  occur  within  the  time  limited  for  notice, 
when  the  same  is  required ;  and  the  court  should  always  lend 
a  willing  ear  to  an  application  to  discharge  or  set  aside  an  ex 
parte  order.*  Ex  parte  orders  may  be  obtained  at  any  time  and 
in  any  place  within  the  jurisdiction  of  the  judge,  whether  in 
court  or  elsewhere.^  As  a  general  rule,  where  a  party  has  ap- 
peared he  is  entitled  to  receive  notice  of  every  application  for 
an  order,  except  applications  for  an  extension  of  time  and  those 
of  a  like  nature  and  motions  which  are  granted  as  of  course.^ 


3  Equity  Eule  5. 

4  Robinson  v.  Satterlec,  ?>  Saw. 
134,  141. 

5  1^   S.  V.   Pariott,  1   MeAll.  447. 

§250.  lU.  S.  V.  Parrott,  1  Me- 
All. 447,  454;  Merchants'  Bank  t. 
Crysler,  C.  C.  A.,  67  Fed.  388,  390; 
s.  c,  14  C.  C.  A.  449. 

ZDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1789. 

3  McLean  v.  Lafayette  Bank,  3 
McLean,  503;  U.  S.  v.  Parrott,  1 
McAll.  447;  Marshall  v.  Mellersh, 
o  Beav.  496;  Gray  v.  C.  I.  &  N.  R. 
Co.,  1  Woolw.  63. 


4Danieirs  Ch.  Pr.  (2d  Am.  ed.) 
1789,  1790;  Isnard  v.  Cazeaux,  1 
Paige  (N.  Y.)  39;  Hart  v.  Small, 
4  Paige  (N.  Y.)  551. 

SDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1789;  Equity  Rule  3;  Horn  v.  Pare 
Marquette  R.  Co.,  151  Fed.  626; 
infra,  §  255. 

6  Isnard  v.  Cazeoux,  1  Paige  (N. 
Y.)  38;  Merchants'  Bank  v.  Crys- 
ler, C.  C.  A.,  67  Fed.  388,  390.  See, 
also,  Marshall  v.  Mellersh,  5  Bev. 
496;  DanielPs  Ch.  Pr.  (2d  Am.  ed.) 
1789,  1790. 


§  251]  NOTICE    OP    MOTION  1257 

No  preliminary  injunction  is  granted  without  notice;'  but  when 
notice  has  been  given  of  a  motion  for  an  injunction,  and  there 
appears  to  be  danger  of  irreparable  injury  from  delay,  a  tem- 
porary restraining  order  may  be  granted  without  notice.'  The 
matter  must  then  be  returnable  within  ten  days,  and  the  sta\- 
order  is  dissolved  unless  the  party  who  obtained  the  order  pro- 
ceeds with  his  application  for  an  injunction.^  It  may  also  be 
dissolved  or  modified  upon  two  days'  notice.^*'  Under  extraor- 
dinaiy  circumstances,  receivers  may  be  appointed  ex  parte}^ 
Writs  of  ne  exeat  repuhlka  are  usually  granted  e.t  partc}^  'V\w 
proper  practice,  when  the  judge  is  absent,  is  to  sul)mit  the  mo- 
tion papers  to  the  clerk,  not  to  send  them  to  the  judge  by  mail.^^ 
§251.  Notice  of  motion.  "Any  district  judge  may,  upon 
reasonable  notice  to  the  parties;  make,  direct,  and  award,  at 
chambers  or  in  the  clerk's  office,  and  in  vacation  as  well  as  in 
term,  all  such  process,  commissions,  orders,  rules  and  other 
proceedings,  whenever  the  same  are  not  grantable  of  course, 
according  to  the  rules  and  practice  of  the  court."  ^  "Neither 
the  noting  of  an  order  in  the  Equity  Docket  nor  its  entry  in  the 
Order  Book  shall  of  itself  be  deemed  notice  to  the  parties  or 
their  solicitors ;  and  when  an  order  is  made  wdthout  prior  notice 
to,  and  in  the  absence  of,  a  party,  the  clerk,  unless  otherwise 
directed  by  the  court  or  judge,  shall  forthwith  send  a  copy 
thereof,  by  mail,  to  such  party  or  his  solicitor  and  a  note  of  such 
mailing  shall  be  made  in  the  Equity  Docket,  which  shall  be 
taken  as  sufficient  proof  of  due  notice  of  the  order."  ^  The 
length  and  manner  of  servion^  of  notices  of  motion  is  usually 
regulated  liy  rule  or  local  practice  differently  in  the  several 
districts  or  circuits.     The  State  practice  is  often  followed.^     It 

7Eq.  Rule  73;  infra,  §292.  13  i?r   Kiinu-y,   C.  C.  A.,   i:?',    HV.l. 

8  Ibid.  Jiid.  Code,  §263,  36  St.  at       340. 

L.   1087.  §-'01.     lEq.  Eulc  1. 

9  Ibid.  2  Eq.   Rule   4.     But  see   Eq.   Rulf 

10  Ibid.  8 ;   quoted  infra,  §  257. 

11  Phelps  V.  Mutual  Reserve  Fund  3  S.   D.  N.  Y.,  Rule  1.1. 

Life  Ass'n,  C.  C.  A.,  61  L.R.A.  717,  Where   the   attorney   for  a    party 

112   Fed.  453;    Worth   Mfg.   Co.   v.  has  died   and  no   successor  has   aj) 

Bingham,   C.    C.   A..   116   Fed.   785;  peared   or  been  appointed,  it   seems 

and  other  cases  cited,  infra,  §  317.  that    notice    of    a    motion  may    !)«• 

12Collinson   v.   ,   18   Ves.  served    upon    such    a    party    ]>erson- 

353;  Danioll's  Ch.  Pr.  (2d  Am.  ed.)  ally.      Hoffman   v.   Rowley,  13   Abb. 

1789,   19;;7;    u>fra.   §328.  I'r.  N.   V.  399. 


1258 


MOTIONS    AND    PETITIONS 


[§251 


has  been  held,  that  service  of  a  notice  of  a  motion  for  a  relief 
by  a  receiver  may  be  made  by  mail,  addressed  to  a  party  to 
the  suit,  who  lives  outside  the  district.*  Notice  of  a  motion 
for  any  process  of  contempt  or  commitment,  when  notice  is  re- 
quired, must  be  served  personally  on  the  party  against  whom 
the  process  is  souorht,^  except,  perhaps,  when  an  order  for  sub- 
stituted service  has  been  previously  obtained.^  In  England, 
under  special  circumstances,  notice  of  a  motion  could  be  made 
upon  an  agent  of  a  person  without  the  jurisdiction^ 

An  appearance  in  court  upon  the  day  appointed  for  the  mo- 
tion or  a  consent  to  an  adjournment,  is  a  waiver  of  a  defect 
in  the  time  and  manner  of  service  ^  and  in  the  form  of  the 
notice  ^  or  a  waiver  of  an  omission  to  serve  any  notice  ^°  unless 
the  objection  is  first  specifically  made.  Notice  of  motion  is  given 
either  by  a  notice  signed  by  the  solicitors  or  parties  or  by  an 
order  to  show  cause  granted  by  the  court.  An  order  to  show 
cause  is  an  order  requiring  a  party  to,  appear  and  show  cause 
why  a  certain  thing  should  not  be  done  or  permitted."  It  is 
equivalent  to  a  notice  of  motion,  and  except  in  cases  where  it 
is  required  by  statute,^^  its  ordinary  use  is  to  procure  the  argu- 
ment of  a  motion  within  a  shorter  time  than  the  term  for  notice 
required  by  the  rules  or  statute.  In  England  the  correspond- 
ing practice  is  by  what  is  termed  a  rule  nisi}^ 

A  notice  of  motion  should  be  properly  entitled  in  the  cause 


4  Appeal  dismissed  in  Bache  v. 
Hunt,  193  U.  S.  523.  Cf.  Be  Wood 
&  Henderson,  210  U.  S.  246,  52  L. 
ed.  1046;  Be  Brockton  Ideal  Shoe 
Co.,  C.  C.  A.,  200  Fed.  745.  See 
Staunton  v.  Wooden,  C.  C.  A.,  179 
Fed.  61;  Be  Waukesha  Water  Co., 
116  Fed.  1009;  and  Chapter  on 
Bankruptcy,  infra. 

6  Darnell's  Ch.  Pr.  (2d  Am.  ed.) 
1794;  Gray  v.  C,  I.  &  N.  K.  Co.,  1 
Woolw.  63 ;  supra,  §  165. 

6  Hope  V.  Hope,  4  De  G.,  M.  & 
G.  328. 

VDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1794;  Hope  v.  Hope,  4  De  G.,  M. 
&  G.  828;   Cooper  v.  Wood,  5  Beav. 


391;  Pulteney  v.  Shelton,  5  Ves. 
l47;  Hunt  v.  Lever,  5  Ves.  147; 
and  supra,  §  165. 

8  New  York  Times  v.  Sun  Print- 
ing &  Publishing  Co.,  195  Fed.  173. 

9  Marye  v.  Strouse,  6  Sawyer  204. 

10  Holmes  v.  Conway,  241  U.  S. 
624;  Central  Tr.  Co.  v.  Pittsburg  S. 
&  No.  K.  B.  Co.,  N.  Y.  Ct.  App., 
May  7,  1918,  223  N.  Y.  347. 

H  Spaeth  v.  Sells,  176  Fed.  797. 

12  See  Spaeth  v.  Sells,  176  Fed. 
797. 

13  Geneva  Basket  Co.,  71  Misc. 
(N.  Y.)  156.  See  People  v.  Brook- 
lyn Bank,  140  App.  Div.  (N.  Y.) 
750,  752. 


§251] 


NOTICE   OP    MOTION 


1259 


or  matter  in  which  it  is  made.^*  Where  there  are  separate 
plaintiflfs  or  defendants,  a  notice  is  not  defective  which  names 
the  first  of  each  of  them  with  the  affix  "and  others,"  provided 
the  opposite  party  is  not  misled  thereliv.^^  Where  there  are 
two  titles  and  one  is  incorrect,  if  the  other  is  correct  the  notice 
is  good.^^  When  the  parties  are  the  same,  the  same  notice  may 
be  entitled  in  several  actions.^'  The  notice  should  be  addressed 
to  the  solicitor  of  the  party  intended  to  be  affected  by  it,  or 
to  the  party  himself  when  he  appears  in  person  or  personal 
service  is  intended.  It  should  be  dated, ^'  and  signed  by  the 
solicitor  for  the  moving  party,  or  by  that  party  himself  if  he 
appears  in  person. ^^  It  has  been  held  in  New  York  that  a  notice 
signed  in  person  by  a  defendant  who  has  previously  appeared 
by  a  solicitor  who  has  not  been  removed  is  irregular.^"  A  notice 
of  motion  should  state  the  day,  plaee,  and  hour  at  which  the 
motion  will  be  made.^^  It  is  usual,  however,  to  designate  the 
hour  by  the  expression  "at  the  opening  of  the  court  on  that 
day,"  and  to  add  the  words  "or  as  soon  thereafter  as  counsel 
can  be  heard."  ^^  AVhere  the  motion  can  be  made  only  by  leave 
of  the  court,  the  notice  ought  to  mention  that  it  is  so  made; 
or,  otherwise,  it  seems  that  it  may  be  disregarded. ^^  Where 
the  object  of  the  motion  is  to  discharge  an  order  for  irregularity, 
it  is  usual  for  the  notice  to  state  the  ground  of  the  application.'^* 
It  is  usual  for  the  notice  also  to  state  before  what  judge  the 


14  Barb.  Ch.  Pr.  570;  Eowlatt  v. 
Cattell,  2  Hare,  186;  Salomon  v. 
Stalman,  4  Beav.  243;  Davis  v.  Bar- 
rett, 7  Beav.  171;  Morrall  v.  Prich- 
ard,  11  Jur.  (N.  S.)  969;  Foote  v. 
Emmons,  2  How.  Pr.  (N.  Y.)  89; 
Hawley  v.  Donnelly,  8  Paige  (N. 
Y.)  415. 

16  Jerauld  County  v.  Williams,  7 
S.  D.  196,  68  N.  W.  90o. 

16  Matter  of  Ungrich,  201  N.  Y. 
415.  >y^ 

17  Hornfager  v.  Hornfager,  6 
How.  Pr.   (N.  Y.)   13. 

18  Barb.  Ch.  Pr.  570;  Moody  v. 
Hebberd,  11  Jur.  941;  Hutchinson 
V.  Horner,  9  Jur.  615;  Parker  v. 
Francis,  9  Jur.  616,  note. 


19  Barb.  Ch.  Pr.  570;  Perry  v. 
Walker,  4  Beav.  452. 

20  Halsey  v.  Carter,  6  Robertson 
(N.  Y.)  535;  Webb  v.  Dill,  18  Abb. 
Pr.   (N.  Y.)  264. 

21  Barb.  Ch.  Pr.  570;  Bodwell  v. 
Wilk-ox,  2  Caines  (N.  Y.),  104; 
Anon.,  1  J.  R.   (N.  Y.)   143. 

22  Barb.  Ch.  Pr.  570;  In  re  Elec- 
tric Tel.  Co.  of  Ireland,  10  W.  R.  4. 

23  Hill  V.  Rimoll,  8  Sim.  6;;2; 
Jacklin  v.  Wilkins,  6  Beav.  607. 

24  Brown  v.  Robertson,  2  Phil. 
173;  Alexander  v.  Esten,  1  Caines 
(N.  Y.)  152;  Jackson  v.  Stiles,  1 
Cowen    (N.  Y.)    134. 


1260 


MOTIONS    AND    PETITIONS 


[§251 


motion  will  be  made;  and  to  specify  the  affidavits  and  other 
documents  which  will  be  used  in  its  support.^^  The  notice  must 
state  clearly  the  terms  of  the  order  which  will  be  asked  for, 
and  everything  which  the  party  would  have  should  be  expressed, 
as  the  court  will  not  extend  the  order  beyond  the  notice.^^  For 
this  reason,  it  is  prudent  to  add  a  notice  of  a  motion  for  gen- 
eral relief;  that  is,  "for  such  other  or  further  order  or  relief 
as  to  the  court  shall  seem  just ; ' '  under  which,  other  relief 
germane  to  that,  a  motion  for  which  has  been  specifically  noticed, 
may  be  granted.^' 

A  number  of  objects  not  inconsistent  with  each  other,  and 
even  inconsistent  objects,  if  prayed  for  in  the  alternative,  may 
be  included  in  the  same  notice  and  motion.^s     The  court  will 


SBDauiell's  Ch.  Pr.  (2d  Am.  ed.) 
1793;  Clement  v.  Griffith,  C.  P. 
Coop.  470;  Brown  v.  Eieketts,  2  J. 
Ch.   (N.  Y.)  425. 

26  Barb.  Ch,  Pr.  570;  Mann  v. 
King,  18  Ves.  297. 

27  Barb.  Ch.  Pr.  570.  People  v. 
Turner,  1  Cal.  152;  Landis  v.  Olds, 
9  Minn.  90;  Ferguson  v.  Jones,  12 
Wendell  (N.  Y.)  241;  Rogers  v. 
Toole,  11  Paige  (N.  Y.)  212;  Bis- 
sell  V.  New  York  Cent.  &  H.  E.  R. 
Co.,  67  Barbour  (N.  Y.)  385;  Boy- 
len  V.  McAvoy,  29  How.  Pr.  (N.  Y.) 
278;  Van  Slyke  v.  Hyatt,  46  N.  Y. 
259;  Randall  v.  Randall,  139  App. 
Div.  (N.  Y.)  674;  People  v.  Brook- 
lyn Bank,  140  App.  Div.  (N.  Y.) 
750,  752.  But  see  Schneider  v. 
Meyer,  56  Mo.  475;  Northrop  v. 
Van  Dusen,  5  How.  Pr.  (N,  Y.) 
134;  3  Code  Rep.  (N.  Y.)  140;  Bel- 
linger V.  Martindale,  8  How.  Pr. 
(N.  Y.)  113;  De  Walt  v.  Kinard, 
19  S.  C.  286.  It  has  been  held :  that 
on  the  hearing  of  a  motion  for  the 
production  of  papers  under  a  sub- 
poena duces  tecum  coupled  with  a 
prayer  for  general  relief,  if  the 
other  party  appears  by  counsel,  an 
order  may  be  granted  committing 
him,   or,    if    a   corporation,   commit- 


ting its  officers,  for  contempt  fo- 
disobedience  to  the  subpoena,  Edi- 
son El.  L.  Co.  V.  U.  S.  El.  L.  Co.,  44 
Fed.  294,  300.  That  a  motion  for 
the  appointment  of  a  receiver  can- 
not be  made  at  the  hearing  of  a 
motion  for  an  injunction  against  an 
interference  with  a  railroad  claimed 
to  be  in  the  possession  of  the  mov- 
ing party,  St.  L.,  K.  C.  &  C.  Ry. 
Co.  V.  Dewees,  23  Fed.  691.  That 
a  motion  to  suppress  ■  depositions 
brings  up  the  regularity  of  an  ex 
parte  order  directing  them  to  be 
taken,  as  weU  as  the  competency  of 
the  witness  examined,  if  the  party 
moving  to  suppress  has  never  done 
anything  to  waive  the  objection, 
Bradley,  J.,  in  Eslava  v.  Mazange, 
1  Woods.  623,  627.  It  was  held, 
that,  when  the  notice  specified  an 
application  to  punish  a  party  in  con- 
tempt of  court,  under  the  general 
prayer  for  relief  an  order  requiring 
him  to  deposit  certain  monies  in  a 
Trust  Company  could  not  bo 
granted.  Matter  of  Weeks  v.  Coe, 
111  App.  Div.  337.  See  Boston  Nat. 
Bank  v.  Armour,  50  Hun.  176,  177. 
28Danieirs  Ch.  Pr.  (2d  Am.  ed.) 
1792,  1793. 


§251J 


XDTH'i;    (»F    .\1HT10.\ 


ritii 


discourage  when  directing  as  to  costs  tlie  making  of  separate 
motions  for  objects  which  might  have  been  conveniently  ob- 
tained by  a  single  application.^^  It  is  irregular  to  grant  affirm- 
ative relief  to  a  party  opposing  a  motion,  when  he  has  served 
no  notice  of  his  application  for  the  same;^°  but  this  objection 
unless  taken  at  the  time  or  by  a  motion  to  set  aside  the  order 
upon  that  ground  is  waived. ^^  After  notice  of  a  motion  has 
been  served,  it  cannot  be  withdrawn  without  the  consent  of  the 
court.^^ 

A  motion  may  be  made  by  any  jiarty  to  a  cause  except  one 
who  is  in  contempt. ^^  It  has  been  said:  that  a  party  in  con- 
tempt cannot  move  for  any  other  purpose  than  to  dischai'ge 
the  contempt  proceedings^^*  or  to  expunge  scandal  from  the 
record;  ^^  and  in  such  ca-ses  he  should  apply  by  petitioji.^^  The 
rule  in  the  Federal  courts,  however,  is  that  he  is  only  debarred 
from  applications  which  are  not  of  strict  right,  l)u1  arc  )nattei-s 
of  favor  in  the  discretion  of  the  court,^'''  sueh  as  an  a])plica- 
tion  to  open  a  default,^^  and  that  his  answer  cannot  be  stricken 
out  of  the  record  nor  can  he  be  denied  a  hearing.^^ 

No  one  should  join  in  a  notice  for  a  motion  in  which  he  is  not 
directly  interested.*"  The  joinder  of  one  disinterested  party 
with  others  who  had  an  interest  was  held  in  England  a  suffi- 
cient reason  for  refusing  the  whole  motion.*^ 

A  motion  in  the  couree  of  proceedings  under  an  information 
cannot  be  made  on  behalf  of  the  relators,  but  onlv  on  behalf 


29Hawke  v.  Kemp,  3  Beav.  288. 

30  Garcie  v.  Sheldon,  .3  Barbour 
(N.  Y.)   232. 

31  Holmes  v.  Conway,  241  V.  S. 
624. 

32  People  v.  Hart,  N.  Y.  L.  J. 
June  5th,  1905. 

SSDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1787;  Nicholson  v.  Squire,  16  Ves. 
259,  260;   infra,  §431. 

34Danieirs  Ch.  Pr.  (2d  Am.  ed.) 
554-558,  1787  Anon.,   5  Ves.  656. 

35  Everett  v.  Prythergeh,  12  Sim. 
363. 

36  Lord  Eldon  v.  Nicholson  ^•. 
Squire,  16  Ves.  259,  260. 


37Hovey  v.  Elliott,  167  U.  S.  409. 
42  L.  ed.  215. 

38  Ellingwood  v.  Stevenson,  4 
Sandf.  Ch.  (N.  Y.)   366. 

39  Hovey  v.  Elliott,  167  U.  S.  409. 
42  L.  ed.  215;  Sibley  v.  Sibley,  76 
App.  Div.  (N.  Y.)  132,  136.  Coniro 
Walker  v.  Walker,  82  N.  Y.  2(i(i; 
Pickett  v.  Ferguson,  45  Ark.  177. 
191.  See  Bennett  v.  Bennett,  208 
T'.  8.  505,  52  L.  ed.  590,  infra,  §  431. 

MDaniell's  Ch.  Pr.  (2d  Am.  ed.^ 
1793;  Folland  v.  Lamottc,  10  Sim. 
486. 

41  Folland  v.  Lamotte,  10  Sim. 
486. 


1262 


MOTIONS   AND   PETITIONS 


[§252 


of  the  Attorney-General  or  district  attorney.*^  Where  it  is  clearly 
for  the  interest  of  a  person  under  a  disability  to  make  a  mo- 
tion, and  he  has  no  next  friend,  or  his  next  friend  refuses  to 
do  so,  a  next  friend  for  the  purposes  of  the  application  may 
move  on  his  behalf.*' 

After  a  motion  has  been  denied,  it  cannot,  without  leave  of 
the  court,  be  renewed  upon  the  same  papers,  nor  upon  addi- 
tional proof  of  facts  that  existed  at  the  time  the  original  motion 
was  made ;  **  but  where  the  new  motion  is  made  on  facts  that 
have  occurred  since  the  former  motion  was  made,  no  leave  to 
renew  is  necessary,  and  the  motion  may  be  made  as  a  matter 
of  right. *s  Leave  to  renew  will  not  be  granted  when  the  time  to 
appeal  has  expired.*^  The  fact  that  no  formal  leave  to  renew 
a  motion  on  additional  papers  was  granted  does  not  necessarily 
determine  that  a  second  motion  made  on  an  order  to  show  cause 
is  not  a  renewal ;  the  grant  of  the  order  to  show  cause,  and  the 
hearing  of  the  second  motion  on  the  original  and  additional 
papers  is,  in  effect,  a  grant  of  leave  to  renew,  and  a  renewal." 

§252.  Argument  of  motions.  The  manner  of  bringing  mo- 
tions to  a  hearing  is  regulated  by  local  rule  or  usage  differently 
in  the  different  circuits.  Either  no  method  is  observed,  and 
motions  are  made  by  counsel  as  they  catch  the  judge's  eye,  or 
a  calendar  is  made  and  called  upon  which  motions  are  placed 
by  the  clerk  in  the  order  in  which  they  were  first  brought  to  his 
attention.  In  the  Supreme  Court  of  the  United  States  the  At- 
torney-General and  the  Solicitor-General  take  precedence.^ 


42Atty.  Gen,  v.  Wright,  3  Beav. 
447. 

43  Cox  V.  WrigM,  9  Jur.  (N.  S.) 
981;  Guy  V.  Guy,  2  Beav.  460; 
Furtado  v.  Purtado,  6  Jur.  227; 
supra,  §§  90,  91. 

44  Mitchell  v.  Allen,  12  Wendell 
(N.  Y.)  290;  Sheehan  v.  Carvalho, 
12  App.  Div.  (N.  Y.)  430;  Haskell 
V.  Moran,  117  App.  Div.  (N.  Y.) 
251,  252 ;  De  Lacy  v.  Kelly,  147 
App.  Div.  (N.  Y.)  37. 

45  Le  Lacy  v.  Kelly,  147  App.  Div. 
(N.  Y.)   37. 

46;Stierle  v.  Union  Eailroad  Co., 
11  Misc.  (N.  Y.)  124;  Matter  of  Sil- 
liman,    38    Misc.    (N.   Y.)    226;    A 


Klipstein  &  Co.  v.  Marcnmedt,  39 
Misc.  (N.  Y.)  794;  Security  Ware- 
house Co.  v.  Am.  Exchange  Nat. 
Bank,  per  Hendrick,  J.,  N.  Y.  L.  J., 
May  7,  1910.  See  Ee  Thompson, 
C.  C.  A.,  264  Fed.  913. 

47  Harris  v.  Brown,  93  N.  Y.  390. 

§  252.  1  Lord  Campbell  has  thus 
described  the  former  English  prac- 
tice, which  was  abolished  by  Lord 
Mansfield,  whose  rules  for  the  hear- 
ing of  motions  at  common  law  were 
followed  by  the  Court  of  Chancery: 
"Day  by  day  during  the  term,  each 
counsel  when  called  upon  had  been 
accustomed  to  make  as  many  mo- 
tions  successively   and   continuously 


§252] 


ARGUMENT  OF  MOTIONS 


12G:j 


"Each  district  court  shall  establish  reg-ular  times  and  places, 
not  less  than  once  each  month,  when  motions  requiring  notice 
and  hearing  may  be  made  and  disposed  of;  but  the  judge  may 
at  any  time  and  place,  and  on  such  notice,  if  any,  a-s  he  may 
consider  reasonable,  make  and  direct  all  interlocutory  orders, 
rulings  and  proceedings  for  the  advancement,  conduct  and  hear- 
ing of  causes.  If  the  public  interest  permits,  the  senior  cir- 
cuit judge  of  the  circuit  may  dispense  with  the  motion  day  dur- 
ing not  to  exceed  two  months  in   the  j^ear  in   any  district.  "^ 

When,  at  the  hearing  of  a  motion,  the  opposite  parly  is  not 
represented,  proof  of  service  must  be  shown  by  affidavit,  or 
admission,  and  the  hearing  then  proceed  ex  parte}  When  the 
moving  party  does  not  then  appear,  his  motion  will  be  dismissed. 
When  botli  sides  are  represented,  the  moving  part}^  has  the 
right  of  opening  and  replying.*  The  English  rule  was  that, 
"in  injunction  cases,  where  upon  an  order  to  dissolve  an  in- 
junction nisi  the  plaintiff  shows  cause  upon  the  merits  con- 
fessed in  the  answer;  then  no  reply  is  allowed,  the  motion  for 


as  he  pleased.  The  consequence  was, 
that  by  the  time  the  Attorney  and 
Solicitor-General,  and  two  or  three 
other  Dons,  had  exhausted  their  mo- 
tions, the  hour  had  arrived  for  the 
adjournment;  and  as  the  counsel  of 
highest  rank  was  again  called  to  at 
the  sitting  of  the  court  next  morn- 
ing, juniors  had  no  opportunity  of 
making  any  motions  with  wiiich 
they  might  be  intrusted  till  the  last 
day  of  the  term,  when  it  was  usual, 
as  a  fruitless  compliment  to  them, 
to  begin  with  the  back  row, — after 
the  time  had  passed  by  when  tlieir 
motions  could  be  made  with  any 
beneflt  to  their  clients.  TIic  conse- 
quence was,  that  young  men  of 
promise  were  unduly  depressed,  and 
more  briefs  were  brought  to  the 
leaders  than  there  was  time  for 
them  to  read,  even  had  they  been 
toiling  all  night  at  their  chambers 
instead  of  siting  up  in  the  House 
of    Commons,  —  absorbed    in    party 


struggles.  Thus  the  interests  of  the 
suitors  were  in  danger  of  being  neg- 
lected, and  the  judges  did  not  re- 
ceive the  fair  assistance  from  the 
bar  in  coming  to  a  right  conclusion 
which  they  were  entitled  to  expect. 
To  remedy  these  evils,  a  rule  Avas 
made  that  the  counsel  should  only 
make  one  motion  apiece  in  rotation  ; 
and  that  if  by  chance  the  court  rose 
before  the  whole  bar  had  been  gone 
through,  tlie  motion  should  begin 
next  moniiiig  with  him  wiiose  turn 
it  was  to  move  at  tiie  adjournement. 
The  business  was  thus  both  more 
equally  distributed  and  much  bet- 
ter done."  Campbell's  Lives  of  the 
Chief  Justices,  eh.  xxxiv,  pp.  ;!98, 
399.  See  also  Daniell's  Ch.  Pr.  (3d, 
Am.  ed.)  1797. 
2Eq.  Rule  6. 

3  Daniell's  Ch.   Pr.    (l2d    Am.   ed.) 
1799. 

4  Ibid. 


1264  MOTIONS    AND    PETITIONS  |§  252 

the  order  nisi  being  considered  as  the  application,  to  which  the 
plaintiff  answers  by  showing-  eanses  upon  the  merits ;  after  this, 
the  defendant's  counsel  is  allowed  to  argue  against  the  cause 
shown  by  the  plaintiff,  and  this  is  considered  as  the  reply.  "^ 
As  a  general  rule,  no  person  can  be  heard  in  support  of  a  mo- 
tion unless  he  has  been  one  of  the  parties  who  gave  notice  of 
it.^  But  when  the  object  of  a  motion  is  to  reverse  the  conclu- 
sion of  a  master,  it  seems  that  all  persons  interested  in  the 
master's  report  are  entitled  to  be  heard  in  its  support.'^ 

Proof  of  facts,  which  are  not  established  by  documents,  is 
then  regularly  given  by  affidavits ;  ^  but,  in  the  Circuit  Court 
of  the  United  States  for  the  Eastern  District  of  Pennsylvania, 
a  rule,  which  has  been  held  to  be  valid,®  provides:  that  "on 
all  motions  or  rules  to  show  cause,  on  the  hearing  of  which, 
facts  are  to  be  investigated,  the  testimony  of  witnesses  shall 
be  taken  by  deposition  in  writing  *  *  *  and  no  witness 
shall  be  examined  at  the  bar  unless  by  special  previous  order 
of  the  court ; "  ^®  and  a  witness  there  may  be  subpoenaed  to 
give  testimony  by  deposition  for  use  on  such  a  hearing  in  an 
action  at  law.^^ 

At  the  hearing,  if  the  English  practice  which  prevails  to 
some  extent  in  the  First  Circuit  should  be  followed,  any  affi- 
davit might  be  read  by  either  party  that  had  been  filed  in  the 
clerk's  office  before  the  hearing.  If  an  affidavit  were  filed  too 
late  for  the  other  side  to  take  a  copy  of  it,  or  to  obtain  an  affi- 
davit controverting  facts  stated  therein,  that  was  a  ground  for 
moving  to  postpone  the  hearing.  No  affidavit  filed  previous  to 
the  entry  of  the  motion  could  be  used  by  the  moving  party, 
unless  he  had  in  his  notice  of  motion  stated  specifically  that 
he  intended  to  use  it.  By  permission  of  the  court,  subsequent 
affidavits  may  be  served,  provided  that  the  opposite  party  is 
given  a  reasonable  opportunity  to  answer  the  same.^^  A  sepa- 
rate notice  to  that  effect,  if  served  a  reasonable  time  before  the 

6  Ibid.  1<>  Rule  7,  §  4.     Despeaux  v.  Penn- 
eStubbs  V.  Sargon,  3  Beav.  408;        sylvania  R.  Co.,  147  Ted.  926. 

Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1793.  11  Despeaux    v.    Pennsylvania    R. 

7  Johnston  v.  Todd,  5  Beav.  394 :        Co.,  147  Fed.  926. 

Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1793.  12  Eubino    v.    Mariano,    65    App. 

8  Infra,  §§  334-338.  •  Div.   (N.  Y.)   314,  317. 

9  Despeaux   v.   Penn.   R.    Co.,    147 
Fed.  926. 


i^253i 


PETITIONS    IN    GENERAL 


126: 


hearing  of  the  motion,  might,  however,  be  sufficient. ^^  This 
subject  is,  however,  by  local  rule  or  custom  regulated  dift'erently 
in  the  different  circuits.  A  verified  answer  has  the  effect  of 
an  affidavit.^* 

In  New  York,  no  affidavit  in  chief  can  be  read  in  support  of 
a  motion  unless  a  copy  of  the  same  has  been  served  on  the  ad- 
verse party.^^  Papers  upon  file  can  be  read  in  support  or  in 
opposition  to  the  motion. ^^  It  is  the  safer  practice  for  the  mov- 
ing party  to  specify  them  in  his  notice.^'  Whether  a  notice 
stating  that  the  motion  will  be  made  "upon  all  the  proceedings 
herein"  is  sufficient,  is  a  subject  upon  which  the  authorities 
are  in  conflict. ^^  It  has  been  held  that  a  petition  which  has  been 
withdrawn,  abandoned  and  dismissed  could  not  be  read  by 
other  petitioners  who  had  not  adopted  the  same  by  a  reference 
in  their  papers.^^  Affidavits  upon  information  and  belief,  where 
the  grounds  of  the  belief  are  set  forth,  may  be  read  in  support 
of  a  motion,^*'  and  other  proof  which  would  be  incompetent 
upon  a  trial  may  be  used.^^  In  a  proper  case  a  bill  of  partic- 
ulars may  be  required  of  a  moving  party.^^ 

§  253.  Petitions  in  general.  A  petition  is  a  re(iuest  in  writ- 
ing directed  to  the  judge  or  judges  of  the  court,  and  showing 
some  matter  or  cause  whereupon  the  petition  prays  some  direc 


ISDaniell's  Ch.  Pr.  (2d  Am.  eil.) 
1797,  1798. 

14  Dady  v.  Georgia  &  A.  Ry.  Co., 
112  Fed.  838,  844. 

IB  Nortlinij)  v.  Village  of  Sidney, 
97  App.  Div.  (N.  Y.)  271. 

16  Moliver  v.  Finegan,  175  App. 
Div.   (N.  T.)   180. 

17  Faxon  v.  Mason,  87  Hun  (N. 
Y.)  139;  Southack  v.  Southaek,  61 
App.  Div.   (N.  Y.)   105. 

ISHessberg  v.  Haber,  N.  Y.  Sup. 
Ct.  Sp.  Tm.  per  Delehanty,  J.,  N.  Y. 
L.  J.  Dec.  13,  1913  (holds  that  it  is 
sufficient)  ;  Moliver  v.  Finegan,  175 
App.  Div.  (N.  Y.)  180  (that  the 
statement  "upon  all  the  pleadings 
and  proceedings  had  herein"  is  suf- 
ficient to  authorize  the  reading  of 
the    pleadings)  ;    Contra,    Faxon    v. 


Mason,  87  Hun  (N.  Y.)  139;  Sou- 
thack v.  Southack,  61  App.  Div.  (N. 
Y.)  105. 

19  Rospigliosi  v.  New  Orleans  M. 
&  C.  R.  Co.,  C.  C.  A.,  237  Fed.  341. 

20  City  of  Detroit  v.  Detroit  City 
Ry.  Co.,  54  Fed.  1. 

21  Casey  v.  Cincinnati  Typographi- 
cal Union  No.  3,  12  L.R.A.  193,  45 
Fed.  135,  147;  Coeur  d'Alene  Am. 
Mining  Co.  v.  Mining  Union  of  War- 
den, 19  L.R.A.  382,  51  Fed.  2(i0: 
Mercantile  Trust  Co.  v.  Texas  &  V. 
Ry.  Co.,  51  Fed.  529,  542;  Buck  v. 
Hermance,  1  Blatchf.  322;  Mathews 
V.  Ironclad  Mfg.  Co.,  19  Fed.  321; 
infra.  §«;  293.  334. 

22  Hane  v.  Crown  &  Keystone  Co., 
223  Fed.  439. 


1266  MOTIONS   AND    PETITIONS  [§  253 

tion  or  order.^     It  may  be  made  by  one  who  is,  or  by  one  who 
is  not,  a  party  to  a  cause  pending  in  the  court.    Lord  Erskine 
said  formerly:     "I  do  not  find  that  there  are  any  precise  or 
positive  boundaries  between  motions  and  petitions,  as  they  are 
to  be  applied  to  carry  into  effect  decrees  and  orders,  so  as  to 
exclude  all  discretion  in  the  court  to  grant  or  refuse  them,  ac- 
cording to  circumstances ;  but,  generally  speaking,  motions  which 
have  for  their  object  the  giving  effect  to  decrees  or  orders,  should 
be  confined  to  cases  where  the  order  which  is  to  be  made  upon 
the  motion  arises  out  of  recent  proceedings  upon  which  there 
is  no  doubt;  for  as  the  adverse  party  knows  nothing  but  by 
the  notice,  containing  only  the  name  of  the  cause  and  what  is 
prayed  of  the  court,  the  proceedings  ought  to  be  recent  and 
notorious,  so  as  that  the  adverse  party  may  be  supposed  to  be 
perfectly  cognizant  of  all  the  steps  and  proceedings  in  the  cause, 
as  much  as  if,  at  a  greater  expense,  they  were  recited  in  the 
petition.  "2     But  petitions  are  now  rarely  filed  by  a  party  to 
a   cause,  since  any  relief  which  he  desires  can  usually  be  ob- 
tained equally  well  by  a  motion  supported  by  an  affijdavit  con- 
taining the  allegations  which  would  be  necessary  in  a  petition. 
A  party  who  by  his  contempt  has  forfeited  the  right  to  make 
a  motion  should  apply  by  petition.     It  has  been  held,  in  New 
Jersey,  that  where  a  motion  is  founded  upon  prior  proceedings 
in  the  cause,  the  proper  practice  is  to  present  the  matter  by 
a  written  petition,  so  that  the  grounds  of  the  application  can 
be  made  a  matter  of  record.^     Petitions  are  usually  filed  by 
some  person  not  a  party  in  order  to  obtain  the  benefit  of  pro- 
ceedings in  a  cause  pending  in  the  court,  or  else  to  obtain  an 
order  in  relation  to  some  matter  which  is  not  the  subject  of  any 
litigation  in  it.    Petitions  which  are  made  in  a  cause  are  termed 
cause  petitions.*    The  most  common  instances  of  cause  petitions 
are  petitions  for  the  appointment  of  a  next  friend,  petitions  of 
intervention,  petitions  for  payment  out  of  a  fund  in  the  hands 
of  an  officer  of  the  court,  and  petitions  for  leave  to  sue  a  re- 
ceiver.    But  in  most,  of  these  cases,  the  application  can  also 

§  253.     1  2  Barb.  Ch.  Pr.  579.  3  Holeomh  v.  Coryell,  12  N.  J.  Eq. 

2  Lord    Shipbrooke    v.    Lord   Hin-  289. 

chinbrook,    1,3   Ves.   387,   393.      See,  4Daiiieirs   Ch.  Pr.    (2d  Am.  ed.) 

however,    Nicholson    v.     Squire,    16  1801. 
Ves.  259,  260. 


§  204J  FORM    OF    AND    PRACTICE    UI'OX    PKTITIONS  1207 

be  made  by  motion,  unless  a  long  statement  of  facts  is  needed 
to  show  the  right  of  the  ap])licant  to  relief.*  It  has  been  held 
that  the  right  to  intervention,  for  which  no  provision  has  been 
made  by  a  previous  order  or  dei'ree,  can  only  be  made  by  a 
petition.*^  The  most  common  instances  of  petitions  which  are 
not  cause  petitions  are  petitions  for  the  appointment,  removal, 
or  resignation  of  a  trustee,  and  jietitions  for  the  appointment 
of  the  guardian  of  an  infant,  and  the  maintenance  of  the  infant 
out  of  his  property.  In  New  York,  applications  affecting  trust 
funds  maj^  be  instituted  by  petition."'^ 

After  a  decree  which  purports  to  finally  dispose  of  the  suit, 
one  plaintiff  cannot  obtain  relief  against  another  by  means  of 
a  petition  setting  up  matters  which  could  not  have  been  intro- 
duced by  an  amended  or  supplemental  bill;  at  least  without 
notice  to  the  party  against  whom  he  seeks  relief.^  Ordinarily, 
a  petition  cannot  be  presented  in  a  cause  before  the  bill  has 
been  filed.^  A  i)etition  for  leave  to  sue  /"  foinna  pauperis  is 
an  exception  to  this  rule;"  and  in  an  extraordinary  case  a 
stay  order  might  ]ierhaps  be  granted  upon  a  petition  before 
the  filing  of  a  bill."  The  objectioji,  that  a  party  who  has  pro- 
ceeded by  a  petition  should  have  filed  a  cross-bill,  a  supple- 
mental ))ill,  or  a  supplemental  answer,  is  too  late  when  not  taken 
till  after  an  answer  to  the  petition  and  a  decree  thereupon.^" 
A  paper  improperly  styled  a  petition  may,  if  it  contains  the 
necessary  allegations,  be  sustained  as  a  dependent  original  bill,^' 
and  a  paper  improperly  described  as  a  cross-bill  or  other  bill 
not  original,  may  be  sustained  as  a  petition. ^^ 

§254.  Form  of  petitions  and  practice  upon  them.     A  ]ieti- 
tion   should   be  properly   entitled   in   the   cau.se  in   which   it   is 

6. Tones   v.  Koherts,   12   Sim.   189;  11  Mayor  of  London  v.  Bolt,  5  Ves. 

Barker  v.  Todd,  15  Fed.  265.  120  Daniell's  Ch.  Pr.   (2d  Am.  ed.) 

6  Grand  Trunk  Ey.  Co.  v.  Central       1801. 

Vt.  R.  Co.,  91  Fed.  561.     See  infra.  12  Kelsoy  v.  Hol)l.y,   16   Pet.   269, 

§§2o8,  259.  277,  10  L.  ed.  961,  96.*^;   Coburn  v. 

7  Matter   of   Foster,   15   Hun    (X.  Cedar  V.  C.  &  L.  Co.,  1.^8  U.  S.  196, 
Y.)  .387;  Matter  of  Ungrich,  201  N.  222,  .34  L.  ed.  876,  886. 

Y.  415.  13  Central    Tr.    Co.    of    N.    Y.    v. 

8  Smith    V.    Woolfolk,    115    U.    S.  Marietta   &   N.   G.   R.   Co.,   6.3   Fed. 
14.3,  29  L.  ed.  357.  492. 

9  Daniell's  Ch.  Pr.    (2d  Am.  ed.)  14  Heath     v.     Erie     Ry.     Co..     9 
1801.  Blatihf.    316;    6-Hpro.    §253;    idfrn. 

10  lufra,  §413.  §259. 


1268  MOTIONS   AND   PETITIONS  [§  254 

presented.^  When  not  a  cause  petition,  a  petition  is  entitled 
"In  the  matter  of  the  application  of,"  &c.  The  petitioner,  if 
not  a  party  to  a  cause  in  which  the  petition  is  filed,  should 
state  his  name,  residence,  and  description.^  Where  a  petition 
is  founded  upon  a  former  decree  it  is  sufficient  to  state  that 
decree  without  setting  out  the  papers  upon  which  that  decree 
was  rendered.^  Where  its  title  recites  the  name  of  a  pending 
suit  or  proceeding,  the  petition  need  not  state,  in  its  bodj',  the 
pendency  of  the  same ;  *  although  the  better  practice  is  to  make 
such  a  statement.  A  petition  should  contain  no  scandal  or 
impertinence;  which,  as  in  any  other  proceedings,  may  be  ex- 
punged. 

It  is  the  usual  practice  to  verify  a  petition  by  the  oath  of 
the  petitioner.^  An  affidavit  by  the  petitioner,  that  the  alle- 
gations in  the  petition  "are  trae  as  he  verily  believes,"  was 
held  to  be  sufficient;  and,  in  the  absence  of  a  traverse,  they 
were  presumed  to  be  true  upon  an  appeal.^  A  petition  need 
not  be  signed  by  counsel  unless  it  seeks  a  rehearing  on  appeal.' 
Petitions  are  usually  signed  by  the  party  making  them,  either 
personally  or  by  his  solicitor.® 

' '  Petitions  are  either  for  orders  of  course,  or  for  special  orders. 
Petitions  for  orders  of  course  are  forthwith  granted,  without 
any  attendance  being  ordered;  if  they  are  for  special  matters 
a  day  is  appointed  for  hearing  them.  Most  things  which  may 
be  moved  for  of  course,  may  also  be  obtained  as  of  course,  upon 
petition. ' '  ^  All  petitions  which  are  for  matters  not  granted 
as  of  course  must  be  served  upon  all  parties  interested  in  the 
matter  prayed  for  in  them.  Service  is  made  substantially  in 
the  same  way  and  at  the  same  time  before  the  hearing  as  that 
of  notices  of  motions.^"    If  actual,  and  not  constructive,  service 

§254.     IDaniell's    Ch.    Pr.     (2d.  &  Trust  Co.   v.   Louisville,  New  Al- 

Am.  ed.)   1802.  bany  &   C.   Ey.    Co.,   103   Fed.    110, 

2  Glazhrook  v.  Gillatt,  9  Beav.  492.  115. 

3  Davis  V.  Davis,  65  Fed.  380.  TDaniell's  Ch.   Pr.    (2d  Am.  ed.) 

4  In  re  Goldberg,  117  Fed.  692.  1803. 

SDaniell's  Ch.   Pr.    (2d  Am.  ed.)  8  Daniell's  Ch.   Pr.    (2d  Am.   ed.) 

1803;    Eq.  Rule  21,   §156,  supra.  1803. 

6  Louisville    Trust    Co.    v.    Louis-  9  Daniell's   Ch.   Pr.    (2d  Am.  ed.) 

ville,  New  Albany  &  C.  Ry.  Co.,  174  1802. 

U.  S.  674,  687-689,  43  L.  ed.  1130,  10 See    Rules    5    and    6    Daniell's 

1135,  1136.  s.  c,  as  Farmers'  Loau  Ch.  Pr.  (2d  Am.  ed.^  1804. 


§  2,35] 


ORDERS 


12(i<) 


is  required,  it  seems  that  it  must  be  made  by  deliveriuj^  a  copy 
of  the  petition,  and  at  the  same  time  showing  the  original  to 
the  person  served, ^^  unless  the  court  otherw'ise  directs.  By 
the  Ohancerj^  practice  objections  to  the  form  of  a  petition  could 
regularly  be  taken  only  by  demurrer.^^  j^-  ]y^^  j^g^.^^  said:  tliat 
in  the  case  of  a  petition  for  intervention,  the  right  of  the  peti- 
tioner to  intervene  should  be  contested  by  plea,  demurrer  or 
motion,  and  is  waived  by  an  answer  upon  the  merits.^^  By 
answering  a  respondent  loses  his  right  to  demur,^*  and,  it  has 
been  held,  waives  the  objections  that  the  petitioner  had  a  com- 
plete and  adequate  remedy  at  law,^^  that  he  should  have  pro- 
ceeded by  bill  instead  of  by  petition ;  ^^  and,  if  a  receiver,  that 
he  has  not  obtained  leave  to  sue.^'''  Adverse  parties  may  file 
answers  denying  tlie  facts  stated  in  a  petition,  or  setting  up 
other  facts  in  avoidance.  Such  answers  should  be  verified  by 
afltldavit.^^  If  the  parties  are  at  issue  as  to  the  facts,  accord- 
ing to  the  more  formal  practice  testimony  may  bo  laken  as  in 
the  regular  course  of  a  suit ;  ^®  but  the  more  usual  course  is 
for  the  parties  on  either  side  to  support  their  claim  by  aflfidavits, 
in  the  same  manner  as  when  supporting  or  opposing  a  mo- 
tion.^** Proceedings  upon  the  hearing  of  petitions  are  similar 
to  those  upon  the  hearing  of  motions.^^  It  has  been  said  by 
Daniell  that  a  petition  cannot  be  amended  by  adding  to  it  a 
statement  of  facts  which  have  occurred  since  it  was  filed :  ^^ 
but  an  English  judge  has  held  othei*wise.^' 

§255.  Orders.  An  order  is  a  direction  of  the  court  or  a 
judge  thereof  in  writing.^  A  telegram  may  be  an  order,  but  a 
message  by  telephone  is  not.^     The  absence  of  a  formal  order 


11  Daniell 's  Ch.  Pr.   (2cl  Am.  ed.) 
1804. 

12  U.  S.  R.  S.,  §954;   Newman  v. 
Moody,  19  Fed.  858. 

13  Horn  v.  Pere  Marquette  R.  Co., 
151  Fed.  626,  629.     See  infra,  §  259. 

14  Newman  V.Moody.  19  Fed.  858. 
16  Newman  v.  Moody,  19  Fed.  858. 

16  Newman     v.     Moody,     19    Fed. 
858;  Horn  v.  Pere  Marquette  R.  Co., 

.151  Fed.  626,  629. 

17  Newman  v.  Moody,  19  Fed.  85S. 
ISMitford's  &  Tyler's  PI.  448. 
IftMitford's  &  Tyler's  PI.  4-18. 

Fed.    Prnc.    Vol.    11--10 


ZODaniell's  Ch.  Pr.  (5th  Am.  ed.) 
1608. 

21Danipirs  Ch.  Pr.  (2d  Am.  ed.) 
1805. 

22Danieirs  Ch.  Pr.  (5th  Am.  ed.) 
1610. 

23Malins,  V.  C.  In  re  West- 
lirook's  Trusts,  L.  R.  11  Eq.  252. 

§255.  iSee  U.  S.  R.  S..  §  719; 
Klein  v.  Southern  Pac.  Co..  140  Fed. 
218. 

2  See  Sehofield  v.  Plorsc  S.  C.  Co.. 
65  Fed.  433,  435;  State  v.  Holmes, 
-6  Ta.  588.  41    Am.  Rep.  121. 


1270  MOTIONS    AND    PETITIONS  [§255 

of  a  court  need  not  necessarily  prevail  over  its  essential  action ; 
and  a  court  of  review  may  treat  the  case  as  if  an  order,  evi- 
dently intended,  had  been  made.^    A  court  order  should  regu- 
larly have  a  caption  stating  that  it  was  granted  at  a  term  of 
the  court  and  a  direction  to  the  clerk  to  enter  the  same,  which 
may  be  signed  by  the  judge's  initials  although  in  the  Federal 
courts  it  is  the  custom  for  the  judges  to  sign  such  orders  with 
their  full  name  and  the  direction  for  entry  is  often  omitted. 
A  judge's  order  has  no  direction  to  the  clerk,  is  signed  by  the 
judge,   is  sometimes  not  entered  when  signed  and  is  usually 
not  filed  until  its  return  day.*     Orders  are  described  as  either 
judge's  orders  or  court  orders.     The  distinction  may  be  of  im- 
portance,  since,   formerly   at   least,   a  judge's   order  upon  an 
application  for  habeas  corpus  was  not  appealable.^     The  rules 
of  the  District  Court  for  the  Southern  District  of  New  York 
provide :     "In  any  action  or  proceeding  any  order,  whether 
known  in  practice  as  a  court  order  or  judge's  order,  may  be 
made  and  entered  by  any  judge.  "^     It  has  been  held  in  New 
York  that  when   an  order  which  should  have  been  a  judge's 
order  was  in  the  form  of  a  order  of  the  Court,  in  the  absence 
of  any  objection  made  at  the  time  and  therein  noted,  it  must 
be  presumed  that  both  sides  consented  that  it  should  be  made 
by  the  court.'' 

It  has  been  said :  that  a  court  cannot  make  an  order  nunc  pro 
tunc,  as  of  a  preceding  term;  although  the  judge  has,  at  such 
preceding  term,  expressed  his  willingness  to  make  the  same.* 
When  contained  in  a  decree,  an  order  is  termed  a  decretal  order. 
An  order  is  regularly  entitled  in  the  cause  in  which  it  is  entered, 
and  it  is  irregular  to  entitle  the  same  order  in  several  cases.^ 
Such  orders,  when  not  objected  to,  are  valid,^®  and  where  the 
parties  to  the  two  suits  were  the  same,  and  orders  entitled  ia 
both  were  thus  made  concerning  a  receivership  under  an  order 

3  Gila   Bend  Reservoir  &  Irr.   Co.  7  Beal    v.    Greenbaum,    18.3    App. 
V.   Gila  Water  Co.,  202   IT.   S.   270,       Div.  (N.  Y.)  2.38. 

50  L.  ed.  1023.  8  Klein  v.  Southern  Pac.  Co.,  140 

4  Beal    V.    Greenbaum,    183    App.       Fed.  213. 

Div.  (N.  Y.)   238.  9  August  v.  Fourth  Nat.  Bank,  9 

5  Carper  v.  Fitzgerald,  121   U.  S.       N.  Y.  Supp.  270. 

87,  30  L.  ed.  882.     See  §  467,  ivfra.  10  Gila  Bend  Reservoir  &  Irr.  Co. 

6U.  S.  D.  C,  S.  D.  N.  Y.,  Rule       v.  Gila   Water  Co.,  202  U.   S.   270, 
25.  273,  50  L.  ed.  1023.  . 


§255] 


0EDERS 


1271 


in  oue;  it  was  held,  that  the  objection  that  there  had  been  no 
order  formally  extending  the  receivership  to  the  other  suit, 
could  not  subsequently  avoid  an  order  therein  for  the  sale  of 
property  by  such  receivor.^^ 

It  has  been  heUl :  that  restraining  orders  may  be  made  in  a 
suit,  before  the  bill  in  equity  is  filed ;  ^^  that  a  receiver  cannot 
be  appointed  upon  petition,  before  the  bill  is  filed  ;^^  that  a 
receiver  ma}-  be  appointed  by  a  judge  at  chambers  upon  the 
presentation  of  a  bill  and  answer  which  have  not  been  filed,  in 
an  order  containing  a  direction  that  it  shall  take  effect  upon 
the  filing  thereof;  that  thereupon  the  appointment  relates  back 
to  the  date  of  the  judge's  signature,  so  as  to  cut  off  all  inter- 
vening rights ;  ^^  aiid  that  when  an  order  is  filed  before  the 
date  recited  in  the  same,  it  takes  effect  from  its  filing,  and  not 
from  the  latter  date.^* 

Orders  may  be  made  at  any  place  within  the  territorial  juris- 
diction of  the  court. ^°  "Tlic  District  Courts,  as  courts  of  ad- 
miralty and  as  courts  of  equity,  shall  be  deemed  always  open 
for  the  purpose  of  filing  any  pleading,  of  issuing  and  returning 
mesne  and  final  process,  and  of  making  and  directing  all  in- 
terlocutory motions,  orders,  rules,  and  other  proceedings  pre- 
paratory to  the  hearing,  upon  their  merits,  of  all  causes  pend- 
ing therein.  Any  district  judge  may,  upon  reasonable  notice 
to  the  parties,  make,  direct,  and  award,  at  chambers  or  in  the 
clerk's  office,  and  in  vacation  as  well  as  in  terra,  all  such  proc- 
ess, commissions,  orders,  rules,  and  other  proceedings,  when- 
ever the  same  are  not  grantable  of  course,  according  to  the  rules 
and  practice  of  the  court."  ^''^    AVhatever  a  judge  may  lawfully 


11  Gila  Bend  Reservoir  &  Trr.  Co. 
V.  Gila  Water  Co.,  202  IT.  S.  270, 
:10  L.  ed.  102.1. 

12  St.  Louis  &  S.  F.  R.  Co.  v.  Had- 
ley,  155  Fed.  220. 

13  In  re  Bryant,  96  Fed.  257;  and 
cases  cited  infra,  §  .315. 

14  Horn  V.  Pere  Marquette  R.  Co., 
151  Fed.  626,  63.3.  Contra,  Wilcox 
V.  Nat.  Shoe  &  Leather  Co.,  67  App. 
Div.  (N.  Y.)  466. 

16  In  re  MeCall,  C.  C.  A.,  145  Fed. 
898. 

16  In  re  Tampa  S.  R.  Co.,  168  U. 


S.  .583,  588,  42  L.  ed.  589,  590; 
Goodyear  Dental  Vulcanite  Co.  v. 
Folsom,  .3  Fed.  509.  It  has  been 
held,  tliat  ■when  a  District  Judgti 
has,  under  the  order  of  the  Circuit 
Judge,  tried  a  case  in  another  dis- 
trict than  his  own,  he  may  licar  in 
his  own  district  a  motion  for  a  new 
trial  when  the  counsel  for  all  par- 
ties waive  his  return  to  the  district 
of  the  trial  for  the  purpose  of  hear- 
ing and  deciding  the  motion.  Cliees- 
man  v.  Hart,  42  Fed.  98,  105. 

17  .Tud.   Code,   §  9,   .36   Stat,  at   L. 


1272  MOTIONS    AXD    PETITIONS  [§  255 

do  in  chambers,  he  may  do  at  any  other  place  within  the  dis- 
trict.^^  It  has  been  held  that  the  clerk  may  make  entries  of 
adjournments  by  a  rubber  stamp,i^  and  that  they  may  be  re- 
corded on  days  subsequent  to  their  entry  at  any  time  during 
the  term.20  j^  }^as  been  held :  that  an  order  in  a  suit  in  equity, 
pending  iu  another  district  of  the  same  circuit  may  be  made 
by  a  Circuit  Judge  in  any  part  of  the  circuit.^i  Where  no 
objection  was  taken  below,  it  was  held  that  an  appeal  from 
an  order,  upon  an  application  for  the  writ  of  habeas  corpus, 
might  be  argued  before  the  Circuit  Justice  at  chambers  in  any 
district  of  the  cireuit.22  If  the  former  practice  is  followed  in 
a  District  Court  when  all  judges  authorized  to  sit  therein  are  j 

absent  from  the  circuit,  an  order  may  be  made  by  a  Justice  1 

of   the    Supreme    Court    sitting   anywhere   within   the   United  1 

States.23  Tj^g  Judicial  Code  provides  that  "no  justice  of  the 
Supreme  Court  shall  hear  or  allow  any  application  for  an  in- 
junction or  restraining  order  in  any  cause  pending  in  the  circuit 
to  which  he  is  allotted,  elsewhere  than  within  such  circuit,  or 
at  such  place  outside  of  the  same  as  the  parties  may  stipulate 
in  writing  except  when  it  cannot  be  heard  by  the  district  judge 
of  the  district.  "2*  It  is  customary  to  recite  in  an  order  or 
judgment,  upon  whose  motion  the  same  was  granted;  but  it 
has  been  said  that  this  is  not  necessary,  nor  appropriate,  al- 
though the  order  or  judgment  should  show  who  moved  for  the 

1087.     It  has  been   said:    that   any  21  Horn  v.  Pere  Marquette  E.  Co., 

order  in  a  suit  in  equity  which  tends  151   Fed.    626,   635.      Cf.   Hollon   v. 

to  prepare  the  cause  for  a  hearing,  Parker,   131   U.   S.   221,   225,   33   L. 

or    to    preserve    the    subject-matter  ed.  123,  124. 

until    a   hearing,   may   be    made    at  22  Eoberts  v.  Eeilly,  116  U.  S.  80, 

chambers.     Horn  v.  Pere  Marquette  93,  29  L.  ed.  544,  548. 

E.  Co.,  151  Fed.   626,  636.     An  or-  23  U.  S.  v.  Louisville  &  P.  C.  Co., 

der  for  the  release  of  a  vessel  which  4  Dill.  601 ;   Searles  v.  Jacksonville, 

has  been   libelled,  may   be  made  at  P.  &  M.  E.  Co.,  2  Woods,  621;  U.  S. 

chambers.       U.     S.     v.     The     Little  E.  S.,  §  719,  8  Ey.  &  Corp.  L.  J.  200. 

Charles,  1  Brock.  380 ;  Fed.  Cas.  No.  Thus,  in  United  States  v.  Louisville, 

15,613.  &c.,  Canal  Co.,  4  Dill.  601,  Fed.  Cas. 

18  Murphy  v.  Herring-Hall-Mar-  No.  15,633,  Mr.  Justice  Miller  grant- 
vin  Safe  Co.,  184  Fed.  495.  ed  an  injunction  upon  a  bill  pending 

19  Harlan  v.  McGourin,  218  U.  S.  in  the  Sixth  Circuit,  at  chambers  in 
442,  449,  54  L.  ed.  1101,  1105,  31  New  Jersey;  although  he  was  not 
Sup.  Ct.  Eep.  44,  21  Ann.  Cas.  849.  the   Justice   allotted  to  that  circuit. 

20  U.  S.  V.  Loinsville  &  N.  E.  Co.,  24  Jud.  Code,  §  264,  36  St.  at  L. 
177  Fed.  780,  785  1087. 


^2;");')! 


OKDERS 


127::5 


relief  and  what  he  asked. ^  A  recital  of  the  date  when  an 
order  was  granted,  althongh  made  in  a  subsequent  order,  was 
held  upon  appeal  to  be  conelusive.^^  The  following  recital, 
"that  defendant  would  have  no  further  affidavits  or  evidence 
upon  a  hearing  to  be  had  later  and  that  the  matter  of  a  tem- 
porary injunction  might  be  considered  upon  hearing  as  for  a 
permanent  injunction,"  was  held  to  be  a  submission  to  a  final 
hearing  and  not  a  conseiil  lo  the  order.^'  "Where  an  order  or 
judgment  grants  less,^^  or  other  relief^'  than  that  for  which 
the  mover  asks,  a  recital  thai  it  was  made  upon  his  motion  is 
erroneous,  and  if  inserted  should  be  stricken  out  upon  a  resettle- 
ment. The  recital  in  an  order  that  it  was  granted  "upon  all 
the  papers  and  proceedings"  was  said  to  be  too  indefinite.^" 
Where  improper  recitals  are  embodied  in  an  order,  it  has  been 
held  by  a  State  court :  that  the  objection  cannot  be  made  by 
an  appeal  from  the  order,  but  only  by  a  motion  for  a  resettle- 
ment and  an  apjieal  from  the  order  denying  such  motion.*^  It 
is  possible  that  in  the  Federal  courts,  there  might  be  a  remedy 
by  an  application  to  the  rircuit  Court  of  Aj^peals  for  a  man- 
damus.^^ 

It  is  usual,  though  not  indispensable,  in  the  Federal  courts, 
before  the  entiy  of  an  order  or  decree  upon  the  decision  of  the 
court  after  argument,  to  serve  upon  the  attorney  for  the  op- 
posite party  a  copy  of  the  paper  proposed  to  be  entered,  with 
a  notice  that  it  will  be  presented  for  settlement  at  a  specified 
time  and  place. ^^     If  the  attorneys  live   in   the  same  town  as 


25  Davis  v.  Fogarty,  \?,i  Ap)).  Div. 
(N.  Y.)  500. 

26  Re  National  Pressed  Brick  Co., 
C.  C.  A.,  212  Fed.  878. 

27  L.  E.  Waterman  Co.  v.  Stand- 
ard Drug  Co.,  C.  C.  A.,  202  Fed. 
167,  169. 

28  Davis  V.  Fogarty,  134  .\ipi>.  Div. 
(N.  Y.)  500. 

2«Kaymond  v.  Tiffany,  115  Ajip. 
Div.  (N.  Y.)  350,  where  terms  were 
imposed  upon  the  moving  party 
without  his  consent;  Eeetor,  &  c,  of 
St.  Stephen's  Church  v.  Eeetor,  &c.. 
of  the  Church  of  the  Transfigura- 
tion. 134  App.  Div.  (N.  Y.)  452. 


30  Faxon  v.  Mason,  87  Hun  (N. 
Y.),  139;  Southack  v.  Southack,  61 
App.  Div.  (N.  Y.)  105;  Contra, 
Hessberg  v.  Haber,  N.  Y.  Sup.  Ct. 
Sp.  Tm.  per  Delehanty,  J.,  N.  Y. 
L.  J.  December  1.1,  1913;  Moliver 
V.  Finegan,  175  App.  Div.  (X.  V.) 
180.     See  supra,  §  252. 

31  Matter  of  Radam  Microbe  Kill- 
er Co.,  114  App.  Div.  (N.  Y.)  199. 

Z2  Infra.  §457. 

33  Nevada  Nickel  Syndicate  v. 
Nat.  Nickel  Co.,  103  Fed.  391,  394. 


1274 


MOTIONS    AND   PETITIONS 


[§255 


the  judge,  one  day's  notice  of  settlement  is  usually  sufficient. 
It  is  the  better  practice  for  the  solicitor  who  obtains  an  order 
upon  an  interlocutory  application,  to  serve  a  copy  of  the  same 
upon  the  solicitor  of  the  opposite  party.  When  the  order  is 
made  without  notice  to  a  party,  in  his  absence,  it  is  the  duty 
of  the  clerk  to  mail  him  a  copy  of  the  same.^*  Usually  attorneys 
of  record  are  chargeable  with  notice  of  all  proceedings  taking 
place  in  open  court.^^ 

Ordinarily  an  order  takes  effect  from  the  day  when  the  de- 
cision was  pronounced  although  it  was  subsequently  entered.'^ 
If  the  other  party  takes  a  step  in  the  action  after  an  ex  parte 
order  has  been  obtained  but  before  its  service,  "that  step  in  itself 
regular,  the  order  which  had  been  obtained  and  not  served  cannot 
afterwards  be  acted  upon,  if  it  will  interfere  with  the  step  so 
taken.  "37 

Where  a  decree  directs  the  performance  of  a  specific  act,  it 
should  prescribe  the  time  within  which  the  act  shall  be  done,  and 
the  defendant  will  be  bound  without  further  service  to  take  notice 
thereof. 38  The  word  "instanter"  in  an  order  usually  means 
within  twenty-four  hours.^^  Ordinarily,  if  it  is  intended  to  en- 
force the  order  by  contempt  proceedings,  it  should  be  served  per- 
sonally upon  the  party  to  be  affected  by  it,*"  unless  possibly,  in 
an  extraordinary  case,  an  order  should  be  granted  allowing  sub- 
stituted service.*^ 

Interlocutory  orders  made  upon  motion  may  be  altered  or 
vacated  at  any  time  before  the  final  decree.*^  But  one  case  holds 
that  an  order  for  a  permanent  injunction  cannot  be  modified  at 


34  Eq.  Eiile  4. 

35  Rio  Graiifle  Dam  &  Irrij^ation 
Co.  V.  IT.  S.,  21  f)  U.  S.  266,  54  L.  od. 
190. 

3GEx  parte  Hookey,  4  De  G.,  F. 
&  J.  456;  Ex  parte  Whitton,  1:5  Cli. 
D.  881;  Ee  National  Pressed  Brick 
Co.,  C.  C.  A.,  212  Fed.  R.  878;  May 
V.  Cooper,  24  Hun  (N.  Y.)  7;  Hull 
V.  Thomas,  3  Edw.  Ch.  (N.  Y.)  236. 

37  Nevada  N.  S.  v.  National  N. 
Co.,  103  Fed.  391,  394. 

38  Eq.  Rule  8.    See  infra,  §  428. 


39  St.  Bernard  v.  Shane,  C.  C.  A., 
220  Fed.  852. 

40DanieTrs  Ch.  Pr.  (2d  Am.  ed.) 
1789;  Church  v.  Marsh,  2  Hare,  652. 

41  Re  Cary,  10  Fed.  622. 

42  Hunter    v.    ,    6    Sim.    429; 

Lorton  v.  Seaman,  9  Paige  (N.  Y.), 
609;  People  v.  Brewer,  4  Paige  (N. 
Y.),  405;  Stafford  v.  Brown,  4  Paige 
(N.  Y.),  360;  Penn.  Steel  Co.  v. 
N.  Y.  C.  Ey.  Co.,  221  Fed.  440; 
Calaf  V.  Fernandez,  C.  C.  A.,  2.'i9 
Fed.  795. 


§255] 


ORDERS 


1275 


a  subsequent  term.*'  Orders  made  ex  parte  upon  petition  may 
also  be  discharged  upon  motion  for  irregularity."  According  to 
the  English  practice,  orders  made  after  a  hearing  upon  a  petition 
could  not  be  altered  or  discharged  without  the  filing  of  a  petition 
for  a  rehearing,  or  upon  appeal.*^  A  court  has,  during  the  term 
at  which  it  is  entered,  the  power  to  review  and  modify  or  set 
aside  any  order  or  decree,  interlocutory  or  tinal.*^ 

The  court  has  power  by  order  to  carry  over  pending  motions 
for  determination  at  a  subsequent  term.*''  In  some  cases  the 
courts  have  adjourned  the  term  to  a  time  concurrent  to  a  subse- 
quent term  confining  the  adjournment  to  the  purpose  of  contin- 
uing proceedings  in  a  specified  case.**  When  the  time  to  appeal 
had  expired  judges  have  entertained  a  motion  for  a  resettlement 
of  an  order  pro  forma  in  order  that  the  same  might  be  denied 
and  the  time  to  appeal  extended.*^  This  is  a  legal  fiction  unau- 
thorized by  law  and  has  been  condemned  by  the  New  York 
courts.^® 

It  has  been  held  to  be  improper  to  file  a  bill  of  review  or  sup- 
plemental bill  in  the  nature  of  the  same  in  order  to  set  aside  an 
interlocutory  order  or  decree.^^  It  has  been  held  that  an  order 
in  an  action  at  common  law  staying  plaintiff's  proceedings  till  he 
pays  costs  of  a  former  action  is  res  adjudicata  upon  a  subse- 
quent motion,  and  is  in  so  far  a  final  order  that  it  cannot  be  mod- 
ified or  set  aside  at  a  subsequent  term.^^  n  ]y^^  i^^^j^  \^^\(i  that, 
even  in  a  criminal  case,  the  court,  at  a  term  after  final  judgment, 


43  L.  E.  Waterman  Co.  v.  Stand- 
ard Drug  Co.,  C.  C.  A.,  202  Fed. 
167,  169. 

44Danieirs  Ch.  Pr.  (2d  Am.  ed.) 
1616,  1807;  Eslava  v.  Mazange,  1 
Woods,  62.'^,  627;  Nelson  v.  Barker, 
3  McLean,  879. 

46  In  re  Marrow,  Craig  &  Ph.  142 ; 
Danicll's  Ch.  Pr.  (2d  Am.  ed.) 
1807. 

46  Bishop  V.  Willis,  2  Ves.  Sen. 
113;  In  re  Marrow,  Craig  &  Ph. 
142;  Daniell's  Ch.  Pr.  (2d  Am.  ed. 
1808.  But  see  In  re  Dovenhy  Hos- 
pital, 1  Myl.  &  Cr.  279;  West  v. 
Smith,  3  Beav.  306. 

47Calaf  V.  Fernandez,  C.  C.  A., 
339  Fed.  795. 


48  See   §  6."3,  siiprn. 

49  See  Am.  Grain  Separator  Co. 
V.  Twin  City  Separator  Co.,  C.  C. 
A.,  202  Fed.  202,  itifra,  §  666. 
Similar  practice  disapproved.  Be 
Thompson,   C.   C.    A.,    264   Fed.  Ol.".. 

50  Sc'hiflfner  v.  Buck,  MO  Ajip.  Div. 
(N.  Y.)    821. 

51  Doss  V.  Tyack,  14  How.  297, 
313,  14  L.  ed.  428,  43.5;  Bassett  v. 
U.  S.,  9  Wall.  .38,  41,  19  L.  ed.  54«, 
549;  Henderson  v.  Carbondale  C.  & 
C.  Co.,  140  U,  S.  25,  40,  35  L.  ed. 
332.  338.     See  wfra.  §  443. 

58  Buckles  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.,  53  Fed.  566. 


1276 


MOTIONS    AND    PETITIONS 


[§255 


may  enter  an  order  correcting  a  clerical  error,  mmc  pro  tunc  as 
of  the  preceding  term.^^  An  order  granted  after  a  hearing  be- 
fore one  judge  of  a  court  will  not,  unless  under  extraordinary 
circumstances,  be  modified  or  vacated  by  another  except  upon 
appeal.^*  Unless  limited  by  their  terms,  or  by  a  rule,  or  by 
statute,^^  orders  within  the  jurisdiction  of  the  judge  or  court 
that  grants  them  remain  in  force  until  discharged  by  a  subse- 
quent order ;  ^^  or  until  the  final  decree,  when,  unless  renewed  by 
its  terms,  all  orders  expire.^' 

Before  the  Evarts  Act,  no  appeal  lay  before  the  final  decree 
from  an  interlocutory  order  which  was  not  final  in  its  nature.^* 
It  has  been  said  by  Chief  Justice  Taney,  that  "In  this  respect 
the  practice  of  the  United  States  chancery  courts  differs  from 
the  English  practice.  For  appeals  to  the  House  of  Lords  may  be 
taken  from  an  interlocutory  order  of  the  chancellor,  which  de- 
cides a  right  of  property  in  dispute;  and  therefore  there  is  no 
irreparable  injury  to  the  party  by  ordering  his  deed  to  be  can- 
celled, or  the  property  he  holds  to  be  delivered  up,  because  he 
may  immediately  appeal,  and  the  execution  of  the  order  is  sus- 
pended until  the  decision  of  the  appellate  court.  But  the  case 
is  otherwise  in  the  courts  of  the  United  States,  where  the  right 
to  appeal  is  by  law  limited  to  final  decrees.  And  if  by  an  inter- 
locutor}'  order  or  decree  he  is  required  to  deliver  up  property 
which  he  claims,  or  to  pay  monej-  which  he  denies  to  be  due,  and 
the  order  is  immediately  carried  into  execution  by  the  Circuit 
Court,  his  right  of  appeal  is  of  very  little  value  to  him,  and 
he  may  be  ruined  before  he  is  permitted  to  avail  himself  of  the 
right.  It  is  exceedingly  important,  therefore,  that  the  Circuit 
Courts  of  the  United  States,  in  framing  their  interlocutory  or- 


53  C.  &  A.  Potts  Co.  V.  Creager, 
71  Fed.  74.  In  re  Wright,  134  U.  S. 
136,  33  L.  ed.  865.  Eegularly  the 
date  of  an  order  should  be  the  day 
when  it  was  pronounced,  not  the 
day  of  its  entry.  Ex  parte  Hookey, 
4  De  G.,  F.  &  J.  456;  Ex  parte 
Whitton,  13  Ch.  D.  881. 

54  Cole  S.  M.  Co.  V.  Virginia  & 
G.  H.  W.  Co.,  1  Saw.  685,  689; 
Oglesby  v.  Attrill,  14  Fed.  214; 
Newcomb  v.  Burbank,  159  Fed.  569 ; 
Ex  parte  Steele,  162  Fed.  694;  Ee 
Eiinis,  183  Fed.  859 ;  Camp  v.  Camp, 
."9  N.  Y.  212;  People  v.  McLaughlin, 


150  N.  Y.  365;  People  v.  National 
Trust  Co.,  31  Hun  (N.  Y.)  20,  24. 
But  see  Birch  v.  Steele,  C.  C.  A., 
165  Fed.  577;  Be  Steele,  161  Fed. 
886;  of  which  the  former  overruled 
Be  Steele,  156  Fed.  853;  Ex  part'' 
Steele,  162  Fed.  694. 

55  See  Eq.  Eule  73  quoted  infra 
S  291. 

56  Eslava  V.  Mazange,  1  Woods, 
623,  627. 

57  Gardner  v.  Gardner,  87  N.  Y. 
714;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1902. 

68  See   infra,   S  695. 


5;256|  .irnfJKs  who   m.w  chwi'  (»Hr)Ek^  lUTi 

ders,  and  in  carrying  tliem  into  execution,  should  keep  in  view 
the  difference  between  the  right  of  apiJeal,  as  practiced  in  the 
English  chancery  jurisdiction,  and  as  restricted  by  the  act  of 
Congress,  and  abstain  from  changing  unnecessarily  tlie  jiosses- 
sion  of  property  or  coin])clliiig  payments  of  money  by  an  inter- 
locutor}'  order.  "^*  An  appeal  lies  to  the  Circuit  Court  of  Ap- 
peals from  an  interlocutory  order  or  decree  granting  or  continu- 
ing an  injunction  or  appointing  a  receiver.^® 

§256.  Judges  who  may  grant  orders.  An  order  may  l)i- 
made  bj'  any  judge  authorized  to  sit  in  the  court  in  whidi  tin 
cause  is  pending.  In  the  Supreme  Court  it  is  the  custoai  for 
each  Justice  to  refer  to  the  full  bench  every  application  of  im- 
portance which  is  made  to  him.^  Orders  in  a  case  ])ending  in 
a  District  Court  may  be  made  hy  any  judge  of  that  district;* 
or  by  any  district  judge,  in  the  same  circuit;  or,  in  tlic  absence 
of  all  the  circuit  judges,  by  the  Circuit  Justice  of  the  same;^ 
or,  in  case  of  the  absence  and  disability  of  all  the  circuit  judges 
and  the  Circuit  Justice,  by  the  Chief  Justice,  of  the  United 
States ;  *  or  by  any  circuit  judge  of  the  circuit,  designated  by  tiie 
senior  circuit  judge,  or  Circuit  Justice  thereof  or  the  Chief  Jus- 
tice of  the  United  States ;  ^  or  by  any  member  of  the  Commerce 
Court,  assigned  by  the  Chief  Justice  of  the  United  States  for 
service  therein.^  In  case  of  the  absence  from  the  district  or 
disability  of  the  district  judge,  any  circuit  judge  of  the  circuit 
may  grant  an  injunction  or  resti'aining  order  in  any  case  pend- 
ing in  the  District  Court."'' 

It  is  ordinarily  the  duty  of  a  judge  to  follow  a  ruling  made 

69  Forgay  v.  Conrad,  6  How.  2i)l,  ting  nor  designated  to  sit  in  tlie  dis 

205,  12  L.  ed.  404,  406.  triet  where  the  suit  was  pending,  tlii 

60  Act  of  June  16,  1900,  .'.l   St.  ;it  office  of  District  Judge  of  the  latter 

L.    660;    infra,    §§  liOO,    :^2').  district   not   being  vacant,   was  hehl 

§256.     1  Spies  v.  Illinois,   12:^   T^  null  and  void.     Am.  L.  &  T.  Co.   v. 

S.,  131,  31  L.  ed.  80.  East  &  West  R.  Co.,  40  Fed.  182. 

2  See  Jud.  Code  §1,  36  St.  at  L.  4  Jud.    Code,    §15,    36    St.    at    L. 

1087;  Birch  v.  Steele,  C.  C.  A.,  165  1087;   quoted  rtifra.  §370. 

Fed.  577.  5  Jud.    Code,    §18,    36    St.    :it     1.. 

8  Jud.    Code,    §14,    36    St.    at    L.  l(iS7 ;  quoted  iH/ro,  §  370. 

1087,  C/.  Ibid.,  §§i;!,  16,  17,  18,  19.  6. hid.   Code,    §205,   36   St.   at    I.. 

20,      All    of    these    are    (pinted     in  lUsT;    quoted   infra,   §370. 

§  370,  wf/rn.     An  order  made  by  the  7  Jud.    Code,    §264,    36    St.    at    I.. 

District    Judge    of    another    district  1(187. 
in   th(>  same  State   who  was  not   sit- 


1278 


MOTIONS    AND    PETITIONS 


§257 


in  the  same  cause ;  ^  or  when  rules  or  property  or  practice  are 
involved,  in  another  cause,  by  a  judge  of  co-ordinate  jurisdic- 
tion ;  ^  but  when  he  has  so  done,  he  may  be  reversed,  if  the  court 
of  review  construes  the  ruling  to  be  erroneous.^''  If  there  is  no 
ruling  by  the  Circuit  Court  of  Appeals  for  the  same  circuit,  a 
Circuit  or  District  Judge  will  ordinarily  follow  a  decision  of 
a  Circuit  Court  of  Appeals  in  another  circuit.^^ 

Greater  respect  is  paid  to  a  ruling  by  a  Circuit  Justice  than 
to  one  by  a  Circuit  or  District  Judge ;  ^^  and  a  ruling  by  a  Cir- 
cuit Judge  has  more  weight  than  one  by  a  District  Judge.^^ 
Where  there  were  two  district  judges  in  the  same  district,  each 
with  equal  and  concurrent  authority,  and  one,  during  the  ab- 
sence of  the  other  from  the  district,  had  appointed  a  referee  in 
bankruptcy;  it  was  held  that  the  latter  might,  without  the 
former's  concurrence,  remove  the  referee  from  office.^*  It  has 
been  held  that  a  judge  of  another  district,  assigned  generally 
to  hold  court,  may  make  orders  in  cases  tried  by  a  resident 
judge ;  ^^  but  that  he  should  not  make  such  orders  when  in  his 
own  district  and  the  district  judge  of  the  other  district  is  present 
therein.  ^^ 

§257.  The  clerk's  office.  All  court  orders  should  be  filed  in 
the  clerk's  office.  Restraining  orders,  signed  by  a  judge,  must 
also  be  forthwith  filed  there.^  Orders  to  show  cause  are  not 
usually  filed  there  until  their  return.  Orders  extending  time 
are  not  usually  filed,  unless  some  motion  is  founded  upon  the 
same.  The  Judicial  Code  provides:  "A  clerk  shall  be  appointed 
for  each  district  court  by  the  judge  thereof,  except  in  cases 


8  Plattner  Implement  Co.  v.  Inter- 
national Harvester  Co.,  C.  C.  A.,  lo.3 
Fed.  376,  379. 

9  Plattner  Implement  Co.  v.  In- 
ternational Harvester  Co.,  C.  C.  A., 
133  Fed.  376,  378.     See  §  375,  hifra. 

10  Plattner  Implenrent  Co.  v.  In- 
ternational Harvester  Co.,  C.  C.  A., 
133  Fed.  376,  379. 

11  In  re  Baird,  154  Fed.  215. 

12  Preston  v.  Walsh,  10  Fed.  315. 
But  see  U.  S.  v.  Huggett,  40  Fed. 
636,  644. 

13  C/.    E,    Eegensberg  &    Sons   v. 


Am.  Exch.  Cigar  Co.,  130  Fed.  549. 
Infra,  §  375.  But  see  U.  S.  v,  Hug- 
gett, 40  Fed.  636,  644. 

14  Birch  v.  Steele,  C.  C.  A.,  165 
Fed.  577;  Be  Steele,  161  Fed.  886; 
of  which  the  former  overruled  Be 
Steele,  156  Fed.  853,  Ex  parte 
Steele,  162  Fed.  694. 

15  Hall  V.  McKinnou,  C.  C.  A.,  193 
Fed.  572. 

16  Gay  V.  Hudson  River  El.  Pow- 
er Co.,  190  Fed.  812. 

§  257.     1  Eq.  Rule  73. 


§  257]  THE  CLKKK  S  OFFICE  1279 

otherwise  provided  for  by  law."^  "Except  as  otherwise  spe- 
cially provided  by  law,  the  clerk  of  the  district  court  for  each 
district  may,  with  tlie  approval  of  the  district  judge  thereof, 
appoint  such  number  of  deputy  clerks  as  may  be  deemed  neces- 
sary by  such  judge,  who  may  be  designated  to  reside  and  main- 
tain offices  at  such  places  of  holding  court  as  the  judge  may 
determine.  Such  deputies  may  be  removed  at  the  pleasure  of 
the  clerk  appointing  them,  witli  the  concurrence  of  the  district 
judge.  In  case  of  the  death  of  the  clerk,  his  deputy  or  deputies 
shall,  unleas  removed,  continue  in  office  and  perform  the  duties 
of  the  clerk,  in  his  name,  until  a  clerk  is  appointed  and  qualified : 
and  for  the  default  or  misfeasance  in  office  of  any  such  deputy, 
whether  in  the  lifetime  of  the  clerk  or  after  his  death,  the  clerk 
and  his  estate  and  the  sureties  on  his  official  bond  shall  be  liable ; 
and  his  executor  or  administrator  shall  have  such  remedy  for  any 
such  default  or  misfeasances  committed  after  his  death  as  the 
clerk  would  be  entitled  to  if  tJie  same  had  occurred  in  his  life- 
time."' "The  district  court  for  each  district  may  appoint 
a  crier  for  the  court ;  and  the  marshal  may  appoint  such  number 
of  persons,  not  exceeding  five,  as  the  judge  may  determine,  to 
wait  upon  the  grand  and  other  juries,  and  for  other  necessary 
purposes. "  *  "  The  records  of  a  district  court  shall  be  kept  at 
the  place  where  the  court  is  held.  "When  it  is  held  at  more 
than  one  place  in  any  district  and  the  place  of  keeping  the 
records  is  not  spe(;ially  provided  by  law,  they  shall  be  kept 
at  either  of  the  places  of  holding  the  court  which  may  be  desig- 
nated by  the  district  judge."  ^  The  equity  rules  direct:  "The 
clerk  shall  keep  a  book  known  as  'Equity  Docket,'  in  which  he 
shall  enter  each  suit,  with  a  file  number  corresponding  to  the 
folio  in  the  book.  All  papers  and  orders  filed  with  the  clerk  in 
the  suit,  all  process  issued  and  returns  made  thereon,  and  all 
appearances  shall  be  noted  briefly  and  chronologically  in  this 
book  on  the  folio  assigned  to  the  suit  and  shall  be  marked  with 
its  file  luimber.  The  clerk  shall  also  keep  a  book  entitled  'Order 
Book,'  in  which  shall  ])e  entered  at  length,  in  the  order  of  their 
making,  all  orders  made  or  passed  by  him  as  of  course  and 
also  all  orders  made  or  passed  by  tlic  judge  in  chambers.     He 

2  Jud.    Code,    §  33,    36    St.    at   L.  4  Ibid.  §  5. 

1087.  6  Ibid.  §  6. 

8  Ibid. 


1280  MOTIONS    AND    PETITIONS  [§257 

shall  also  keep  an  'Equity  Journal,"  in  which  shall  be  entered 
all  orders,  decrees  and  proceedings  of  the  court  in  equity  causes 
in  term  time.  Separate  and  suitable  indices  of  the  Equity 
Docket,  Order  Book  and  Equit.y  Journal  shall  be  kept  by  the 
clerk  under  the  direction  of  the  court."®  The  tile  marks  made 
by  the  clerk  are  usually  considered  to  be  conclusive  evidence  that 
the  papers  were  filed  uj^on  the  dates  therein  stated.''^  "Neither 
the  noting  of  an  order  in  tlie  Equity  Docket  nor  its  entry  in  the 
Order  Book  shall  of  itself  be  deemed  notice  to  the  parties  or 
their  solicitors  and  when  an  order  is  made  without  prior  notice 
to,  and  in  the  absence  of,  a  party,  the  clerk,  unless  otherwise 
directed  by  the  court  or  judge,  shall  forthwith  send  a  copy 
thereof,  by  mail,  to  such  party  or  his  solicitor  and  a  note  of 
such  mailing  shall  be  made  in  the  Equity  Docket,  which  shall  be 
taken  as  sufficient  proof  of  due  notice  of  the  order. ' '  ^ 

"All  motions  and  applications  in  the  clerk's  office  for  the 
issuing  of  mesne  process  or  final  process  to  enforce  and  execute 
decrees ;  for  taking  bills  pro  conf esso ;  and  for  other  proceed- 
ings in  the  clerk's  office  which  do  not  require  any  allowance  or 
order  of  the  court  or  of  a  judge,  shall  be  deemed  motions  and 
applications  grantable  of  course  by  the  clerk ;  but  the  same  may 
be  suspended,  or  altered,  or  rescinded  by  the  judge  upon  special 
cause  shown.  "^ 

The  Revised  Statutes  provide:  "All  moneys  paid  into  any 
court  of  the  United  States  or  received  by  the  officers  thereof 
in  any  case  pending  or  adjudicated  in  such  court  shall  be  forth- 
with deposited  with  the  Treasurer  or  Assistant  Treasurer  or  a 
designated  depository  of  the  United  States  in  the  name  and  to 
the  credit  of  such  court,  provided  that  nothing  herein  shall  be 
construed  to  prevent  the  delivery  of  any  such  money  upon  se- 
curity according  to  agreement  of  parties  under  the  direction  of 
the  court. "  ^°.  "  No  money  deposited  as  aforesaid  shall  be  with- 
drawn except  by  order  of  the  judge  or  judges  of  said  courts, 
respectively,  in  term  time  or  in  vacation  to  be  signed  by  such 
judge  or  judges  and  to  be  entered  and  certified  of  record  by  the 
clerk,  and  every  such  order  shall  state  the  cause  in  or  on  account 
of  which  it  is  drawn,  and  it  shall  be  the  duty  of  the  judge  or 

6  Eq.  Eule  ;5.  9  Eq.  Dule  5. 

7  7?p  Libby,  2.5;{  FimI.  27S.  10  TT.    S.    E.    S.,    S  iU).!,    Oonip.    St. 
8Eq.  Rule  4.                                                 1001,  p.  711. 


§257]  THE  clerk's  oikki:  1281 

judges  of  said  coiuts,  respectively,  to  cause  any  moneys  de- 
posited as  aforesaid  which  have  remained  in  Ihc  legistry  of  tlie 
court  unclaimed  for  ten  years  or  longci-  to  hr  deposited  in  ;i 
designated  depository  of  lln-  I'nilcd  States  to  the  credit  of  the 
United  States.'' ^^  li  is  the  duty  of  the  ch'tk  to  make  the  de- 
posit at  once  although  a  State  sheriff'  has  made  a  levy  there- 
upon.^^  The  clerk  coiiiinits  no  criminal  oflpense  hy  depositing 
the  money  in  a  l)aiik  not  a  rTovi-rnment  de})Ositary  which  i)ays 
a  highei-  rate  of  interest  wiieii  so  ordered  l)y  the  consent  of 
the  parties.^^  Even  when  the  Government  is  a  party  entitleil 
to  the  money  it  has  not  become  the  property  of  the  United  States 
nor  "accrued  to  the  United  States''  l)efore  an  order  of  the 
judge  or  final  judgment. ^^  Where  the  final  judgment  or  decree 
does  not  dispose  of  the  title  to  the  fund  it  is  still  subject  to  the 
order  of  the  court  and  no  independent  action  will  lie  for  its  re- 
coverA'.^^  Monies  so  deposited  are  not  public  monies  of  the 
United  States.^^  In  the  absence  of  any  agreement  by  the  de- 
positary it  cannot  be  compelled  to  pay  interest  upon  such  funds 
to  a  party  to  the  suit;  ^'  nor  to  the  United  States.i^  When  the 
deposit  was  made  as  securit\-  to  the  complainant  and  he  re- 
covered less  than  its  amount  it  was  held  that  he  was  not  liable 
to  the  depositor  for  interest  in  excess  of  that  paid  by  the  de- 
positary.^^  After  the  ten  years  had  expired  it  was  held  that 
the  court  had  no  power  to  award  the  deposit  to  any  claimant 
but  that  all  claims  must  be  presented  to  the  Department  of  the 
Treasury.^"  It  is  not  unusual  for  the  court  and  counsel  when 
a  deposit  of  money  is  made  to  arrange  that  it  be  placed   in   a 

11  U.  S.   li.  S.,   §  99t),  as  aiiu'iideil       Soutlioni   Urcgon  Co.,  C.  C.  A.,   24-1 
by   Act   of   February    19,    1897,   cli.       Fed.  8:?. 

265,  §  3,  29  St.  at  L.  578,  Comp.  St.  16  Chatani    &    I'lieuix    Nat.    Hank 

1901,  p.  711.   Sec  Fc  Moneys  in  Eeg-  v.    Guaranty    Trust    Co.,    C.    C.    A.. 

istry    of    District    Court,    170    Fed.  256  Fed.  90. 

470;    infra,    chapter    on    "Admiral-  17  Ibid. 

ty."  18  U.    S.    V.   MacMillan,   209   Fed. 

12  D.   B.   Martin   Co.   v.   Shannon-  256;    See    Chatam    v.    Phenix    Nat. 
liouse,  2015  Fed.  516.  Rank  v.  Guaranty   Trust   Co.,   C.  C. 

13  IT.    S.    V.    Conway    Lumlicr    Co..  A..  256  Fed.  90,  92. 

234  Fed.  961.  19  Brooks   v.    Kerr,    C.   ('.    A..   22:: 

14  IT.    S.    V.    Smart,    ('.    C.    A.,    2;;7         ImmI.    1016. 

Fed.  978.  20  A',:   Moneys  in    Kcjjistry  ol"   Hi-^ 

ISMenaslia     Woodcnwarc     Co.     v.        trict  Court,  170  Fed.  470. 


1282 


MOTIONS    AND    PETITIONS 


[§257 


trust  company  subject  to  the  order  of  the  court  without  going 
through  the  clerk's  office.  By  this  means,  the  clerk's  fee  of 
one  per  cent  ^^  is  saved.^^  Where  a  statute  authorized  sailors 
to  prosecute  suits  without  the  prepayment  of  his  fees  it  was 
held  that  he  need  not  account  for  them  until  after  their  collec- 
tion,23  ]3^j;  when  tendered  a  fee  for  service  demanded  of  him, 
he  cannot  refuse  to  perform  the  same  until  fees  due  him  for 
other  ser\dces  have  been  paid.^^*  It  is  customary  in  the  Second 
Circuit  to  require  a  deposit,  as  security  for  costs,  to  be  paid  by 
each  party  before  any  paper  is  filed  by  him.^* 

All  books  in  the  offices  of  the  clerks  of  the  District  Courts  con- 
taining the  docket  or  minutes  of  the  judgments,  or  decrees  there- 
of, must  during  office  hours  be  open  to  the  inspection  of  any  per- 
son desiring  to  examine  the  same,  without  any  fees  or  charges 
therefor.25  A  title  insurance  company  has  the  right  to  make  such 
inspection,  provided  it  does  not  interfere  with  the  rights  of  other 
searchers.^^  The  sureties  upon  a  clerk's  bond  are  liable,  bj^  a 
suit  in  the  name  of  the  United  States,  for  the  use  of  a  private 
suitor,  who  has  been  damaged  by  his  misconduct  in  refusing  to 
file  papers  in  a  case.^'''  Such  sureties  are  similarly  liable  to  the 
owner  of  a  fund  deposited  with  the  clerk,  which  the  latter  has 
misappropriated.^^  But  where  the  clerk  had  refused  to  enter 
judgment  by  default  in  a  case  where  garnishee  process  had  been 
issued,  it  was  held  that  his  sureties  were  not  liable  for  damages 
in  the  absence  of  proof  that  there  were  funds  of  the  defendant 
in  the  hands  of  the  garnishee  subject  to  garnishment.^^  The  com- 
plaint is  filed  when  it  is  lodged  in  the  hands  of  the  clerk  and  his 
fees  are  paid,  although  he  fails  to  put  the  file  marks  upon  the 


same 


30 


21  U.  S.  R.  S.,  §828,  infra,  §417. 
22Easton   v.  H.  &  T.  C.  Ey.  Co., 
44  Fed.  718. 

23  The  Memphian,  245  Fed.  484. 
23a  Jenning  v.  Johnson,  C.  C.  A., 

148  Fed.  337. 

24  In  equity,  on  filing  bill  of  com- 
plaint $25,  on  filing  appearance  by 
defendant,  $15,  at  law,  on  filing 
summons  $15,  on  filing  appearance 
by  defendant  $10;  appraisers'  ap- 
peals on  filing  petition  $5. 


25  U.  S.  R.  S.,  §  828 ;  Be  McLean, 
9  Cent.  L.  J.  425;  s.  c,  2  Flip.  512. 

26  Bell  V.  Commonwealth  Title  Ins. 
Co.,  189  U.  S.  131,  47  L.  ed.  741. 

27  U.  S.,  to  Use  of  Kinney  v.  Bell, 
C.  C.  A.,  135  Fed.  336. 

28  Howard  v.  U.  S.,  184  U.  S.  676, 
46  L.  ed.  754. 

29  U.  S.  V.  U.  S.  Fidelity  &  Guar- 
anty Co.,  C.  C.  A.,  186  Fed.  477. 

30  Emmons    v.    Marbelite    Plaster 
Co.,  193  Fed.  181. 


I 


CHAPTER  XVTI. 

INTERVENTIONS. 

§  258.  Interventions  in  general.  An  intervention  is  generally 
instituted  hy  a  pel  it  ion.  A  petition  of  intervention  is  tiled  in  a 
pending  cause  by  a  person,  wlio  is  not  a  party  to  it  and  prays 
permission  to  intervene  and  become  a  party,  either  i)laintit1:"  or 
defendant.  A  person  not  named  as  a  party  in  the  pleadings 
cannot  ordinarily  intervene  without  permission  of  the  court.^ 
New  parties  can  alwaj's  intervene  by  consent  of  the  original  par- 
ties.^ 

By  the  Equity  Rules  of  1912,  "Anyone  claiming  an  inter- 
est in  the  litigation  ma}'  at  any  time  be  permitted  to  assert  his 
right  by  intervention,  but  the  intervention  shall  be  in  subordina- 
tion to,  and  in  recognition  of,  the  propriety  of  the  main  proceed- 
ing." '  To  what  extent  this  changes  the  pre-existing  practice  has 
not  yet  been  decided.  It  has  been  held  that  the  interest  must  be 
a  legal  interest  which  will  or  may  be  affected  by  the  decree  *  and 
that  a  city  has  no  right  to  intervene  to  protect  its  citizens  who 
are  gas  consumers  by  defending  a  suit  to  enjoin  the  enforcement 
of  a  statute  reducing  the  price  of  gas  supplied  to  them  but  not 
affecting  those  which  the  city  pays.^  An  appeal  from  the  decision 
is  pending  in  the  Supreme  Court  of  the  United  States. 

A  person  who  claims  an  interest  in,  or  lien  upon  a  fund,^  or 
other  property  in  the  possession  of  the  court  or  by  a  receiver  or 

§  258.     1  Bronson  v.  La  Crosse  &  3  Eq.  Rule  37. 

M,   R.   Co.,   2   Wall.   283,   17   L.   ed.  4Coiisol.  Gas  Co.  v.  Newton,  25(3 

725;    Forbes   v.   Memphis   El.   P.   &  Fed.  238,  aff'd  without  opinion.  C. 

Pac.  Ry.  Co.,  22  Woods,  323;  Put-  C.   A.,  266  Fed.   1022,  reversed   for 

nam  v.  New  Albany,  4  Bissell,  365,  want    of   jurisdiction    of    C.    C.    A., 

367;   Gregory  v.  Pike,  67  Fed.  837;  252   U.   S.  — ,  in   which   the   author 

U.  S.  Gypsum  Co.  v.  Hoxie,  172  Fed.  was  counsel. 

504.  6  Ibid. 

2  Galveston  R.  Co.  v.  Cowdrey,  11  6  See  infra,  §  258e. 
Wall.    459,    464,    20     L.    ed.    199; 
French  v.  Gapen,  105  U.  S.  509,  525, 
26  L.  ed.  951,  956. 

1283 


1284 


INTERVEXTIOXS 


[§258 


otherwise,'  or  who  is  interested  in  the  title  to  property  the  right 
to  which  is  in  dispute,^  unless  he  is  adequately  represented  in  the 
litigation,^  may  be  allowed  to  intervene  to  protect  his  rights.  An 
application  to  compel  the  receiver  to  pay  money  into  court  may 
be  made  b}^  intervention,  although  the  intervenor  might  proceed 
by  an  independent  action  against  the  receiver  and  the  sureties  on 
his  bond.^** 

It  has  been  held  that  any  person  who  is  a  proper  although  not 
a  necessary  part}-  may  be  allowed  to  intervene.^^ 

It  was  formerly  the  general  rule  in  chancer}-  that  the  court  had 
no  power  to  allow  a  stranger  to  a  cause  ''to  be  heard  therein 
either  by  petition  oi*  motion,  except  in  certain  eases  arising  from 
necessity,  as  where  the  pleadings  contain  scandal  against  a 
stranger,  or  M'here  a  stranger  purchases  the  subject  of  litigation 
pending  the  suit,  and  the  like. "  ^^  A  stranger  is  not  allowed 
to  intervene  in  order  to  contest  the  complainant's  right  to  sue,^^ 
nor,  it  has  been  held,  to  object  to  the  jurisdiction  of  the  court,^* 
nor  to  his  ownership  of  the  cause  of  act  ion, ^^  nor  to  be  substituted 
in  his  place,  because  of  an  adverse  title. ^^  An  intervention  should 
not  ordinarily  be  permitted  in  order  to  substitute  the  intervenor 
for  the  complainant.^'''  But  an  insurer  claiming  by  subrogation 
an  interest  in  a  fund  recovered  by  a  plaintiff  was  authorized  to 
iiitervene  to  assert  such  claim. ^^  Receivers  were  authorized  to 
intervene  and  continue  a  pending  suit  for  the  infringement  of  a 
patent  brought/  by  the  party  over  whose  estate  they  were  ap- 


7  See  infra,  §§  258g,  258h. 

8  See  infra,  §  2o8f . 

9  See  supra,  §113;  infra,  §§  258b, 
258e. 

10  Haiucs  V.  Buckeye  Wheel  Co., 
C.  C.  A.,  224  Fed.  289. 

11  Brinckerhoff  v.  Holland,  C.  C. 
A.,  146  Fed.  388,  208.  See  infra. 
§  258f. 

12  Bradley,  J.,  in  Anderson  r. 
Jacksonville,  P.  &  M.  R.  Co.,  2 
Woods  628,  629.  See  also  Searles  \. 
.Jacksonville,  P.  &  M.  R.  Co.,  2 
Woods  621,  625;  Shields  v.  Barrow, 
17  How.  130,  145,  15  L.  ed.  158, 
162;  Bronson  v.  Railroad  Co.,  2 
Black,  524,  17  L.  ed.  347;  Coleman 
V.  Martin,  6  Blatchf.  119;  Drake  v. 
Goodridge,  6  Blatchf.  151;   Page  v. 


Holmes  B.   A.   Tel.  Co.,  18  Blatchf. 
118. 

13  Hopkins  v.  Lancaster,  254  Fed. 
190;  Caufield  v.  Laurence,  256  Fed. 
714. 

14  Horn  V.  Pere  Marquette  R.  R. 
Co.,  151  Fed.  626,  634. 

15  Hopkins  v.  Lancaster,  254  Fed. 
190. 

16  Caufield  v.  Laurence,  256  Fed. 
714;  nor  to  enforce  an  independent 
claim  against  him.  Glass  v.  Woo<l- 
man,  C.  C.  A.,  223  Fed.  621. 

17  Caufield  v.  Laurence,  256  Fed. 
714.    See  supra,  §§  231,  234. 

18  Fed.  Ins.  Co.  v.  Detroit  Fire  & 
Marine  Ins.  Co.,  C.  C.  A.,  202  Fed. 
648. 


§  258a] 


INTERVENTIONS  IX  CLASS  SUITS 


1285 


pointed. ^^  An  assignee  of  part  of  the  cause  of  action  by  an 
assignment  made  before  or  after  the  beginning  of  the  suit  may 
intervene.^" 

When  the  court  acquired  jurisdiction  of  the  original  bill,  the 
fact  that  an  intervenor  has  the  same  citizenship  as  a  party  on 
the  opposite  side  of  the  controversy  21  or  tiiat  iiis  claim  is  less 
than  llic  jurisdictional  amount  does  not  oust  it.'^^ 

Persons  belonging  to  a  class  represented  in  the  suit  are  re- 
garded as  (/»fl.</-parties;  and  for  tliat  reason  they  are  often  al- 
lowed to  intervene.^^ 

§258a.  Interventions  in  class  suits.  Wlien  a  suit  is  bmuglit 
by  a  member  of  a  class  on  behalf  of  himself  and  others  similarly 
interested,  another  member  of  the  class  who  desires  the  success 
of  the  complaint  ^  should  be  permitted  to  intervene,^  even  after 
a  decree  for  a  sale,  provided  there  has  been  no  distribution  of 
the  assets,^  upon  payment  of  his  share  of  the  costs,  expenses,  and 
reasonable  counsel  fees  which  have  been  previously  paid  or 
incurred.* 


19Xat.  El.  Signaling  Co.  v.  Tele- 
funkeii  Wireless  Tel.  Co.,  C.  C.  A., 
208  Fed.  679. 

20  Rhinehard  v.  Victor  Talking 
Ma.'hine  Co.,  261  Fed.  64G. 

21  Kripeiidorf  v.  Hyde,  110  U.  S, 
276,  283,  284,  28  L.  ed.  14.3,  148; 
Park  V.  N.  Y.,  L.  E.  &  W.  E.  Co., 
70  Fed.  641;  Monmouth  Inv.  Co.  v. 
Means,  C.  C.  A.,  151  Fed.  159;  Irv- 
ing-Pitt Mfg.  Co.  V.  Twinlock  Co., 
220  Fed.  .325,  supra,  8  46. 

£2  .stanwood  v.  Wisliard,  l.U  Fed. 
959,  supra,  §  G. 

23  Fidelity  Tr.  &  S.  D.  Co.  v.  Mo- 
bile S.  Ry.  Co.,  S.-}  Fed.  850. 

5}  258a.  1  Forbes  v.  Memphis,  El. 
P.  &  P.  R.  Co.,  2  Woods,  :J2:{.  See 
Southern  Pac.  Co.  v.  Bogert,  250 
U.  S.  48:i,  498.  The  right  was  de- 
nied where  the  petitioner  acquired 
his  claim  pending  the  suit.  Terry 
V.  Bank  of  Cape  Fear,  20  Fed.  777. 
Cf.  Davis  V.  Sullivan,  :i.i  X.  J.  E(i. 
569. 

Fed.  Prac.  Vol.  11—11 


2  Ogilvie  v.  Knox  Ins,  Co.,  2 
Black,  539,  17  L.  ed.  349;  s.  c,  22 
How,  380,  16  L.  ed.  349;  Myers  v. 
Fenn,  5  Wall.  205,  18  L.  ed.  604; 
Ex  parte  Jordan,  94  U.  S.  248,  24 
L.  ed.  123;  First  Nat.  Ins.  Co.  v. 
Salisbury,  130  Mass.  303;  Hallett  v. 
Hallett,  2  Paige  (N.  Y.)  432; 
Leigh  V.  Thomas,  2  Ves.  Sen,  312; 
Atkins  V.  Trowbridge,  162  App. 
Div.  (N.  Y.)  161  (an  action  by  the 
•  holder  of  a  certificate  of  bonds  de- 
posited under  a  reorganization 
agreement);  Story's  Eq.  PI.,  §99. 
Cf.  Tift  v.  Southern  Ry.  Co.,  159 
Fed.  555.  But  see  Farmers'  &  Mer- 
chants' Bank  v.  Arizona,  C.  C.  A., 
M.  L.  &  T.  Ass'n,  220  Fed.  1. 

S  George  v.  St.  Louis  C.  &  W.  Ry. 
Co.,  44  Fed.  117. 

4  Central  R.  Co.  v,  Pettus,  113 
U.  S.  116,  28  L.  ed.  915;  Trustees 
v.  Greenough,  105  U.  S.  527,  26  L. 
ed.   1157, 


1286 


INTERVENTIONS 


[§  258h 


It  has  been  held  by  au  intermediate  court  of  review  in  New 
York  that  this  rule  does  not  apply  to  a  suit  brought  by  a  stock- 
holder who  sues  to  enforce  a  cause  of  action  owned  by  the  cor- 
poration such  as  the  right  to  set  aside  a  sale  of  its  assets,^  but 
the  contrary  rule  seems  to  be  established  in  the  Federal  courts 
when  the  stockholder  expressly  sues  on  behalf  of  himself  and  the 
others.^    Another  Circuit  Court  of  Appeals  has  held :  that  in  a 
suit  by  a  stockholder  to  set  aside  a  consolidation,  when  the  bill 
does  not  state  that  he  sues  on  behalf  of  all,  the  other  stockhold- 
ers have  no  right  to  inten^ene  unless  the  court  in  its  discretion 
so  determines.'''    But  it  has  been  said  by  a  judge  of  wide  experi- 
ence at  the  New  York  bar:  "The  stockholders'  action  being  but 
a  derivative  one,  no  stockholder  has  the  right  to  sue  for  himself 
alone ;  his  action  is  necessarily  representative  whether  he  calls  it 
so  or  not. ' '  ^    After  an  agreement  for  a  settlement  of  the  entire 
litigation  had  been  made  between  the  original  complainant  who 
sued  on  behalf  of  himself  and  the  rest  of  a  class,  and  one  of  the 
defendants,  a  motion  to  intervene  by  a  member  of  the  class,  for 
whose  benefit  the  suit  was  brought,  was  denied;  although  no 
motion  to  dismiss  the  bill,  nor  for  a  discontinuance,  had  been 
made  or  noticed.^ 

Ordinarily  an  intervenor  in  a  suit  brought  on  behalf  of  a  class 
will  be  joined  as  plaintiff.  If  he  is  a  citizen  of  the  same  state  as 
one  of  the  defendants,  that  will  not  in  most,  if  in  any,  cases  de- 
prive the  court  of  jurisdiction.^"  If  there  should  be  any  danger 
that  it  would,  he  may  ])e  joined  as  a  defendant."  If  he  intends 
to  act  in  hostilitv  to  the  original  complainant,  the  court  may,  in 


5  Hay  V.  Brookfield,  160  App.  Div. 
(N.  Y.)  277.  See  Jackson  v.  Gardi- 
ner Inv.  Co.,  C.  C.  A.,  200  Fed.  113, 
117;  infra,  §  258c.  But  see  Grant  v. 
Greene  Consol.  Copper  Co.,  169  App. 
Div.  (N.  Y.)  206,  215;  Brown  v. 
Penn.  Canal  Co.,  244  Fed.  980. 

6  Dana  v.  Morgan,  C.  C.  A.,  232 
Fed.  85.  See  Southern  Pae.  Co.  v. 
Bogert,  250  U.  s.  483,  498. 

7  Jackson  Co.  v.  Gardiner  Inv.  Co., 
C.  C.  A.,  200  Fed.  113,  117. 

8  Grant  v.  Greene  Consol.  Copper 
Co.,  169  App.  Div.  (N.  Y.)  206,  215. 


See     Hupra,     §§  114-116,     145,     149. 

9  Snyder  v.  DeForest  "Wireless 
Telegraph  Co.,  U.  S.  C.  C,  E.  D. 
Mo.  1907.  But  see  Snyder  v.  De- 
Forest  Wireless  Telegraph  Co.  (D. 
M.)  154  Fed.  142,  145.  In  both  of 
these  eases  the  author  was  counsel. 
See  §  361,  infra. 

10  Stewart  v.  Dunham,  115  U.  S. 
61,  29  L.  ed.  329.  See  §  260,  infra. 
But  see  Mangels  v.  Donau  Br.  Co., 
.53  Fed.  513. 

11  Brown  v.  Pae.  M.  S.  S.  Co.,  5 
Blatehf.  525,  535. 


§  258b] 


INTERVENTION    BY    BONDHOLDERS 


1287 


its  disr-rction,  add  him  to  the  defendants. ^^  The  defendant  from 
whom  the  fund  has  been  recovered  cannot  share  in  the  same 
without  paying  its  proportion  of  the  expenses  of  the  litigation.^' 

§  258b.  Intervention  by  bondholders.  A  provision  in  the 
mortgage,  that  no  bondholder  can  bring  a  foreclosure  suit  until 
after  a  refusal  by  tlw  trust-oo,  does  not  pror-ludo  the  intervention 
of  a  bondholder.^ 

In  suits  brought  by  or  against  a  trustee,  or  otlierwisc  atfect- 
ing  trust  property,  the  beneficiaries  of  the  trust,  such  as  hold- 
ers of  bonds  secured  by  a  railroad  mortgage,  may  be  allowed 
to  intervene  for  the  purpose  of  protecting  their  interests  ;2 
but  ordinarily  the  right  to  intervene  before  a  sale  is  denied  them 
in  the  absence  of  fraud,  neglect,  inability,  collusion,  or  bad  faith 
by  the  trustee,'  even  when  the  application  is  made  for  the 
purpose  of  taking  an  appeal,  after  the  trustee  has  refused  to 
appeal.*  The  better  rule  is  that  bondholders  should  always  be 
allowed  to  intervene  when  their  trustee  refuses  to  make  an 
active  contest  against  the  validity  of  a  prior  lien  or  of  other 
bonds  secured  by  the  same  mortgage.^  The  facts  showing  mis- 
conduct or  collusion  by  the  trustee  must  be  specifically  pleaded. 
A  general  allegation  of  fraud,  collusion,  and  co-operation  with 
one  of  two  parties  of  bondholders,  is  insufficient.^    So,  it  has  been 


12  Galveston  R.  Co.  v.  Cowdrey, 
11  "Wall.  459,  478;  Forbes  v.  Mem- 
phis, El.  P.  &  P.  R.  Co.,  2  Woods, 
323. 

13  Brown  v.  Penn.  Canal  Co.,  244 
Fed.  980. 

§  258b.  1  Farmers'  Loan  &  Tr. 
Co.  V.  Nor.  Pac.  R.  Co.,  66  Fed.  169. 

2  Williams  v.  Morgan,  111  U.  S. 
684,  28  L.  ed.  559;  Drew  v.  Harman, 
5  Price,  319;  Saylors  v.  Saylors,  3 
Heisk,  (Tenn.)  525;  Birdsong  v. 
Birdsoug,  2  Head  (Tenn.),  289; 
Carter  v.  New  Orleans,  19  Fed.  659; 
Farmers'  L.  &  Tr.  Co.  v.  Mo.  I.  & 
N.  Ry.  Co.,  21  Fed.  264;  Farmers' 
L.  &  Tr.  Co.  V.  No.  Pac.  R.  Co.,  66 
Fed.  169;  Central  Tr.  Co.  v.  Wash- 
ington County,  124  Fed.  813. 

3  Richards  v.  Chesapeake  &  0.  R. 
Co.,    1    Hughes,    28,    36;    Skiddy   v. 


Atlantic,  M.  &  O.  R.  Co.,  3  Hughes, 
320,  350-352,  per  Bond,  J.,  Hughes, 
J.,  dissenting;  Farmers'  L.  &  Tr. 
Co.  V.  Kansas  City,  W.  &  N.  W.  R. 
Co.,  53  Fed.  182;  Clyde  v.  Rich- 
mond &  T).  R.  Co.,  55  Fed.  445; 
Bowling  Green  Tr.  Co.  v.  Va.  Pas- 
senger &  Power  Co.,  132  Fed.  921  ; 
Fidelity  Tr.  Co.  v.  Washington- 
Oregon  Corp..  217  Fed.  588,  596; 
Investment  Registry  v.  Chic.  &  M. 
Kl.  R.  Co.,  213  Fed.  492.  Sec  supni, 
§  171.  Trust  Co.  of  America  t. 
Norfolk  &  S.  Ry.  Co.,  174  Fed.  269. 
See  Eq.  Rule  37. 

4  Fink    v.     Bay    Shore     Terminal 
Co.,  C.  C.  A.,  144  Fed.  837. 

5  But     see     Ex     parte     Equitable 
Trust  Co.,  C.  C.  A.,  231  Fed.  571. 

6  Bowling    Green    Tr.   Co.   v.    Vir- 
ginia Passenger  &   Power   Co.,    161 


1288 


INTERVENTIONS 


[§  258b 


held,  is  the  charge :  that  the  trustees  and  others  who  are  members 
of  the  majority  of  the  bondholders  have  conspired  to  cause  the 
mortgaged  property  to  be  sold  free  and  clear  of  the  claims  of  the 
intei^ening  bondholders  and  other  creditors  for  a  sum  much  less 
than  its  actual  value,  insufficient  to  pay  in  full  the  claims  of  the 
intervening  bondholders  and  insufficient  to  pay  any  thing  what- 
ever on  the  claims  of  general  creditors ;  and  that  the  books  of  the 
mortgagor  in  violation  of  the  State  statute  have  been  kept,  and 
are  still  kept,  outside  of  the  Stated 

Where  a  trustee  represents  bondholders  under  different  mort- 
gages with  conflicting  interests;  or  where,  if  a  corporation,  one 
of  its  officers  or  directors  or  controlling  stockholders  or  counsel 
is  a  member  of  a  reorganization  committee  which  intends  to 
buy  the  mortgaged  property  or  is  interested  in  a  large  claim 
against  it,  the  trustee  is  under  such  disability  to  exercise  un- 
biased judgment  that  an  intervention  should  always  be  allowed.^ 
It  has  been  held :  that  the  facts  that  the  trustee  has  consented  to 
act  with  a  majority  of  the  bondholders  in  a  reorganization  where- 
in it  will  be  the  depositary  of  the  bonds  ;^  that  the  attorney  of 
the  trustee  represents  the  mortgagor,  the  trustee  under  another 
mortgage,  a  committee  of  second  mortgage  bondholders  and  a 
committee  of  general  creditors  and  a  large  bondholder ;  i°  that 
certain  directors  of  the  trustee  are  holders  of  bonds  and  stock  of 
the  defendant ; "  that  the  trustee  has  failed  to  claim  certain  as- 
sets as  to  the  inclusion  of  which  in  the  mortgage  there  is  room  for 
doubt ;  12  that  the  trustee  disobeyed  the  covenants  in  the  deed  of 
trust  liy  using  the  proceeds  of  mortgaged  property  taken  in  con- 


Fed.  75:?,  756;  Continental  &  C.  Tr. 
&  S.  Bank  v.  Allis-Chalmers  Co.,  200 
Fed.  600.  See  Howard  v.  Shinn,  C. 
C.  A.,  190  Fed.  940. 

7  Fidelity  Tr.  Co.  v.  Washington- 
Oregon  Corp.,  217  Fed.  588. 

8  Farmers'  L.  &  Tr,  Co.  v.  Nor. 
Pac.  E.  Co.,  66  Fed.  169;  Farmers' 
L.  &  Tr.  Co.  V.  Cape  Fear  &  Y.  V. 
Rj.  Co.,  71  Fed.  38;  Grand  Tr.  By. 
Co.  V.  Central  Vt.  Ey.  Co.,  88  Fed. 
622j  Fowler  v.  Jarvis-Conklin  M. 
Tr.  Co.,  64  Fed.  279;  Hamlin  v. 
Toledo,  St.  L.  &  K.  C.  E.   Co.,  36 


L.E.A.  826,  78  Fed.  664,  672.  See 
Bowling  Green  Tr.  Co.  v.  Virginia 
Passenger  &  Power  Co.,  164  Fed. 
753,  756;  Howard  v.  Shinn,  C.  C.  A., 
190  Fed.  940.  But  see  Clyde  v. 
Eichmohd  &  D.  E.  Co.,  55  Fed.  445. 

9  Fidelity  Tr.  Co.  v.  Washington- 
Oregon  Corp.,  217  Fed.  588. 

10  Ibid. 

11  Bowling   Green  Tr,   Co.   v.  Va. 
Passenger    &    Power    Co.,    132    Fed 

921. 

12  Fidelity  Tr.  Co.  v.  Washington- 
Oregon  Corp.,  217  Fed.  588. 


§  258b]  INTERVENTION    HV    BONDHOLDERS  1289 

demnation  proceedings  to  Ijiiy  bonds  from  the  trustees  of  the 
mortgagor  instead  of  in  the  open  market,  it  not  appearing  tliat 
the  price  paid  for  the  bonds  was  too  high,  that  the  bonds  could 
have  been  bought  in  the  open  market,  or  that  the  mortgagor  iiad 
asked  the  trustee  to  use  tlic  money  for  betterments  of  the  prop- 
erty;  "  that  the  trustee  was  also  trustee  under  a  colhiteral  trust 
indenture  pledging  for  the  security  of  note-holders'  bonds  issued 
under  the  instrument  which  it  has  sued  to  foreclose,  the  ti'ustee 
having  resigned  from  his  position  under  the  indenture ;  ^*  that 
the  president  of  the  trustee  owned  a  controlling  interest  in  the 
stock  and  bonds  of  a  connecting  railroad  which  he  had  agreed  to 
sell  to  the  reorganization  committee,  payment  to  be  made  when 
the  reorganization  was  consummated  conditioned  upon  approv 
by  the  court  or  its  receiver;  ^^  that  the  trustee  has  failed  to  com- 
ply with  the  State  statute  directing  it  to  appoint  an  agent  within 
the  State  or  to  file  certain  papers  in  the  State  office  when  it 
contends  that  the  statute  does  not  apply ;  ^^  that  after  the  refusal 
of  the  court  to  confirm  the  sale  of  part  of  the  mortgage  property 
in  one  state  and  district  the  trustee  applied  for  the  confirmation 
of  the  same  sale  so  far  as  it  covered  property  in  another  State 
and  district  "  are  not,  in  themselves  alone,  sufficient  to  allow  the 
individual  holders  of  a  small  minority  of  the  bonds  to  intervene. 
Bondholders  who  objected  to  the  appointment  of  a  certain  per- 
son as  receiver  have  been  allowed  to  intervene.^^ 

After  a  plan  for  the  reorganization  of  a  railroad  company  in 
the  hands  of  a  receiver  has  been  submitted  to  bondholders  for 
their  acceptance,  since  they  are  not  represented  in  this  matter  by 
the  trustee  they  have  the  right  to  intervene  before  the  sale.^^ 
"Where  the  trustee  was  not  proved  to  be  guilty  of  co-operation 
with  those  wishing  to  reorganize  the  corporation,  except  that 
against  the  protest  of  the  minority  he  had  brought  a  foreclosure 
suit  at  the  majority's  request  and  that  he  had  failed  to  answer 

13  Fidelity  Tr.  Co.  v.  Washington-  17  Investment  Registry  v.  Chicago 
Oregon  Corp.,  217  Fed.  588,  596.  &  M.  EI.  R.  Co.,  21.-?  Fed.  492. 

14  Investment  Registry  v.  Chic.  &  18  Coal  v.  Philadelphia  &  E.  Ry. 
M.  El.  R.  Co.,  213  Fed.  492.  Co..  140  Fed.  944,  945. 

16  Ibid.     But  see  Coal  v.  Philadel-  19  Guaranty   Tr.   Co.   v.   Mo.   Pac. 

phia  &  E.  Ry.  Co.,  140  Fed.  944.  Ry.     Co.,     2.^8     Fed.     872;     Central 

16  Fidelity  Tr.  Co.  v.  Washington-  Trust     Co.     v.     Chie.     R.     I.     &     P. 

Oregon  Corp.,  217  Fed.  588.  R.  Co.,  C.  C.  A.,  218  Fed.  .336. 


1290 


INTERVENTIONS 


[§  258b 


within  two  days  a  series  of  questions  b}'  a  bondholder;  leave  to 
intervene  was  denied.^' 

When  there  is  a  substantial  dispute  between  the  bondholders 
as  to  the  policy  to  be  pursued,  it  is  also  proper  to  allow  the  in- 
tervention of  committees  representing  them.^^  It  has  been  held 
that  where  there  was  no  dispute  as  to  the  validity  of  all  of  the 
bonds  as  against  the  corporation,  the  holder  of  a  part  thereof 
should  not  be  alloM-ed  to  intervene  before  the  sale  for  the  purpose 
of  litigating  a  claim  of  priority  over  other  bondholders ;  that 
being  said  to  be  a  question,  which  could  be  litigated  before  the 
master  upon  the  application  for  the  distribution  of  the  proceeds 
of  the  sale. ^2  The  obligee  of  bonds  pledged  by  a  corporate  mort- 
gage was  not  allowed  to  intervene  in  the  foreclosure  suit,  to  liti- 
gate the  question  of  its  liability,  since  he  had  a  right  to  contest 
the  same  in  an  action  by  the  purchaser. ^^  A  bondholder  was  re- 
fused permission  to  intervene  generally  for  the  purpose  of  en- 
forcing claims  for  misconduct  of  persons  other  than  the  mort- 
gagor in  relation  to  the  reorganization  of  the  mortgagor's  assets.^* 

The  bondholders  have  the  right  to  delegate  to  such  a  commit- 
tee their  individual  rights  to  take  part  or  intervene  in  the  litiga- 
tion.^* The  consent  of  a  trustee  to  act  as  depositary  under  a  re- 
organization agreement  does  not  bind  it  to  obey  the  instructions 
which  the  agreement  gives  the  committee  power  to  make  on  be- 
half of  the  bondholders,^^  although  the  trustee  issues  certificates 
to  depositors  certifying  that  the  holder  is  bound  by  the  terms  of 
the  agreement  and  entitled  to  the  advantages  accruing  to  the  de- 
positors of  bonds  thereunder.^'  Where  the  interest  of  such  com- 


20  Continental  &  C.  Tr.  &  S.  Bank 
V.  Allis-Chalmers  Co.,  200  Fed.  600. 

21  Farmers'  L.  &  T.  Co.  v.  Cape 
Fear  &  Y.  V.  Ey.  Co.,  71  Fed.  38; 
Toler  V.  East  Tenn.,  V.  &  G.  Ey. 
Co.,  67  Fed,  168;  Pennsylvania 
Steel  Co.  V.  N.  Y.  City  Ey.  Co.,  181 
Fed.  285;  Coal  v.  Philadelphia  & 
E.  Ey.  Co.,  140  Fed.  944;  Guaranty 
Tr.  Co.  V.  Mo.  Pac.  Ey.  Co.,  238 
Fed.  872. 

22  Mercantile  Tr.  Co.  v.  U.  S. 
Shipbuilding  Co.,  130  Fed.  725.  See 
Trust  Co.  of  America  v.  Norfolk  & 
S.  Ey.  Co.,  174  Fed.  269. 


23  Morton  Tr.  Co.  v.  Metropolitan 
St.  Ey.  Co.,  168  Fed.  941. 

24  Lisman  v.  Knickerbocker  Tr. 
Co.,  C.  C.  A.,  211  Fea.  413. 

25  Farmers '  Loan  &  Tr.  Co.  v. 
Cape  Fear  &  T.  V.  Ey.  Co.,  71  Fed. 
3S;  Toler  v.  East  Tenn.  V.  &  T. 
Ey.  Co.,  67  Fed.  168;  Penu.  Steel 
Co.  V.  N.  Y.  City  Ey.  Co.,  181  Fed. 
285. 

26  Guaranty  Trust  Co.  v.  Missouri 
Pac.  Ey.  Co.,  238  Fed.  872. 

27  Ibid. 


s^  258c] 


INTERVENTION    BY    STOCKHOLDEKS 


1291 


inittee  is  adverse  to  that  of  bondholders  who  liave  uot  deposited 
under  the  reorganization  agreement  and  it  is  alleged  that  the 
trustee  acts  in  cooperation  with  the  committee  such  bondliold- 
ers  should  be  allowed  to  intervene.^*  In  general,  injustice  is 
more  apt  to  result  from  the  denial,  than  from  the  grant,  of  a 
prayer  for  intervention  in  a  railroad  foreclosure  suit. 

§  258c,  Intervention  by  stockholders.  Analogous  rules  regu- 
late the  intervention  by  stoi-khuldcrs,  in  suits  brought  by  or 
against  their  corporation. ^  In  suits  brought  by  or  against  a  cor- 
poration, stockholders  may  be  allowed  to  intervene  if  there  is 
any  danger  of  their  being  injured  by  fraud,  neglect  or  collusion 
on  the  part  of  the  officers ;  ^  and  in  some  such  cases  stockholders 
have  been  allowed  to  file  an  answer  and  defend  the  suit  in  th; 
name,  of  the  corporation. ^  The  court  has  also  allowed  cross-bills 
to  be  filed  for  the  same  purpose.*  Where  the  assets  of  a  corpora- 
tion had  been  sold  in  receivership  proceedings  at  the  instance 
of  a  creditor,  who  was  also  a  director,  the  right  of  a  stockholder 
to  hold  the  complainant  in  that  suit,  the  receiver,  and  the  other 
directors  liable  to  him  personally  for  losses  incurred  as  a  stock- 
holder by  reason  of  such  sale,  was  enforceable  by  a  separate  bill 
asainst  them,  and  not  bv  intervention  in  the  receivership  pro- 
ceedings.^ 

Stockholders  were  denied  the  right  to  intervene  to  set  uj)  as 
defense  the  default  of  a  contractor  who  had  received  the  greater 
part  of  the  bonds  and  still  retained  a  large  portion  of  them,  when 
the  controversy  was  in  litigation  in  another  court. ^    It  was  said 


28  Lisman  v.  Knickerbocker  Tr. 
Co.,  C.  C.  A.,  211  Fed.  413. 

§  258c.  1  Central  Tr.  Co.  v.  Mc- 
George,  151  U.  S.  129,  38  L.  ed.  98; 
Pa.  Steel  Co.  v.  N.  Y.  City  Ry.  Co., 
160  Fed.  222. 

2Bayliss  v.  Lafayette,  M.  &  B. 
Ey,  Co.,  8  Miss.  193.  See  U.  S.  v. 
Forty-six  Packages  and  Bags  of 
Sugar,  183  Fed.  642. 

8  Bronson  v.  La  Crosse  &  M.  R. 
Co.,  2  Wall.  283,  17  L.  ed.  725; 
Guarantee  Tr.  &  S.  Co.  v.  Duluth  & 
W.  R.  Co.,  70  Fed.  803;  Ex  parir 
Jordan,  94  IT.  S.  248,  249,  24  L.  ed. 
123;  Bayliss  v.  Lafayette,  M.  &  B. 


Ry.  Co.,  8  Biss.  193.  Contra,  Ex 
parte  Printup,  87  Ala.  148;  Streteli 
V.  Stretch,  2  Tenn.  Ch.  140.  In  Cen- 
tral Tr.  Co.  V.  Marietta  &  X.  G.  R. 
Co.,  48  Fed.  14,  the  facts  were  held 
not  to  justify  the  intervention;  but 
this  case  might  very  properly  not  be 
followed.  See  also  Blackman  v. 
Central  R.  &  B.  Co.,  58  Ga.  189; 
Central  Tr.  Co.  v.  Washington 
^  ounty,  124  Fed.  813. 

4Bartlett  v.  Gates,   118  Fed.   66. 

6  Hutchinson  v.  Philadelphia  &  G. 
s.  S.  Co.,  216  Fed.  795. 

6  Fidelity  Tr.  Co.  v.  Elberton  & 
E.  Ry.  Co.,  235  Fed.  1009. 


1292 


INTERVENTIONS 


[§  258c 


the  controversy  should  be  determined  when  the  rights  to  the  pro- 
ceeds of  the  foreclosure  sale  were  ascertained.' 

In  the  absence  of  fraud,  neglect,  or  collusion  by  the  officers 
of  the  corporation,  stockholders  will  not  ordinarily  be  allowed  to 
intervene  in  a  foreclosure  suit  before  a  decree  ^  unless  a  receiver 
has  been  appointed,  when  each  separate  group  of  stockholders 
with  conflicting  interests  or  taking  opposite  positions  may  be 
allowed  an  intervention.^  The  failure  of  the  board  of  directors 
to  defend  a  foreclosure  action,  when  a  colorable  defense  exists, 
is  a  sufficient  ground  for  allowing  the  intervention.^® 

A  stockholder  who  prays  leave  to  intervene  and  defend  on 
behalf  of  his  corporation  should  show  a  previous  request  to 
the  board  of  directors  and  their  refusal  to  defend,  or  else 
circumstances  which  would  make  such  a  request  a  vain  form ;  " 
but  if  a  petition  defective  in  this  respect  shows  a  good  defense, 
the  proceedings  should  be  stayed  until  an  opportunity  has  been 
afforded  for  the  petitioner  to  apply  to  the  board  of  directoi 


7  Ibid. 

8  Forbes  v.  Memphis,  El.  P.  & 
P.  R.  Co.,  2  Woods,  323,  333.  For 
a  peculiar  case,  see  Coffin  v.  Chat- 
tanooga W.  &  P.  Co.,  44  Fed.  535. 
For  eases  where  it  was  held,  that 
there  was  no  collusion,  see  Land 
Title  &  Trust  Co.  v.  Asphalt  Co., 
C.  C.  A.,  127  Fed.  1;  Be  Metro- 
politan Eailway  Receivership,  208 
U.  S.  90,  52  L.  ed.  403. 

9  Fowler  v.  Jarvis-Conklin  M.  Tr. 
Co.,  64  Fed.  279;  Hamlin  v.  Toledo, 
St.  L.  &  K.  C.  R.  Co.,  36  L.R.A.  826, 
78  Fed.  664,  672.  See  Toledo,  St.  L. 
&  K.  C.  R.  Co.  V,  Continental  Tr. 
Co.,  95  Fed.  497,  535. 

10  Farmers '  Loan  &  Tr.  Co,  v.  To- 
ledo, A.  A.  &  N.  M.  Ry.  Co.,  67  Fed. 
49,  53.  It  has  been  said:  "It  will 
not  avail  a  stockholder,  seeking  to 
avoid  a  default  suffered  by  a  cor- 
poration, to  allege  merely  that  the 
corporation  had  cash  and  cash  as- 
sets sufficient  to  pay  the  claim.  The 
managing   officers   may,   consistently 


with  their  duty,  resolve  not  to  pay 
it,  and  it  is  incumbent  upon  the 
stockholders  to  show  that  the  re- 
fusal to  so  apply  its  assets  cannot 
be  reconciled  with  prudent  and  fair 
management;  and  this  must  be 
shown  by  facts  of  themselves  dis- 
closing the  fraud  or  breach  of  duty, 
and  not  by  allegations  which  em- 
Ijody  nothing  but  the  ultimate  con- 
clusion necessary  to  be  established. " 
Continental  &  C.  Tr.  &  S.  Bank  v. 
Allis-Chalmers  Co.,  200  Fed.  600, 
613. 

11  Farmers'  L.  &  Tr.  Co,  v,  To- 
ledo, A,  A.  &  N.  M.  Ry.  Co.,  67 
Fed.  49;  General  El.  Co.  v.  West 
Asheville  Imp.  Co.,  73  Fed.  386; 
Rospigliosi  V.  New  Orleans,  M,  &  C. 
R.  Co.,  C.  C.  A.,  237  Fed.  347.  See 
§  145,  supra.  The  facts  must  be 
alleged  with  particularity.  General 
charges  of  fraud  and  collusion  are 
insufficient.  Continental  &  C.  Tr.  & 
S.  Bank  v,  Allis-Chalmers  Co,,  200 
Fed.  600. 


§  258c] 


INTERVENTION    BY    STOCKHOLDERS 


1293 


and  then  file  a  new  petition. ^^  Where  a  receiver  had  been  ap- 
pointed and  was  defending  the  foreclosure  suit,  the  stockholders 
were  not  allowed  to  intervene  before  they  had  communicated  the 
defense  to  the  receiver  and  he  had  refused  to  interpose  the 
same.^3  In  the  Second  Circuit,  the  usual  practice  after  receiver- 
ships is  to  permit  the  intervention  of  committees  of  stockholders 
representing  conflicting  interests;  but  ordinarily,  not  to  allow 
individual  stockholders  or  additional  committees  to  intervene.^* 
Where  bad  faith  or  oppression  on  the  part  of  the  intervening 
committee  is  shown,  intervention  by  an  individual  stockholder 
thereby  injured  should  be  allowed."  To  entitle  a  stockholder  to 
intervene  before  a  judgment  in  a  suit  against  the  corporation,  he 
must  set  forth  facts  sufificient  to  have  enabled  him  to  maintain 
an  independent  suit  to  assert  or  protect  the  corporate  right. ^^ 
Intervening  stockholders  have  been  refused  permission  to  liti- 
gate the  question  whether  other  stockholders  have  paid  their  sub- 
scriptions in  full.^' 

An  intermediate  State  court  of  review  has  held :  that  except 
under  special  circumstances  a  stockholder  has  no  right  to  inter- 
vene in  a  suit  by  another  stockholder  to  enforce  a  cause  of  action 
belonging  to  the  corporation  such  as  the  sale  of  its  assets,  even 
though  the  party  seeking  the  intervention  owns  a  majority  of 
the  stock.18  But  the  Circuit  Court  of  Appeals  for  the  second 
circuit  has  held  to  the  contrary  effeet.i^  Another  Circuit  Court 
has  held  :  that  in  a  suit  by  a  stockholder  to  set  aside  a  consolida- 


12  Farmers'  L.  &  T.  E.  Co.  v.  To- 
ledo, A.  A.  &  X.  M.  Ey.  Co.,  67 
Fed.  49,  53;  Central  Tr.  Co,  v.  Mc- 
George,  151  U.  S.  129,  38  L.  ed.  98; 
Dickerman  v.  Northern  Trust  Co., 
176  U.  S.  181,  185,  44  L.  ed.  423, 
425. 

13Cohlcy  V.  Int.  Pump  Co.,  237 
Fed.  296. 

14  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ey.  Co.,  181  Fed.  285,  in  which 
the  author  was  counsel.  This  prac- 
tice has  been  followed  in  one  case 
in  the  Seventh  Circuit.  Thomasson 
V.  Guaranty  Trust  Co.  of  N.  Y.,  C. 
C.  A.,  159  Fed.  126.  See  Central 
Tr.  Co.  V.  Chic.  B.  I.  &  P.  E.  Co., 


C.  C.  A.,  218  Fed.  336;  Investment 
Eegistry  v.  Chic.  &  M.  El.  R.  Co., 
213  Fed.  492. 

15  Thomasson  v.  Guaranty  Trust 
Co.  of  N.  Y.,  C.  C.  A.,  159  Fed.  126. 

16  Continental  &  C.  Tr.  &  S.  Bank 
V.  AUis-Chalmers  Co.,  200  Fed.  600. 
See  supra,  §  145. 

17  Fidelity  Tr.  Co.  v.  Elbcrton  & 
E.  Ey.  Co.,  235  Fed.  1009;  Fidelity 
Tr.  Co.  V.  Washington-Oregon  Corp., 
217  Fed.  588,  601. 

18  Hay  V.  Brookfield,  160-  App. 
Div.   (N.  Y.)   277. 

19  Dana  v.  Morgan,  C.  C.  A.,  232 
Fed.  85. 


1294 


INTERVENTIONS 


[§  258(1 


tiou  when  the  bill  does  not  state  that  he  sues  on  behalf  of  all,  the 
other  stockholders  have  no  right  to  intervene  unless  the  court  in 
its  discretion  so  determines.^® 

But  it  has  been  said  by  a  judge  with  wide  experience  at  the 
bar:  "The  stockholders'  action  being  but  a  derivative  one,  no 
stockholder  has  the  right  to  sue  for  himself  alone ;  his  action  is 
necessarily  representative  whether  he  calls  it  so  or  not. ' '  ^^ 

The  lower  courts  have  refused  the  intervention  of  stockholders 
in  friendly  suits  brought  by  creditors  in  which  receivers  have 
been  appointed  without  objection  by  the  corporation ;  ^  but  such 
rulings  have  not  been  approved  by  the  Supreme  Court.  It  has 
been  said:  that  stockholders  cannot  intervene  for  the  purpose 
of  questioning  the  propriety  of  the  selection  of  the  person  ap- 
pointed receiver ;  ^3  nor  to  attack  the  conduct  of  a  receiver  be- 
cause of  fraud ;  2*  and  that  the  proper  remedy,  in  the  latter  case, 
is  an  original  bill.^^ 

A  stockholder  or  creditor  of  a  corporation  may  be  allowed  to 
intervene  in  a  suit  by,  or  against,  the  receiver  of  the  company ; 
but  only  under  very  extraordinary  circumstances.^ 

§258d.  Interventions  by  g-eneral  creditors.  In  general,  a 
creditor  of  a  defendant  who  has  no  judgment  cannot  intervene 
to  defend  the  suit ;  ^  but  where  the  parties  act  in  collusion  to  cut 
off  the  rights  of  creditors,  who  are  not  secured,  the  intervention 
of  the  latter  may  be  permitted.'*    Creditors  who  objected  to  the 


I 


ZOJaeksou  Co.  v.  Gardiner  Inv. 
Co.,  C.  C.  A.,  200  Fed.  113,  117. 

21  Grant  v.  Greene  Consol.  Copper 
Co.,  169  App.  Div.  (N.  Y.)  206,  215. 
See  §  2.58a,  supra. 

22  Scattergood  v.  Am.  Pipe  & 
Const.  Co.,  C.  C.  A.,  249  Fed.  23. 
See  Hutchison  v.  Phila.  &  Gulf  S. 
S.  Co.,  216  Fed.  795. 

23  Land  Title  &  Trust  Co.  v.  As- 
phalt Co.,  114  Fed.  484.  See  Scat- 
tergood V.  Am.  Pipe  Const.  Co.,  C. 
C.  A.,  249  Fed.  23. 

24  Forbes  v.  Memphis  El.  P.  & 
Pae.  Ry.  Co.,  2  Woods,  323;  Fed. 
Cas.  No.  4,926.  See  Hutchinson  v. 
PhUa.  &  Gulf  S.  S.  Co.,  216  Fed. 
795. 


26  Forbes  v.  Memphis  El.  P.  & 
Pac.  By.  Co.,  2  Woods  323,  Fed.  Cas. 
No.  4,926. 

26  Hosmer  v.  Darrah,  85  App.  D. 
485. 

§  258d.  1  Lombard  Inv.  Co.  v. 
Seaboard  Mfg.  Co.,  74  Fed.  325; 
Farmers'  L.  &  T.  Co.  v.  Chicago  «S: 
X.  P.  Ey.  Co.,  68  Fed.  412.  See 
George  v.  St.  Louis,  C.  &  M.  Ey.  Co., 
44  Fed.  117. 

2  Louisville  Tr.  Co.  v.  Louisville, 
New  Albany  &  C.  Ey.  Co.,  174  U. 
S  674,  43  L.  ed.  1130;  infra, 
S§261,  394. 


^2r)S(l|  INTKRVEXTIOKS   HY    GENERAL    CREDITORS  1295 

appointment  of  a  certain  person  as  receiver  have  been  allowed 
to  intervene.^  p]xcept  in  extraordinary  cases,  it  has  not  been  the 
practice  in  the  Second  Circuit  to  allow  individual  creditors  to 
intervene  before  a  time  has  been  appointed  for  the  proof  of  their 
claims.* 

Where  the  mortgagor  and  the  mortgage  bondholders  have  ar- 
ranged for  a  sale  to  a  purchaser  who  agreed  to  give  the  stock- 
holders an  interest  in  the  property  without  extending  that  privi- 
lege to  unsecured  creditors,  the  creditors  who  have  no  judgments 
may  be  allowed  to  intervene  and  set  the  foreclosure  sale  aside.* 
"Any  plan  or  scheme  threatened  or  executed  whereby  the  stO(.'k- 
holders  of  the  bonds  secured  by  the  mortgage  and  the  stockhold- 
ers secure,  or  intend  or  undertake  to  secure,  to  the  stockholders, 
by  contract,  foreclosure  sale,  or  other  device,  an  equal  or  a 
greater  benefit  from  the  property  than  is  thereby  secured  to,  or 
offered  to  and  rejected  ])y,  the  general  creditors,  is  such  a  breach 
or  threatened  breach  of  trust  as  entitles  any  complaining  cred- 
itor to  relief  in  a  court  of  equity."  ^ 

Where  before  the  l)eginning  of  a  foreclosure  suit  a  receiver  had 
been  appointed  upon  a  creditor's  bill  the  court,  under  the  Idaho 
statutes,"'^  permitted  a  judginent  creditor,  and  general  creditors 
who  had  no  judgment,  to  intervene  in  the  foreclosure  suit  and 
test  the  validity  of  the  mortgage  so  far  as  it  covered  personal 
property.*  But  after  these  intervenors  had  obtained  a  decree, 
adjudging  that  certain  personal  property  claimed  by  the  mort- 
gagee was  not  subject  to  the  mortgage,  another  unsecured  cred- 
itor was  denied  permission  to  intervene  and  share  with  them  in 

the  fund.* 

When  in  a  suit  for  a  division  of  community  property  and 
for  the  accounting  ])y  tlie  husband,  the  jurisdiction  depending 
upon  the  diversity  of  citizenship  of  husband  and  wife,  it  had 

3  Coal  V.  Philadelphia  &  E.  Ey.  Touted  States  &  Mexican  Trust  Co., 
Co.,  140  Fed.  944,  945.  221  Fed.  549,  per  Sanborn,  J. 

4  Sands  v.  E.  S.  Greeley  &  Co.,  7  Idaho  Eevised  Codes,  §§3418, 
80  Fed.  195;  Pa.  Steel  Co.  v.  N.  Y.  111. 

City  Ey.  Co.,  160  Fed.  222.  8  Equitahle    Trust    Co.    v.    Great 

6  Louisville   Tr.    Co.   v.   Louisville,  Shoshone  &  Twin  Falls  "Water  Power 

N.  &  C.  Ry.  Co.,  174  U.  S.  674,  4.3  Co.,  C.  C.  A.,  245  Fed.  697,  affnn 

L.  ed.  1130.  iiig  228  Fed.  516. 
6  Western  Union  Teleprraph  Co.  v.  9  Thid. 


1296 


INTERVENTIONS 


[§  258e 


been  determined  that  the  property  should  be  divided  and  that  the 
wife  was  entitled  to  judgment  for  money  separately  due  her; 
which  was  sufficient  to  exhaust  the  husband's  estate;  creditors 
of  the  husband,  who  had  died  insolvent,  were  allowed  to  inter- 
vene and  present  their  claims.^" 

When  the  creditors  are  entitled  to  share  in  a  fund  to  be  dis- 
tributed by  the  court  they  are  allowed  to  intervene  for  that  pur- 
pose after  the  amount  of  the  fund  has  been  determined  and  be- 
fore its  distribution.^^  It  is  customary  for  the  court  to  limit  the 
time  within  which  their  claims  may  be  presented,  after  the  ex- 
piration of  the  time  thus  limited. ^^ 

§  258e.  Interventions  of  persons  entitled  to  share  in  a  fund 
held  by  the  court.  A  person  claiming  a  right  to  share  in  a  fund 
in  court  is  usually  allowed  to  intervene.^  All  parties  beneficially 
interested  in  a  fund  to  be  distributed  by  a  court  are  entitled 
to  come  in  and  prove  their  claims  before  the  master  and  to  be 
heard  on  all  those  proceedings  which  may  affect  their  interests 
or  increase  or  diminish  their  interests  in  the  fund.  It  has  been 
held  that  a  party  interested  in  a  fund,  to  recover  which  an 
action  at  law  is  pending,  cannot  be  allowed  to  intervene  therein, 
since  the  court  has  no  jurisdiction  to  distrilmte  the  proceeds  of 
the  suit. 2  In  a  suit  for  the  distribution  of  a  fund,  or  creditors' 
suit  it  is  the  usual  practice  for  the  court  to  make  an  order 
directing  that  all  parties  interested  present  their  claims  within 
a  time  prescribed  in  the  order  or  by  the  master ;  and  that  the 
master  publish  a  notice  to  that  effect  in  certain  newspapers.^ 

§  258f ,  Intervention  by  persons  interested  in  property  the 
title  to  which  is  in  dispute.    AVhen  a  stranger  to  a  suit  is  in- 


10  Johnson  v.  Johnson,  225  Fed. 
413. 

llCauffiel  V.  Lawrence,  256  Fed. 
714. 

12  U.  S.  Trust  Co.  v.  New  Mexico, 
183  U.  S.  537,  46  L.  ed.  316;  Con- 
tinental Trust  Co.  V.  Toledo,  St. 
Louis  &  K.  C.  R.  Co.,  82  Fed.  642, 
646.;.  Penn.  Steel  Co.  v.  N.  Y.  C. 
Ry.  -Co.,  220  Fed.  312,  316. 

§  258e.  1  Central  Tr.  Go.-v.  Mari- 
etta &  N.  Y.  R.  Co.,  63  Fed.  492; 
Rice  V.  Durham  Water  Co.,  91  Fed. 


433.  But  see  as  to  non-residents. 
Sands  v.  E.  S.  Greeley  &  Co.,  C.  C. 
A.,  80  Fed.  195;  Tift  v.  Southern 
Ry.  Co.,  1.59  Fed.  55.5. 

2  McKemy  v.  Supreme  Lodge  A. 
O.  U.  W.,  C.  C.  A.,  180  Fed.  961. 

3  Continental  Tr.  Co.  v.  Toledo, 
St.  L.  &  K.  C.  Co.,  82  Fed.  642, 
646.  For  an  order  directing  a  bal- 
ance to  be  heWten  years,  in  order 
to  meet  unproved  claims,  see-  Fow- 
ler V.  Jarvia  Conklin  Co.,  118  Fed. 
1022. 


§  258g]lXTEHVEXTIOX   BY  PERSON'S   INTERESTED   IX    PROPERTY     1207 

terested  in  propertj-  the  title  to  which  is  disputed  in  litigation, 
where  he  is  not  represented,  it  may  permit  liim  to  intervene.^ 
In  a  suit  b}-  one  of  two  persons  having  separate  but  similar  inter- 
ests to  enforce  a  claim  charged  on  land,^  or  to  cancel  a  deed,'  it 
has  been  held  that  the  other  has  the  right  to  intervene.  Where 
the  obligee  of  bonds  has  filed  a  bill  to  determine  who  were  tlie 
owners  to  whom  it  should  pay  interest,  a  person  claiming  to  hold 
some  of  the  bonds  as  collateral  security  was  permitted  to  inter- 
vene.* 

An  administrator,  .with  the  will  annexed,  has  been  allowed 
to  intervene,  to  continue  a  suit  brought  by  an  executor  who 
has  been  removed.^  A  trustee  or  an  ancillary  trustee  may  in- 
tervene in  the  bankrupt's  place  in  any  suit  in  which  the  bank- 
rupt was  a  party. ^    • 

Receivers  who  by  their  order  of  appointment  are  vested  with 
all  the  property  and  choses  of  action  owned  by  a  corporation 
with  the  right  to  sue  for  its  recovery,  may  intervene  and  con- 
tinue a  pending  suit  for  infringement  of  a  patent  brought  by 
the  corporation.''^ 

§  258g".  Intervention  by  persons  interested  in,  or  with  a  lien 
upon  property  which  is  the  subject  of  litigation.  A  person  who 
has  an  interest  in  specific  property  the  subject  of  litigation  in 
a  court  which  has  exclusive  control  thereof,  has  an  absolute 
right  to  intervene  in  the  litigation  in  such  court.*  An  admin- 
istrator, with  the  will  annexed,  has  been  allowed  to  intervene,  to 
continue  a  suit  bi'ouglit  l)y  an  executor  who  has  been  removed.'* 
A  trustee  or  an  ancillary  trustee  may  intervene  in  the  bank- 
rupt's place  in  any  suit  in  which  the  bankrupt  was  a  pai'ty.' 
When  the  ancillary  receiver  of  a  corporation,  which  has  been 
adjudicated  bankrupt  in  another  State  where  it  was  incorpo- 
rated, sued  for  the  administration  of  the  estate  of  another  cor- 

§  2o8f.     1  Billings  v.  Aspen  M.  &  6  The  Alert,  199  Fed.  542. 

S.  Co.,  C.  C.  A.,  51  Fed.  338.  7  National    E.    Signaling    Co.    v. 

SMathieson    v.    Craven,    247    Fed.  Telefnnken    W.    Tel.    Co.,    208    Fed. 

223.  679. 

3  Billings   v.   Aspen   M.   &   S.   Co.,  S  258g.     1  Western  Fnion  Tel.  Co. 
C.  C.  A.,  51  Fed.  338.  v.  U.  S.   &  Mex.   Tr.  Co.,  C.  C.   A., 

4  Federal    Cement   Co.   v.   Shaffer,  221  Fed.  545,  552. 

235  Fed.  912.  2  Monnionth  Tnv.  Co.  v.  Means,  C. 

5  Monmouth  Tnv.  Co.  v.  Means,  ('.       C.  A.,  151  Fed.  159. 

C.  A.,  151  Fed.  159.  3  The  Alert,  199  Fed.  542. 


1298 


INTERVENTIONS 


§25811 


poration  chartered  in  the  State  of  the  forum,  in  which  the  bank- 
rupt claimed  to  be  a  holder  of  a  large  amount  of  the  stock,  other 
claimants  of  such  stock  were  allowed  to  intervene  and  it  was 
held  that  the  latter  court  rather  than  the  court  where  the  ad- 
judication had  been  made,  was  the  proper  place  in  which  to  sue.* 

Upon  a  motion  to  set  off  one  judgment  against  another,  a 
person  claiming  an  assignment  of  the  second  judgment  has  a 
right  to  intervene  by  a  motion  which,  although  made  in  an  ac- 
tion at  law,  is  of  an  equitable  nature.^ 

A  telegraph  company,  claiming  the  right  to  use  the  railroad's 
right  of  way,  was  allowed  to  intervene  in  a  foreclosure  suit.^  A 
party  claiming  the  equitable  title  to  land  held  by  a  railway 
company  of  which  the  receiver  had  not  taken  possession,  and 
which  was  exempted  from  the  receivership  by  order,  and  not 
otherwise  mentioned  in  the  proceedings,  was  denied  leave  to 
intervene  in  a  suit  to  foreclose  a  mortgage  on  the  property  of 
the  railroad.''^ 

Receivers  have  been  authorized  to  intervene  and  continue  a 
suit  for  the  infringement  of  a  patent  brought  by  a  corporation 
over  the  estate  of  which  they  M'ere  appointed.* 

§  258h.  Interventions  pro  interesse  sue.  At  common  law,  as 
well  as  in  equity,  a  person  claiming  a  right  to  property  held  by 
a  marshal  ^  or  receiver,^  or  claiming  a  right  to  share  in  a  fund 
in  court,'  is  usually  allowed  to  intervene  pro  interesse  suo,  pro- 
vided that  he  does  not  resist  the  prayer  of  the  complainant ;  * 


4  West  V.  Empire  License  Co.,  237 
Fed.  303. 

6  Cathay  Trust  v.  Brooks,  C.  C. 
A.,  193  Fed.  973. 

6  Mercantile  Tr.  Co.  v.  Atlantic 
&  P.  E.  Co.,  63  Fed.  513 ;  Union  Tr. 
Co.  V.  Atchison,  T.  &  S.  F.  E.  Co., 
8  N.  M.  327,  43  Pae.  701. 

7  Cutting  V.  Florida  Ey.  &  Nav. 
Co.,  45  Fed.  444. 

8  Nat.  El.  Signaling  Co.  v.  Tele- 
funken  Wireless  Tel.  Co.,  208  Fed. 
679. 

S258h.  IGumhel  v.  Pitkin,  124 
U.  S.  131 ;  supra,  §  52. 

2  Lord  Pelhani  v.  Duchess  of  New- 
castle, 3  Swanst.  290;  Minot  v.  Mas- 


tin,  C.  C.  A.,  95  Fed.  734;  Mercan- 
tile Tr.  Co.  V.  Atlantic  &  P.  E.  Co., 
63  Fed.  513,  517;  Foley  v.  Grand 
Hotel  Co.,  C.  C.  A.,  121  Fed.  509; 
Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1270;   infra,  §314. 

3  Central  Tr.  Co.  v.  Marietta  & 
N.  G.  E.  Co.,  63  Fed.  492;  Eice  v. 
Durham  Water  Co.,  91  Fed.  433. 
But  see  as  to  non-residents,  Sands 
V.  E.  S.  Greeley  &  Co.,  C.  C.  A.,  80 
Fed.  195;  Tift  v.  Southern  Ey.  Co., 
159  Fed.  555. 

4  Continental  Tr.  Co.  v.  Toledo, 
St.  L.  &  K.  C.  E.  Co.,  82  Fed.  642; 
Krippendorf  v.  Hyde,  110  U.  S.  276, 
20    L.    ed.    145;    Esterbrook    Co.    v. 


§  258j] 


INTERVENTIONS     IN     PATENT    LITIGATION 


1299 


but  after  a  sale  b}^  a  marshal,  permission  to  intervene  to  set 
aside  the  same  was  denied  to  an  adverse  claimant  of  the  prop- 
erty.5 

§  258i.  Intervention  under  the  pure  food  and  drugs  ax;t.  In  a 
proceeding  under  the  Pure  Food  and  Drugs  Aet,  tlic  owner  of 
the  property  may  be  allowed  to  intervene.* 

After  permission  to  intervene  and  answer  had  been  granted, 
and  subsequently  another  order  was  made  permitting  the  answer 
to  be  withdrawn  and  exceptions  and  a  demurrer  to  the  libel  and 
information  to  be  filed ;  it  was  held  that  it  was  too  late  for  the 
district  attorney  to  object  that  there  was  no  proof  that  the  in- 
tervenor  was  a  party  in  interest  or  that  it  was  the  bona  fide 
owner  of  the  article  seized.^ 

§  258j.  Interventions  in  patent  litigation.  Persons  interested 
in  disputing  the  validity  of  a  patent  have  l)een  allowed  to  inter- 
vene to  defend  a  suit  brought  against  their  bailee,  to  enjoin  the 
use  by  it  of  cars  belonging  to  them ;  *  and  to  move  to  set  aside  a 
decree  establishing  the  validity  of  a  patent  entered  by  collusion, 
in  a  suit  to  which  they  were  strangers.^  Bui  such  persons  were 
not  allowed  to  intervene  in  a  suit  to  restrain  the  infringement 
of  a  patent  when  they  relied  upon  a  distinct  defense  not  raised 
therein.'  Nor  in  any  case  where  they  were  not  employers  of 
the  person  sued,  nor  in  direct  privity  with  him.* 


Ahern,  31  X.  J.  Eq.  3.  See  Cincin- 
nati Equipment  Co.  v.  Degnau,  C. 
C.  A.,  184  Fed.  834. 

5  Ex  parte  Mensing,   55   Fed.   17. 

§  258i.  1  U.  S.  V.  Forty-six  Pack- 
ages and  Bags  of  Sugar,  183  Fed. 
642. 

2U.  S.  V.  Forty-six  Packages  and 
Bags  of  Sugar,  183  Fed.  642,  644. 

§  258j.  1  Standard  Oil  Co.  v. 
Southern  Pac.  R.  Co.,  54  Fed.  521. 
But  see  W.  A.  Gaines  &  Co.  v.  Rock 
Spring  Distilling  Co.,  179  Fed.  544, 
a  trademark  case. 

2  Barker  v.  Todd,  15  Fed.  265. 
But  see  "Washburn  v.  Moen  Mfg.  Co. 
V.  Colwell  S.  B.  F.  Co.,  1  Fed.  225; 
Cochrane  v.  Deener,  95  U.  S.  355, 
24   L.   ed.   514.     In   Thomson-Hous- 


ton El.  Co.  V.  Western  El.  Co.,  C. 
C.  A.,  158  Fed.  813,  a  stranger  was 
not  allowed  to  intervene  upon  an 
appeal  for  the  purpose  of  having 
the  case  remanded  for  further 
proofs,  when  collusion  was  charged, 
but  the  record  did  not  furnish  any 
evidence  thereof  and  the  petitioner 
had  full  opportunity  to  intervene  in 
the  court  below. 

3  Page  V.  Holmes  B.  A.  Tel.  Co., 
18  Blatehf.  118;  s.  c,  2  Fed.  330; 
Cochrane  v.  Deener,  95  U.  S.  355, 
24  L.  ed.  514;  Thomson-Houston  EI. 
Co.  V.  Sperry  El.  Co.,  46  Fed.  75. 

4  Thomson-Houston  El.  Co.  v. 
Sperry  El.  Co.,  46  Fed.  75.  Conirn. 
Hurd  v.  Sein,  189  Fed.  591. 


i;joo 


INTERVENTIONS 


[§  258k 


Manufacturers  and  vendors  of  the  articles  charged  to  consti- 
tute an  infringement  have  been  allowed  to  intervene,^  but  not 
after  they  had  stopped  the  manufacture  and  sale  of  the  same.^ 

§258k.  Intervention  in  suit  under  the  interstate  commerce 
law.  The  act  creating  the  Commerce  Court  provides  "that 
communities,  associations,  corporations,  firms,  and  individuals 
who  are  interested  in  the  controversy  or  question  before  the 
Interstate  Commerce  Commission,  or  in  any  suit  which  may 
be  brought  by  anyone  under  the  terms  of  this  Act,  or  the  Acts 
of  which  it  is  amendatory  or  which  are  amendatory  of  it,  re- 
lating to  action  of  the  Interstate  Commerce  Commission,  may 
intervene  in  said  suit  or  proceedings  at  any  time  after  the  insti- 
tution thereof."  ^  It  has  been  held  that  this  gives  the  right  of 
intervention  to  an  incorporated  grain  exchange  or  a  board  of 
trade,  a  large  number  of  the  members  of  which  are  engaged  in 
business  that  will  be  directly  affected  by  an  order  which  it  is 
sought  to  enjoin.2 

§2581.  Intervention  in  suits  on  contractors'  bonds.  An  act 
of  Congress  gives  creditors  and  materialmen  the  right  to  inter- 
vene in  any  action  by  the  United  States  on  the  bond  of  a  con- 
tractor for  the  construction  or  repair  of  a  public  building  or 
for  the  prosecution  and  completion  of  a  public  work,  and  also 
to  file  his  claim  and  be  made  a  party  to  any  suit  by  another  cred- 
itor upon  such  bond.^ 

It  has  been  held :  that,  in  such  an  action,  the  doctrine  of  sub- 
rogation cannot  be  applied,  and  that  persons  other  than  the 
contractor  cannot  enforce  security  given  to  indemnify  a  surety 
upon  the  bond  who  has  become  insolvent.^  That  an  application 
of  credits  once  having  been  made  to  reduce  the  claim  of  an 
intervenor,  there  is  no  authority  to  make  any  other  application 
thereof. 3     That  such  intervenors  are  subject  to  the  ordinary 


6  Curran  v.  St.  Charles  Car  Co., 
32  Fed.  835. 

6  Eing  E.  &  I.  M.  Co.  v.  St.  Louis 
Ice  Mfg.  Co.,  67  Fed.  .535. 

§  258k.  1  Act  of  June  18,  1910, 
c.  309,  §  5,  36  St.  at  L.  539,  543. 

2  Nashville  Grain  Exeh.  v.  U.  S. 
(Commerce  Ct.)  191  Fed.  37.  See 
§  151,  supra. 

§  2581;     1  Act  of  August  13,  1894, 


ch.  280,  28  St.  at  L.  278,  Comp.  St. 
1901,  p.  2523,  as  amended  by  Act 
of  February  24,  1905,  ch.  778,  33 
St.  at  L.  811,  Comp.  St.  Supp.  1900, 
]i    948.     See  supra,  §  5a. 

2U.  S.  V.  United  Surety  Co.,  192 
Fed.  992. 

3  U.  S.  V.  Massachusetts  Bonding 
&  Ins.  Co.,  198  Fed.  923,  928. 


§  258m] 


LACHES  BARKING  INTERVENTION 


1301 


rules  and  practice  governing  interventions,  and  no  creditor  can 
intervene  after  the  action  has  been  dismissed  for  want  of  service 
or  lias  ])een  fully  triod  and  submitted  for  decision.* 

§  258m.  Laches  barring  intervention.  A  petition  of  inter- 
vention may  be  filed  at  any  stage  of  the  cause,  even  after  a  final 
decree,  provided,  at  least,  that  it  is  filed  at  the  same  term.^  An 
intervention  has  liecn  allowed  after  an  order  taking  the  decree 
as  eonfes.sed  by  Ihe  original  defendant,^  and  after  the  decree 
had  been  signed  but  not  entered.^  It  has  been  said :  that  it 
will  only  be  granted  after  final  decree,  in  order  to  preserve  some 
right  which  cannot  otherwise  be  protected,  or  to  avoid  some  com- 
plication which  is  likely  to  arise.*  Laches  may  be  a  reason  for 
denj'ing  a  stockholder's,  bondholder's,  or  creditor's  or  other's* 
petition  of  intervention  when  equities  on  the  part  of  the  com- 
plainant or  other  parties  interested  have  arisen  during  the  de- 
lay.^ A  delay  of  about  three  years  and  a  half  in  presenting  a 
claim  for  paj^ment  in  a  foreclosure  suit  was  held  not  to  be  laches, 
where  the  intervenor  had  in  the  meantime  obtained  a  judgment 
against  the  defendant.'  Ordinarily  the  petition  will  not  be  de- 
nied for  laches  unless  the  defendant  by  reason  of  the  delay  has 
changed  his  position,  so  that  he  would  be  damaged  by  the  inter- 
vention to  a  greater  extent  than  if  the  petition  had  been  duly 
filed. ^  After  a  friendly  suit  by  a  creditor  Avho  was  also  a  director 
of  the  defendant  for  a  sale  of  the  assets  and  a  continuance  of  the 
business  of  the  corporation,  had  resulted  in  a  sale  previously 
duly  advertised  and  afterwards  after  another  advertisement 
confirmed ;  a  petition   for  intervention  by  a   stockholder  more 


4  U.  S.  V.  McGee,  171  Fed.  209. 

§  2o8m.  1  New  York  G.  &  I.  Co. 
V.  Tacoma  Ry.  &  M.  Co.,  C.  C.  A., 
8:5   Fed.   .365 ;   supra,   §  182. 

2  Farmers '  L.  &  Tr.  Co.  v.  Toledo, 
A.  A.  &  N.  Ry.  Co.,  67  Fed.  49,  5;!. 

3  Guarantee  Tr.  &  S.  D.  Co.  v. 
Duluth  &  W.  R.  Co.,  70  Fed.  80.3. 

4  U.  S.  V.  Northern  Securities  Co., 
128  Fed.  808. 

5  Thomson-Houston  El.  Co.  v. 
Western  El.  Co.,  C.  C.  A.,  158  Fed. 
813;  Leary  v.  U.  S.,  C.  C.  A.,  184 
Fed.  433. 

6  Continental    Tr.    Co.    v.    Toledo, 

Fed.  Prac.  Vol.  11—12 


St.  L.  &  K.  C.  R.  Co.,  82  Fed.  642; 
Boston  S.  D.  &  Tr.  Co.  v.  Am.  Rap 
id  Tel.  Co.,  67  Fed.  165;  State  Trust 
Co.  V.  Kansas  City,  P.  &  G.  R.  Co., 
120  Fed.  398;  U.  S.  Trust  Co.  v. 
Chicago  Terminal  T.  R.  Co.,  C.  C.  A., 
188  Fed.  292;  Trust  Co.  of  America 
V.  Norfolk  &  S.  Ry.  Co.,  174  Fed. 
269. 

7  New  York  G.  &  I.  Co.  v.  Ta- 
coma R.  &  M.  Co.,  C.  C.  A.,  83  Fed. 
365.     Cf.  supra,   §  258. 

8  Rhinehard  v.  Victor  Talking  Ma- 
chine Co.,  261  Fed.  646. 


1302  INTERVENTIONS  [§  258n 

than  eighteen  months  after  the  sale  in  which  he  made  general 
charges  of  collusion  in  the  sale  and  of  misconduct  by  the  directors 
was  denied  because  of  laches.^  After  a  decree  dismissing  a  suit 
for  the  infringement  of  a  patent  a  petition  of  intervention  by 
an  assignee  of  the  patent  was  presented  pending  a  motion  by  de- 
fendants to  set  aside  the  decree  in  order  to  prove  an  abatement 
of  the  suit  by  the  assignment.  Both  applications  which  were 
made  within  four  months  of  the  decree  were  denied  because  of 
laches.^"  Where  general  creditors  of  a  corporation  had  made  no 
objection  to  the  acquisition  of  the  possession  of  property  hy  re- 
ceivers appointed  in  a  foreclosure  suit,  until  after  the  property 
had  been  sold  under  a  decree  and  the  sale  confirmed ;  it  was  held, 
that  they  were  estopped  by  their  laches  from  maintaining  peti- 
tions of  intervention  to  compel  the  payment  of  their  demands 
from  the  proceeds  of  the  sale,  upon  the  ground  that  part  of  the 
property  was  not  subject  to  the  lien  of  the  mortgage. ^^  After 
general  creditors  had  succeeded  by  litigation  in  obtaining  a  deci- 
sion that  certain  property  was  not  subject  to  a  mortgage  and  was 
applicable  to  their  claims,  another  creditor  was  denied  permis- 
sion to  intervene  and  share  in  the  proceeds  of  its  sale.^^  One  of 
the  original  complainants  who  had  been  omitted  by  amendment 
in  order  not  to  defeat  the  jurisdiction,  was  subsequently  allowed 
to  intervene  after  a  decision  holding  that  the  defendants  w^ho 
were  citizens  of  the  intervenor  State  were  unnecessary  parties.^^ 
§  258n.  Interventions  by  the  United  States,  States  and  Cities. 
The  Attorney-General  of  the  United  States  may  intervene  for  the 
protection  of  the  Federal  government  in  a  suit  between  two 
States  affecting  their  boundaries.^  But  not  in  a  suit  between  two 
States  affecting  the  right  to  use  the  waters  of  a  stream,  which  is 
not  navigable.2  A  district  attorney  of  the  United  States  was  re- 
fused  permission   to    intervene    in    a   civil   suit   brought  by   a 

9  Hutchinson  v.  Phila.  &  Gulf  S.  affirming  Equitable  Trust  Co.,  of  N. 
S.  Co.,  216  Fed.  795.  Y.  v.  Great  Shoshone  &  Twin  Falls 

10  Turner    v.    Lauter    Piano    Co.,       Water  Power  Co.,  228  Fed.  516. 
239  Fed.  560.  13  Mathieson  v.  Craven,  247  Fed. 

11  State   Tr.   Co.   v.   Kansas  City,       223. 

P.  &  G.  E.  Co.,  120  Fed.  398.  S  258n.     1  Florida    v.    Georgia,    17 

12  Equitable  Trust  Co.  of  N.  Y.  v.  How.  478,  15  L.  ed.  181;  supra,  §3. 
Great  Shoshone  &  Twin  Falls  Water  2  Kansas  v.  Colorado,  206  U.  S. 
Power  Co.,  C.  C.  A.,  245  Fed.  697.  46,  51  L.  ed.  956. 


?;  258ii]  INTERVENTION  \'. .    r.\i'ii;i)  s'lATi.s,  sT.\Ti:.s  AM)  riTii:^;  130.'' 

person  charged  with  a  crime  to  obtain  possession  of  certain 
papers  needed  as  evidence  before  a  grand  jury.^ 

The  United  States  *  or  a  State  ^  may  usually  intervene  in  a  suit 
affecting  property  in  wliich  the  government  claims  an  interest. 

A  State  cannot  intervene  in  a  foreclosure  suit  affecting  prop- 
erty upon  which  it  claims  no  lien,  in  order  to  enjoin  the  pro- 
ceedings upon  the  ground  that  the  plaintiff  is  forbidden  by  a 
State  statute  from  acting  as  trustee  for  the  mortgage  bondhold- 
ers.^ But  the  State  was  allowed  to  intervene  in  a  foreclosure 
suit  to  enforce  its  rights  under  a  contract  to  which  it  was  not  a 
party.'''  A  city  was  allowed  to  intervene  in  a  street  railway 
foreclosure  suit  to  compel  the  i-cceiver  to  pave  the  street  Ixtweeii 
its  tracks,  which  was  re(iuired  as  a  condition  of  the  franchise.^ 
A  taxpayer  was  allowed  in  a  suit  for  the  foreclosure  of  a  mort- 
gage upon  an  electric  light  plant  to  intervene  and  obtain  an  order 
directing  the  receiver  to  make  a  contract  with  the  city  to  supply 
electric  light. ^  Where  in  a  suit  to  enjoin  the  enforcement  of  a 
municipal  ordinance  reducing  charges  for  the  uses  of  telephones 
as  a  condition  to  a  preliminary  injunction  against  the  city  which 
was  the  sole  defendant,  the  telephone  company  had  paid  into 
court  a  fund  consisting  of  the  excess  over  the  new  rates  which  it 
had  collected ;  it  was  held  that  the  city  was  the  proper  party  to 
represent  the  telephone  subscribers  on  a  reference  to  determine 
their  share  in  the  fund  after  the  injunction  had  been  dissolved 
and  that  a  single  subscriber  had  no  right  to  intervene  on  behalf 
of  all.^"  Tn  a  suit  against  the  Attorney  General,  the  Public 
Service  Commission  and  the  District  Attorney  of  New  York 
County,  to  enjoin  the  enforcement  of  an  act  reducing  the  price  of 
gas  charged  private  consumers,  the  court  held  that  it  had  no 
power  to  allow  the  City  of  New  York  to  intervene." 

3  Potter  V.  Beal,  C.  C.  A.,  50  Fed.  ^  Tennessee  v.  Quintard,  80  Fed. 
860.  829. 

4  Stanley  v.  Sohwallw,  147  U.  S.  8  Falter  v.  Boisot,  249  Fed.  19.^. 
508,  513,  37  L.  ed.  259,  261.  9  Hodgcn  v.  Met.  El.  Ey.  Co.  (C. 

6  Tennessee   v.   Quintary,   80   Fed,  C,  W.  D.  Mo.),  per  Phillips,  D.  J., 

829;    Tindal   v.   Wesley,   167   U.   S.  May,  1894,  31   Am.   Law.  Rev.  392. 

204,  42  L.  ed.  137;   siipra,  §105.  10  i?c  Englehard  &  Sons  Co.,  231 

6  Farmers '  L.   &   Tr.   Co.  v.   Chi-  U.  S.  646. 

cago  &  N.  P.  R.  Co.,  68  Fed.  412,  H  Consolidated    Gas    Co.   v.    New- 

417  ton,  256  Fed.  238,  aff 'd  by  C.  C.  A., 


1304 


INTERVENTIONS 


[§  258o 


§  258o.  Effect  of  State  statutes  upon  intervention.  Upon  a 
petition  of  intervention  in  a  foreclosure  suit  the  court  wlien  al- 
lowing the  intervention  said  that  the  California  Statute  had  no 
application;  ^  but  a  Circuit  Court  of  Appeals  when  granting  an 
intervention  said  that  it  would  follow  the  statutes  of  Idaho,^ 
which  provided:  that  "the  right  of  a  mortgagee  to  foreclose, 
as  well  as  the  amount  claimed  to  be  due,  maj-  be  contested 
in  the  District  Court  by  any  person  interested  in  so  doing,  "^ 
"any  person  may,  before  trial,  intervene  in  an  action  or  pro- 
ceeding, who  has  an  interest  in  the  matter  in  litigation,  in  the 
success  of  either  of  the  parties  or  an  interest  against  both, 
where  prior  to  a  suit  to  foreclose  a  mortgage  a  receiver  had  been 
appointed  in  a  creditors'  suit,  the  court  did  not  err  in  permitting 
a  judgment  creditor  and  general  creditors  whose  claims  had  been 
presented  and  allowed  in  the  receivership  suit  to  intervene  in  the 
foreclosure  suit  and  contest  the  validity  of  the  mortgage  so  far 
as  it  covered  personal  property."* 


with  no  opinion,  260  Fed.  1022. 
Eeversed  for  want  of  jurisdiction, 
252  IT.  S.  — . 

S  258o.  1  Mercantile  Trust  Co.  v. 
Atlantic  Pr.  Co.,  63  Fed.  513,  517. 

2  Equitable  Trust  Co.  v.  Great 
Shoshone  &  Twin  Water  Falls  Co., 
245  Fed.  697.  See  Mantaya  v.  Gon- 
zales, 232  U.  S.  375. 

3  Idaho  E.  S.,  §  3418,  4111. 

4  Ibid.     §  4111. 

In  an  instructive  essay,  Mr.  Ed- 
ward C.  Eliot,  of  St.  Louis,  classi- 
fies cases  of  intervention  as  follows 
(31  Am.  Law  Rev.  377,  381,  382, 
383,  385,  387,  390,  391,  392)  : 

"The  intervention  of  strangers  to 
the  original  cause  which  will  be 
entertained  and  adjudicated  by  the 
Federal  courts  may  have  as  the 
basis  of  their  institution  one  of  the 
following  matters  of  interest : 

"1.  They  may  be  based  upon  a 
right  or  title  to  the  subject-matter 
paramount  in  quality  to  the  claims 
of  the  original  parties  to  the  suit 
and   extending   to   the  whole   matter 


of  rightful  ownership.  Into  this 
class  of  intervention  will  fall  al- 
most all  those  proceedings  which 
are  permitted  by  the  Federal  courts 
as  incidental  to  suits  at  law;  and 
tliey  are  closely  analogous  to  the 
ordinary  interpleas  permitted  by 
statute   and  in  the  State  courts. 

"2.  In  the  second  class  of  inter- 
ventions may  be  placed  those  which 
are  based  upon  some  statutory  or 
contractual  lien  which  the  interven- 
or  has  by  law,  independent  of  the 
peculiar  jurisdiction  of  the  Federal 
court,  and  which  he  seeks  to  impose 
upon  the  property  in  the  charge  of 
the  court  and  to  enforce  in  the  Fed- 
eral court  because  of  his  inability 
to  pursue  the  same  right  or  remedy 
in  the  State  courts.  Into  this  class 
of  interventions  fall  the  enforce- 
ment of  statutory  or  mechanics' 
liens,  charges  or  liens  which  may  be 
the  result  of  private  contract  be- 
tween tlie  parties,  and  also  judg- 
ment liens  of  later  or  earlier  date 
obtained    in    the    State    courts,    and 


§259] 


PETITION    FOR    INTERVENTION 


1305 


§  259.  Petition  for  intervention.     Where  the  original  plain- 
tiff had  no  interest  in  the  relief  prayed  in   a  petition  of  in- 


which  by  State  statute  are  made  pre- 
cedent in  right  to  the  complainant 'd 
cause  of  action.     «     •     » 

"3.  The  third  class  of  intervea- 
tions  consists  of  those  which  are 
hased,  not  upon  rights  or  titles  in 
the  subjec't-matter  existing  in  full 
force  by  law,  irrespective  of  the 
action  of  the  Federal  tril)unal,  but 
such  as  rest  upon  equities  which  are 
purely  the  creation  of  the  Federal 
courts  and  which  in  the  judgment 
of  such  courts  justify  the  preference 
of  the  intervenors,  owing  to  such 
equities,  over  the  rights  of  the  par- 
ties to  the  suit.  It  is  believed  that 
the  interventions  which  are  now  re- 
ferred to  are  peculiar  to  railroad 
foreclosures.     *     *     * 

"4.  The  fourth  class  includes 
those  interventions  which  rest  upon 
legal  rights  or  equitable  liens  upon 
the  subject-matter  in  the  hands  of 
the  court,  but  which  are  deferred  in 
law  or  equity  to  the  rights  of  the 
complainant.  They  may  be  superior 
to  the  rights  of  other  parties  to  the 
suit.  Manifestly  these  interven- 
tions, though  they  may  be  adjudi- 
cated, have  no  effect  to  postpone  or 
interfere  with  the  original  purpose 
of  the  suit.  They  apply  simply  to 
any  possible  surplus  which  may  be 
in  the  hands  of  the  officers  of  the 
court  after  the  objects  -of  the  orig- 
inal suit  have  been  effected.  They 
are  then  classified  among  themselves, 
but  are  made  liens  or  charges  only 
upon  the  remnant  of  the  property 
which  may  be  in  the  hands  of  the 
court. 

"5.  In  the  fifth  class  are  inter- 
ventions based  upon  contractual  ob- 
ligations which  may  be  made  or 
incurred    by    the    receiver    or    other 


oflTicers    of    the   court   in    charge    of 

the   property    during    the   litigation. 

*     *     * 

"6.  The  last  class  of  interven- 
tions includes  those  based  upon  the 
torts  of  the  receiver  in  the  manage- 
ment of  property  in  the  control  of 
the  court.     *     *     * 

"Owing  to  the  lack  of  under- 
standing of  the  real  nature  of  inter- 
vening petitions  and  the  fundamen- 
tal ground  upon  which  the  court 
acts,  attempts  are  often  made  to  ex- 
tend the  jurisdiction  of  the  Federal 
court  ujion  petitions  of  this  char- 
acter to  matters  or  for  results  which 
tlie  court  ought  not  to  consider  or  to 
effect.  In  a  railroad  foreclosure 
suit,  a  deficiency  decree  against 
the  defendant  corporation  for  the 
amount  of  indebtedness  not  satisfied 
cut  of  the  proceeds  of  sale  is  proper, 
because  such  is  the  original  cause 
of  action  of  the  complainant.  But 
effort  is  sometimes  made  by  indi- 
vidual bondholders  through  inter- 
ventions, to  enforce  some  statutory 
or  common-law  liability  upon  the 
stockholders  of  the  defendant  cor- 
])Oration.  While  there  may  be  no 
direct  adjudication  to  that  effect  re- 
jiorted,  it  is  evident  that  this  would 
l)e  an  extension  of  the  jurisdiction 
of  the  Federal  court  beyond  rea- 
son. ' '  But  see  Continental  &  C.  Tr. 
&  S.  Bank  v.  Allis-Chalmers  Co.,  200 
Fed.  600,  610.  "There  may  be,  of 
course,  causes  in  which  the  entire 
assets  of  a  corporation  are  taken  in 
charge  by  the  court,  as  upon  credit- 
or's bill,  where  the  individual  lia- 
bility of  the  stockholders  of  the 
corporation  may  be  an  asset  in  the 
hands  of  the  receiver  or  other  offi- 
cer of  the  court.     In  that  event,  at 


1306 


INTERVENTIONS 


^2o9 


tervention,  it  Avas  held  to  be  demurrable  because  of  his  join- 
der as  a  co-petitioner  with  the  person  interested.^  A  petition 
for  leave  to  intervene  should  describe  the  proceedings  in  the 
cause  in  which  it  is  filed,  so  that  the  court  can  see  the  nature 
and  condition  of  the  suit.^  It  may  also  contain  a  statement  of 
the  petitioner's  vicM^  of  the  case,  and  pray  in  addition  to  inter- 
vention the  final  relief  which  he  desires.  While  a  petition  of 
intervention  need  not  be  as  formal  as  a  bill  of  complaint,  and 
should  be  distinguished  for  brevity,  it  should  exhibit  all  the  ma- 
terial facts  which  are  relied  upon  for  the  specific  relief  asked, 
embodying,  either  by  recital  or  by  reference,  so  much  of  the 
record  of  the  original  suit  in  which  the  petition  is  filed  as  is 
essential  to  show  a  right  to  the  particular  relief  demanded  by  the 
petitioner.^    Where  the  petition  of  intervention  contained  gen- 


the  suggestion  or  motion  of  a  cred- 
itor, no  doubt  the  object  of  the 
principal  cause  would  justify  the 
enforcement  of  the  liability.  But 
it  will  be  seen  that  this  is  really  the 
purpose  and  object  of  the  principal 
suit.  The  matter  does  not  arise  col- 
laterally. And  the  personal  liabil- 
ity is  one  of  the  property  interests 
seized.  So  in  other  cases,  attempts 
liave  been  made  through  interven- 
tions to  try  titles  or  rights  which 
have  been  derived  through  the  re- 
ceiver or  by  operation  of  the  de- 
crees or  judgment  of  the  court. 
These,  also,  are  not  properly  sub- 
jects of  interventions,  although  the 
courts  have  indeed  held  that  a  bill 
or  motion  may  be  entertained  as 
ancillary  to  a  decree  of  judgment, 
for  the  interpretation  of  that  judg- 
ment or  decree  at  the  instance  of 
a  person  who  claims  title  under  it. 
This  is  another  case  of  the  extreme 
limit  of  the  principle.  Interven- 
tions are  also  attempted  and  some- 
times entertained  to  force  upon  the 
receiver  a  duty  to  make  some 
equitable  contract  in  favor  of  a 
public  interest.  Where  such  an 
intervention  is  to  be   considered,  it 


ought  to  rest  upon  the  propriety 
of  the  court 's  advising  the  receiver, 
and  the  proceeding  should  be  con- 
sidered as  in  the  nature  of  a  peti- 
tion by  him  for  adviee.  There  has 
been,  however,  an  instance  where 
the  intervening  petition  of  a  stran- 
ger to  a  suit  was  entertained  to 
force  the  receiver  to  make  a  con- 
tract for  the  electric  lighting,  public 
and  private,  of  a  city,  which  was 
dependent  upon  the  operation  of 
the  property  in  the  hands  of  the  re- 
ceiver for  that  purpose.  And,  in 
tliat  case,  the  judge  of  the  United 
States  court  said  that  he  would  con- 
sider the  application  out  of  public 
necessity  and  because  he  would  not 
permit  his  receiver  to  leave  the  city 
in  darkness  for  want  of  a  proper 
contract."  Hodgen  v.  Met.  El.  Ry. 
Co.,  IT.  S.  C.  C,  W.  D.  Mo.,  per 
Phillips,  D.  J.,  May,  1894. 

§  259.  1  Central  Tr.  Co.  v.  Wab- 
ash, St.  L.  &  P.  Ry.  Co.,  46  Fed. 
356. 

2  Ransom  v.  Davis'  Adm'rs,  18 
How.  295,  15  L.  ed.  388. 

8  French  v.  Gapen,  105  TJ.  S.  509, 
519,  520,  26  L.  ed.  951,  954,  955. 


259] 


PETITION    FOR   INTERVENTION 


1307 


eral  averments  showing  the  petitioner's  interest  in  the  litigation 
and  closed  with  a  statement  that  he  referred  to  all  of  the  allega- 
tions in  the  original  complaint,  in  so  far  as  they  were  not  incon- 
sistent with  the  foregoing  statement  and  claim,  and  made  the 
same  part  of  his  petition  :  it  was  held  to  be  not  defective  for  want 
of  specific  allegations  of  the  matter  thus  incorporated  by  refer- 
ence.* It  must  conform  to  the  general  rules  of  pleading  and 
must  meet  the  same  tests  that  are  applied  to  ordinaiy  pleadings 
to  determine  whether  a  cause  of  action  or  a  defense  is  stated.^ 
It  will  be  construed  in  connection  with  the  original  proceedings 
in  the  suit.®  A  petition  seeking  the  payment  by  a  receiver  of  a 
claim  must  specifically  allege  that  he  has  sufficient  funds  which 
are  properly  applicable  to  the  claim.'' 

A  petition  to  intervene  and  defend  a  suit  should  be  accom- 
panied by  the  answer  proposed,'  or,  at  least,  should  show  the 
nature  of  the  defense.^ 

It  is  the  usual  practice  to  verify  a  petition  of  intervention  by 
the  oath  of  the  petitioner.  An  affidavit  by  the  petitioner,  that 
the  allegations  in  the  petition  "are  true  as  he  verily  believes," 
was  held  to  be  sufficient ;  and,  in  the  absence  of  a  traverse,  they 
were  presumed  to  be  true  upon  an  appeal. ^^ 

A  petition  of  intervention  may  be  amended  by  leave  of  the 
court.^^  Leave  to  amend  may  be  denied  for  laches.*^  "Where, 
subsequently  to  the  filing  of  the  petition  of  intervention,  pro- 
ceedings have  been  had  under  the  original  bill  which  would  for- 


4  U.  S.  V.  Massachusetts  Bonding 
&  Ins.  Co.,  198  Fed.  923,  927. 

5  Continental  &  C.  Tr.  &  S.  Bank 
V.  Allis-Chalmers  Co.,  200  Fed.  600. 
e07. 

6  Receiver  of  Cent.  E.  &  B'g  Co. 
<..  Macon,  D.  &  S.  R.  Co.,  115  Fed. 
J>26,  927. 

7  Empire  Dis.  Co.  v.  McNulten, 
C.  C.  A.,  77  Fed.  700.  For  allega 
tions  in  an  intervening  petition,  by 
the  holder  of  a  judgment  for  death 
by  negligence  on  the  ground  that 
the  road  was  operated  by  a  company 
acting  as  the  agent  of  the  bond- 
holders, which  were  held  to  be  too 
vague    and    indefinite    to    sustain    a 


preference,  see  Veatch  v.  Am.  L.  Sc 
Tr.  Co.,  C.  C.  A.,  79  Fed.  471. 

8  Toler  v.  East  Tenn.,  V.  &  G. 
Ky.  Co.,  67  Fed.  168. 

9  Grand  Trunk  Ry.  Co.  v.  Cen- 
tral Vt.  R.  Co.,  91  Fed.  569. 

10  Louisville  Trust  Co.  v.  Louis- 
\  iUe,  New  Albany  &  C.  Ry.  Co.,  174 
U.  S.  674,  687-689,  43  L.  ed.  1130, 
1135,  1136;  s.  c,  as  Farmers'  Loan 
Sc  Trust  Co.  V.  Louisville,  New  Al- 
bany &  C.  Ry.  Co.,  103  Fed.  110, 
115. 

llWillcox  V.  Jories,  C.  C.  A.,  177 
Fed.  870,  876. 

12  Davis  V.  Virginia  Ry.  &  Power 
Co.,  C.  C.  A.,  229  Fed.  633. 


1308 


INTERVENTIONS 


[§259 


tify  the  right  of  the  intervening  petitioner,  either  to  the  par- 
ticular relief  demanded  or  to  some  other  relief,  the  matter  should 
be  incorporated  into  the  petition  by  amendment.^^  But  a  peti- 
tion of  intervention  cannot  cure  a  fatal  defect  in  the  original 
bill.i* 

A  paper  described  as  a  cross-bill, ^^  or  as  an  original  bill,^^  may 
be  sustained  as  a  petition  of  intervention.  A  paper  described 
as  a  petition  of  intervention  if  it  contains  the  necessary  allega- 
tions may  be  sustained  as  a  cross-bill  i'  or  as  an  original  bill," 
or  as  a  bill  of  review,  or  as  a  bill  in  the  nature  of  a  supplemental 
bill.^*  But  in  a  suit  by  creditors  upon  the  bond  of  a  government 
contractor  when  the  original  bill  had  been  prematurely  filed  the 
court  refused  to  sustain  as  an  original  bill  a  petition  of  interven- 
tion filed  within  the  statutory  time.^o  Where  relief  was  granted 
upon  a  petition  for  intervention,  which  regularly  should  have 
been  sought  by  an  original  bill,  since  all  the  parties  interested 
had  been  brought  before  the  court  and  had  had  a  hearing,  the 
decree  was  afifirmed.^i  The  court  will  not  decide  an  independent 
controversy  between  an  intervenor  and  an  original  defendant 
of  which  it  would  have  no  jurisdiction  upon  an  original  bill,  un- 
less it  relates  to  property  in  the  court's  possession.^"  An  inter- 
vening stockholder  acquires  no  greater  right  in  the  property 
than  he  had  before  the  suit."^  Where  an  intervening  petition 
was  filed  in  a  foreclosure  suit,  asserting  a  lien  superior  to  that 
of  the  mortgage,  and  the  intervenor  was  found  to  have  no  lien; 
it  was  held  no  error  to  dismiss  the  petition  without  awarding 


13  Empire  Dis.  Co.  v.  McNulta, 
C.  C.  A.,  77  Fed.  700,  703. 

14  U.  S.  ex  rel  Texas  Cement  Co, 
V.  McCord,  233  V.  S.  137. 

15  French  v.  Gapen,  105  U.  S.  509, 
519,  2b  L.  ed.  951,  954;  Gregory  v. 
Pike,  67  Fed.  837;  Minot  v.  Mastin, 
95  Fed.  734. 

16  Central  Tr.  Co.  of  N.  Y.  v. 
Marietta  &  N.  Ey.  Co.,  63  Fed.  492. 

17  Landon  v.  Piihlic  Utilities  Com- 
mission, 234  Fed.  152,  167. 

18  Central  of  Ga.  Ey.  Co.  v.  Paul, 
93   Fed.  878. 

19  Toledo TVIet;. "Wheel  Co.  v.  Foyer 


Bros.    &    Co.,    C.    C.    A.,    223    Fed. 
350. 

20  U.  S.  ex  rel  Texas  Portland  Ce- 
ment Co.  V.  McCord,  233  U.  S.  157, 

164. 

21  Central  of  Georgia  Ky.  Co.  v. 
Paul,  93  Fed.  878. 

22  United  El.  S.  Co.  v.  Louisville 
El.  L.  Co.,  68  Fed.  673;  Clyde  v. 
Eichmond  &  D.  E.  Co.,  65  Fed.  336. 
See  Olds  Wagon  Works  v.  Benedict, 
C.  C.  A.,  67  Fed.  1. 

23  Shaffer  v.  McCulloch,  C.  C.  A., 
192  Fed.  801. 


§2r)9a]  NOTICE   OF    APPLICATION    FOR    INTERVENTION  1309 

him  a  money  judgment.^*  \Vliere  the  original  suit  appeared  to 
have  been  brought  by  collusion,  jurisdiction  was  retained  over 
intervening  petitioners  who  asserted  claims  to  property  held  by  a 
receiver  therein  appointed.^*  Where,  at  the  time  of  the  interven- 
tion, the  suit  is  pending  in  a  Slate  court,  the  intervenors  may  in 
a  pi'0])er  case  remove  it.^^  Unless  it  expressly  reserves  their 
rights,^'''  the}'  have  the  rigiit  to  appeal  from  the  final  decree,  and 
can  then  olgect  to  all  interlocutory  proceedings  taken  after  their 
intervention. 2^  Where  a  <ily  had  intervened  in  a  creditor's  suit 
and  had  acquiesced  in  an  order  regulating  the  rate  of  fares,  it 
was  held  that  it  could  not  object  tliat  the  court  had  no  jurisdii-- 
tion  to  restrain  its  passing  an  ordinance  affecting  such  fares.^® 

§  259a.  Notice  of  application  for  intervention.  All  the 
parties  to  the  suit  are  presumed  to  be  jjai-ties  to  the  petition  of 
intervention,  and,  under  the  former  practice  were  presumed  to 
take  notice  of  the  same  when  it  was  filed,  although  it  was  safer 
to  serve  them.^  Notice  of  an  application  for  intervention  may, 
bj'  leave  of  the  court,  be  served  on  the  attorneys  for  the  other 
parties  to  the  suit,  who  are  beyond  the  jurisdiction  of  the  court, 
unless  the  petition  sets  uj)  new  facts  not  set  out  in  the  bill  nor 
germane  to  the  case  thereb}^  made,  which  are  made  the  basis 
of  a  prayer  for  independent  afifirmative  relief,  when  it  has  been 
held  that  such  substituted  service  cannot  be  permitted. ^  New 
parties  brought  in  by  the  intervenors  should  be  served  with  a 
subpcena  or  some  other  notice  in  the  same  manner  as  if  the  peti- 
tion were  an  original  bill.^  It  has  been  held  that,  even  where 
the  parties  are  beyond  the  territorial  jurisdiction  they  may  be 

24  U.  S.   Tr.   Co.  v.  Western   Con-  252,   24   L.   od.   12.!,   12.j;    Williams 

tract  Co.,  C.  C.  A.,  81  Fed.  454.  v.  Morgan,  111  U.  S.  684,  28  L.  ed. 

26  El.  Supply  Co.  v.  Port  Bay  W.  559. 

L.  &  Ry.  Co.,  84  Fed.  740.  29  Henry  L.  Dolierty  Co.  v.  Toledo 

26  Hack  V.    Chieago   &   C.   S.   Ry.  Rys.  &  Light  Co.,  254  Fed.  597. 

Co.,  2;{  Fed.  .■55(3;   Jaokson  &  Sliarj)  §  259a.     1  Central  Tr.  Co.  v.  Mad 

Co.   V.   Pearson,   60    Fed.    IIM,    12.3;  den,  C.  C.  A.,  70  Fed.  451;  McLeod 

infra,   §  :{84.     But   see   Iowa   Home-  v.  City  of  New  Albany,  66  Fed.  .''.78; 

stead  Co.  v.  Des  Moines  Xav.  &   R.  Lombard  Inv.  Co.  v.  Seaboard  Ml'g. 

Co.,  8  Fed.  97.  Co.,  74  Fed.  325.    See  supra,  §  257. 

27Reid  v.  Judges  of  Circuit  Court  2  Fidelity  Tr.  &  S.  V.  Co.  v.  Mo- 

of   United   States   for   Eastern   Dis-  I'ile  St.  Ry.  Co.,  55  Fed.  850.     See 

tiict  of  Virginia,  C.  C.  A.,  175  Fed.  supra,    §  165. 

774.  3  Hook  v.  Mercantile  Tr.  Co.,  95 

28  Ex  parte  Jordan,  94  V.  S.  248,  Fed.  41,  47. 


1310 


INTERVENTIONS 


§  259b 


served  by  mailing  to  them  a  copy  of  an  order  directing  that 
they  demur,  plead,  or  answer  to  the  petition.*  The  proceed- 
ings in  the  suit  may  be  stayed  pending  the  hearing  upon  a  peti- 
tion of  intervention,  although  such  relief  is  extraordinary.^ 

§  259b.  Opposition  to  intervention.  If  any  of  the  original 
parties  wishes  to  contest  the  petitioner's  right  to  intervene,  he 
must  do  so  specifically  at  the  hearing  upon  the  petition. i  Under 
the  former  practice,  he  might  file  a  demurrer,  plea,  or  answer  to 
the  petition.2  Under  the  Equity  Rules  of  1912,  the  objection 
should  be  raised  by  a  motion  to  dismiss,^  or  by  a  specific  defense 
set  up  in  the  answer.*  In  the  absence  of  a  specific  objection  to 
the  omission,  affirmative  relief  may  be  awarded  against  the  in- 
tervenor  in  favor  of  a  party  whose  answer  to  the  petition  of  in- 
tervention contains  no  prayer  for  such  relief.^  Under  the  for- 
mer practice  it  was  held  that  opposition  to  the  application  was 
waived  where  the  complainant  consented  to  the  issue  of  process 
on  a  petition  of  intervention  and  demurred  thereto,  without  ob- 
jecting to  the  right  of  intervention  ^  and  by  an  answer  to  the 
merits  of  the  inventor's  claim.'''  The  usual  practice  is  to  present 
the  objections  informally  by  affidavit  or  otherwise  upon  the  hear- 
ing.8  It  was  held  that  the  objection,  that  the  intervenor's  claim 
was  barred  by  his  failure  to  present  the  same  within  the  time 
limited  by  a  previous  order  in  the  cause,  should  be  raised  by  plea 
and  not  by  demurrer.^  It  has  been  said:  that  a  receiver  may 
be  required  to  plead  to  the  petition. i" 


4Baclie  v.  Hunt,  Thompson,  J. 
C.  C,  N.  D.  Ohio,  W.  Div.  Dee.  4, 
1901.  (Appeal  dismissed  Baclie  v. 
Hunt,  193  U.  S.  523,  524,  48  L.  ed. 
774,  775). 

5  Pennsylvania  Co.  v.  Jackson- 
ville, T.  &  K.  Ry.  Co.,  55  Fed.  131. 

§  259b.  1  French  v.  Gapen,  105 
U.  S.  509,  525,  26  L.  ed.  951,  956; 
Meyers  v.  Fenn,  5  Wall.  205,  18  I., 
cd.  604. 

2  Central  Tr.  Co.  v.  Wabash,  St. 
L.  &  P.  Ry.  Co.,  46  Fed.  156. 

3  See  Eq.  Rule  29 ;  Horn  v.  Pcro 
Marquette  R.  Co.,  151  Fed.  626; 
McClellan  v.  Blaekman,  188  Fed. 
934. 


4Eq.  Rule  29.  See  Central  Tr. 
Co.  of  N.  Y.  v.  Wabash,  St.  L.  &  P. 
Ry.  Co.,  46  Fed.  156. 

5  Kansas  City  So.  Ry.  Co.  v. 
Guardian  Tr.  Co.,  240  U.  S.  166, 
178. 

6  Illinois  Steel  Co.  v.  Ramsey,  C. 
C.  A.,  176  Fed.  853. 

7  Horn  V.  Pere  Marquette  R.  Co., 
151  Fed.  626. 

8  Interventions  in  the  Federal 
Courts,  by  Edward  C.  Eliot,  31  Am. 
Law  Rev.  377,  quoted  fnipra,  §  258o. 

9  Central  Tr.  Co.  v.  Wabash,  St. 
L.  &  P.  Ry.  Co.,  46  Fed.  156. 

10  Mercantile    Trust    Co.    v.    Pitts- 


§  259c]         HEARING   ON    API'LICATION    FOR    INTERVENTION 


1311 


A  failure  to  answer  allegations  in  llie  petition,  or  to  deny  the 
same  by  affidavit,  is  cojisidered  to  be  an  admission  of  the  truth 
of  the  same.^*  Unless  ineonsistent  with  the  reeoid  of  the  court  ^^ 
there  is  no  presumption  in  favor  of  its  truth. ^'  The  filing  of  a 
replication  to  a  petition  of  intervention  and  the  proceeding  to  a 
hearing  v^ere  held  to  be  a  waiver  of  objections  to  the  sufficiency 
of  the  petition  and  to  the  absence  of  an  order  granting  leave  to 
intervene.^* 

Where,  at  the  time  of  the  intervention  the  suit  is  pending  in  a 
State  Court  the  intervenors,  may  in  a  proper  case  remove  it.^^ 

Unless  the  decree  expressly  reserves  his  rights  ^^  an  interven- 
ing defendant  has  the  right  to  appeal  from  the  final  decree  and 
can  then  object  to  all  interlocutory  proceedings  taken  after  his 
intervention.^'^ 

§  259c.  Hearing-  upon  application  for  intervention.  The  fil- 
ing of  a  replication  1o  a  petition  of  intervention  and  the  pro- 
ceeding to  a  hearing  were  held  to  be  a  waiver  of  objections  to  the 
sufficiency  of  the  petition  and  to  the  absence  of  an  order  granting 
leave  to  intervene.^  It  is  the  rule  in  the  Eighth  Circuit,  that 
where  the  petition  sets  up  a  cause  of  action  maintainable  at  com- 
mon law  the  issue  shall  be  tried  by  a  jury.^  At  the  hearing 
upon  a  petition  of  intervention  it  is  customary  for  the  court  to 
determine  the  right  of  the  petitioner  to  intervene ;  and  then,  if  it 
decides  in  his  favor  in  that  respect,  to  refer  the  case  to  a  master 


burg   &   W.   By.   Co.,   C.   C.   A.,    11.1 
Fed.  475. 

11  Louisville  Tr.  Co.  v.  Louisville, 
New  Albany  &  C.  R.  Co.,  174  U.  S. 
674,  43  L.  ed.  1130. 

12  Beaton  v.  Seaboard  Portlantl 
Cement  Co.,  C.  C.  A.,  211  Fed.  84. 

13  Ibid. 

14  Perry  v.  Oodbe,  82  Fed.  141. 

15  Hack  V.  Chicago  &  G.  S.  Ry.  Co., 
23  Fed.  356;  Jackson  &  Sharp  Co. 
V.  Pearson,  60  Fed.  113,  123;  infra, 
§  384.  But  see  Iowa  Homestead  Co. 
V.  Des  Moines  Nav.  &  R.  Co.,  8  Fed. 
97. 


16  Reid  v.  Judges  of  the  Circuit 
Court  of  the  United  States  for 
Eastern  District  of  Virginia,  C.  C. 
A.,  175  Fed.  774. 

17  Ex  parte  Jordan,  94  U.  S.  248. 
252,  24  L.  ed.  123,  125;  Williams  v. 
Morgan,  111  U.  S.  684,  28  L.  ed.  559. 

§  259c.  1  Perry  v.  Godbe,  82  Fed. 
141. 

2  Rouse  V.  Hornsby,  C.  C.  A.,  67 
Fed.  219.  So  held  in  Atkyn  v.  Wa- 
bash Ry.  Co.,  41  Fed.  193,  N.  D. 
Ohio. 


1312 


INTERVENTIONS 


[§  259c 


to  report  upon  his  right  to  the  other  relief  which  he  seeks.  But 
the  court  may  decide  the  whole  case  without  a  reference.'  If  he 
shows  a  prima  facie  case,  his  application  will  ordinarily  be 
granted;  although  the  questions  concerning  his  rights  in  the 
premises  are  doubtful.*  But  the  court  may  determine  his  rights 
when  denying  the  application.^  The  intervention  may  be  al- 
lowed generally  or  only  for  a  specific  purpose  ^  such  as  in  sup- 
port of  the  right  to  be  heard'upon  the  settlement  of  the  decree, 
as  to  the  terms  of  sale  "^  and  upon  the  distribution  of  the  fund,* 
and  upon  a  reference  to  determine  the  validity  of  certain  securi- 
ties and  of  a  pledge  of  such  securities.^ 

An  order  denying  an  application  for  intervention  is  not  7-e.s 
adjudicata  upon  the  rights  of  the  petitioner,  in  another  suit.^® 
It  has  been  said  that  a  denial  of  a  petition  for  leave  to  inter- 
vene in  an  action  at  law  is  res  adjudicata  against  a  bill  in  equity 
to  enjoin  the  proceedings  and  to  permit  an  intervention,"  but 
that  a  denial  of  leave  to  intervene  in  a  suit  in  equity  is  not  res 
adjudicata  against  an  original  bill  for  the  same  relief. ^^  Leave 
to  intervene  when  granted  should  be  given  by  order ;  "  but,  by 
proceeding  without  objection,  an  om.ission  to  enter  such  an  order 
will  be  waived.^*  Intervening  petitions  filed  without  leave  have 
been  stricken  from  the  files.^^    Leave  has  been  granted  to  with- 

Tr.  Co.  V.  Bank  of  Beruice,  C.  C.  A., 
239  Ted.  665. 

13  For  the  form  of  an  order  see 
Ex  parte  Jordan,  94  U.  S.  248,  249, 
24  L.  ed.  123. 

14  Meyers  v.  Fenn,  5  Wall.  205,  18 
L.  ed.  604;  French  v.  Gapen,  105 
U.  S.  509,  525,  26  L.  ed.  951,  956; 
Ferry  v.  Godbe,  82  Fed.  141. 

15  Continental  Trust  Co.  v.  Toledo, 
St.  Louis  &  K.  C.  Ry.  Co.,  82  Fed. 
642,  661,  s.  C,  86  Fed.  929,  951. 
In  the  same  case,  as  Toledo,  St. 
Louis  &  K.  C.  Ry.  Co.  v.  Continental 
Trust  Co.,  C.  C.  A.,  95  Fed.  497,  536, 
it  was  said,  speaking  of  an  answer, 
and  cross-bill  filed  by  a  stranger  to 
the  suit  without  permission:  "He 
should  have  sought  admission  as  au 
independent  defendant.  This  he 
did  not  do;  unless  the  unauthorized 


3  Central  Tr.  Co.  v.  Madden,  70 
Fed.  450. 

4Brinckerhoff  v.  Holland  Trust 
Co.,  146  Fed.  203. 

5  Investment  Registry  v.  Chic.  & 
M.  El.  R.  Co.,  213  Fed.  492. 

6  Lisman  v.  Knickerbocker  Tr.  Co., 
C.  C.  A.,  211  Fed.  413,  416,  423. 

7  Fidelity  Tr.  Co.  v.  Washington- 
Oregon  Corp.,  217  Fed.   588,  603. 

8  Ibid. 

9  Lisman  v.  Knickerbocker  Tr.  Co., 
C.  C.  A.,  211  Fed.  413,  416,  423. 

10  McDonald  v.  Seligman,  81  Fed. 
753. 

11  McDonald  v.  Seligman,  81  Fed. 
753. 

12  Credits  Commutation  Co.  v.  U. 
S.,  177  U.  S.  311,  44  L.  ed.  782.  See 
Manhattan  Tr.  Co.  v.  Sioux  City  & 
N.  R.  Co.,  102  Fed.  710;   Securities 


§259d]  PRACTICE  ri'ox  i.\TLi£Vi:.\Tiit.\  1313 

draw  ail  iiilcrvciition,  with  llif  j)leadiiig  of  the  iiiterveiior  and 
the  testirnony  in  pioc^-tM linns  in  relation  to  his  contention. ^^ 

§  259d.  Practice  upon  intervention.  Tlic  filinp:  of  a  pctiticni 
of  intervention  is  a  voluntary  general  appearance  in  the  suit,  and 
the  petitioner  is  there])y  estopped  from  claiming  that  the  court 
has  no  jurisdiction  ()\(m-  liiiii  t'oi'  any  piii-pose  or  cause  which,  hy 
proper  amendniciit  of  the  ])l('adings,  can  be  brought  into  it.^ 
After  intervention  tlie  new  parties  are  treated  to  all  intents  and 
purposes  as  if  they  luid  been  original  parties  to  the  suit.'' 

The  intervenor  may  be  rccpiired  to  make  his  petition  more 
definite  and  certain,  or  to  file  a  cross  bill,  in  one  case  styled, 
a  bill  of  intervenor,  or  a  supplemental  bill,  specifically  setting 
forth  his  interest  in  the  litigation,^  and  to  include  therein  his 
defense  to  a  release  or  other  affirmative  defense,  set  up  by 
defendant.*  Jf  the  tinije  to  take  testimony  has  expired,  no  new 
depositions  can  be  taken  by  him  without  special  permission 
of  the  court. ^  An  order  may  lie  made  directing  that  all  evi- 
dence taken  bwforc  the  intervention  shall  stand  and  be  read  as 
evidence  upon  the  existence  and  enforeibility  of  the  inter- 
venor's  claim  so  far  as  pertinent  although  some  of  the  witnesses 
whose  testimony  may  thus  be  read  are  no  longer  living.^  An 
intervenor  is  entitled  to  the  same  notice  and  hearing  of  subse- 
quent proceedings  that  must  be  afforded  to  an  original  party ."^ 
He  is  bound  to  ascertain  the  state  of  the  record  as  it  then  exists 
and  is  not  entitled  to  notice  of  a  subsequent  hearing  before 
a  master  notice  of  which  has  before  the  intervention  been  served 
upon  the  original  parties.* 

filing  of  his  pleading  be  regarded  as  3  Rhinehard      v.      Victor     Talking 

an  application  for  leave  to  intervene.  Maeliine  Co.,  261  Fed.  646. 

If  so,  it  was  denied  him. "  4Khinehard     v.     Vic-tor     Talking 

levic'ksburg   v.   Vickshurg    Water  Alachinc    Co.,    261    Fed.    646,    647, 

Works  Co.,  202  U.   S.  453,  461,   50  651. 

L.  ed.  1102,  1108.  6  Mathieson    v.    Craven,   247    Fed. 

§  259d.     1  Bowdoin       College       v.  22.*^. 

Merritt,  59  Fed.  6;  Jack  v.  D.  M.  &  6  Ibid. 

Ft.   D.   E.   Co.,   49   la.    627;    sttpra.  7  Gay  v.  Hudson  River  El.  Power 

§§  169,    170.     But    see    Laughliii    v.  Co.,  C.  C.  A.,  169  Fed.  956. 

Leigh,  107  111.  App.  476.  B  Re  Smith,  232  Fed.  284. 

2  French  v.  iJapen,  105  U.  S.  5U9, 
52,  26  L.  ed.  051,  956. 


1314 


INTERVENTIONS 


[§  259e 


§  259e.  Appeals  from  orders  upon  interventions  and  their  re- 
view by  writs  of  error.  It  has  been  held  that,  where  the  issues 
have  been  decided  by  a  jury  trial,  the  review  should  be  by  writ 
of  error,!  i^^^  ^hat  the  denial  of  a  motion  to  intervene,  to  op- 
pose an  application  for  the  set-off  of  judgment,  is  a  final  order 
and  should  be  reviewed  by  an  appeal.^  The  final  order  or  de- 
cree upon  a  petition  of  intervention  after  the  intervention  has 
been  granted  may  be  reviewed  apart  from  the  appeal  from  the 
final  decree  in  the  whole  cause  where  it  is  distinct  from  the 
same,^  but  where  the  ease  is  one  in  which  the  Circuit  Court  of 
Appeals  has  final  jurisdiction  of  an  appeal  from  the  decree  in 
the  original  cause,  its  decree  upon  an  appeal  from  the  final 
decree  or  order  upon  the  intervenor's  claim  is  likewise  final, 
even  though  a  Federal  question  is  involved  therein.*  Where 
a  pleading  of  interv^ention  in  an  action  at  law  was  dismissed  by 
the  final  judgment  on  the  ground  that  it  did  not  state  a  cause 
of  action,  the  intervenor  may  sue  out  a  writ  of  error.* 

It  has  been  said  that  ordinarily  an  order  denying  the  right 
to  intervene  is  not  appealable.^ 

After  permission  has  been  granted  the  intervenor  is  en- 
titled to  a  determination  of  his  claims  by  the  decree  of  the  court 
pursuant  to  the  rules  of  jurisprudence  in  equity  and  if  aggrieved 
he  has  the  right  to  appeal.''^  Where  a  denial  of  the  right  to  in- 
tervene is  a  practical  denial  of  all  relief  to  the  petitioner,  who 
has  no  other  means  of  redress,  an  appeal  will  lie  from  an  order 


§  259e.  1  Eouse  v.  Hornsby,  C.  C. 
A.,  67  Fed.  219.  Otherwise  it  was 
held  where  the  trial  was  in  another 
court  before  the  intervention.  Shook 
V.  Dozier,  C.  C.  A.,  168  Fed.  867. 

2  Cathay  Trust  v.  Brooks,  C.  C. 
A.,  193  Fed.  973. 

3  Central  Tr.  Co.  v.  Grant  Loco- 
motive Works,  135  T.  S.  2U7,  3-1  L. 
ed.  97;  Pennsylvania  R.  Co.  v.  Wa- 
bash, St.  L.  &  P.  Ry.  Co.,  155  U.  S. 
335,  39  L.  ed.  176;  Eouse  v.  Horns- 
by, 67  Fed.  219;  Hanrick  v.  Patrick, 
119  U.  S.  1.56    30  L.  ed.  396. 

4  Rouse  V.  Letcher,  156  U.  S.  47, 
■39  L.  ed.  341;  Gregory  v.  Van  Ee, 
160  IT.  S.  643,  40  L.  ed.  566;  Rouse 


V.  Hornsby,  161  U.  S.  588,  40  L.  ed. 
817. 

5  U.  S.  V.  N.  W.  Development  Co., 
C.  C.  A.,  203  Fed.  960. 

6  Ex  parte  Cutting,  94  U.  S.  14; 
Credits  Commutation  Co.  v.  U.  S., 
177  TT.  S.  311,  20  Sup.  Ct.  636,  44 
L.  ed.  782;  Thoniasson  v.  Guaranty 
Tr.  Co.,  C.  C.  A.,  159  Fed.  126;  U. 
S.  Tr.  Co.  V.  Chic.  Term.  Ti-.  Co., 
C.  C.  A.,  188  Fed.  292;  Farmers'  & 
Merchants'  Bank  v.  Arizona  M.  S. 
&  L.  Ass'n,  C.  C.  A.,  220  Fed.  1,  7, 
and  cases  cited. 

7  Western  Union  Tel.  Co.  v.  U.  S. 
&  Mex.  Tr.  Co.,  C.  C.  A.,  221  Fed. 
545,  552. 


^  2590 


\i-i'i:vL8  PKo.M  ()ki>i:ks  ri'it.N   interventions 


:J1. 


denying  an  intervention.*  For  example :  where  a  suit  is  brought 
by  a  member  of  a  class,  on  behalf  of  the  others  as  well  as  of  him- 
self, any  member  of  that  class  has  the  right  to  appeal  from  an 
order  denying  his  application  for  an  intervention.^  So,  wliere 
there  is  a  fund  in  court  in  the  course  of  administration  which 
will  be  distributed  to  otliers  unless  the  intervenor's  claim  is 
forthwith  determined, ^°  or  whei-e  jiroceedings  for  a  reorganiza- 
tion are  pending.*^ 

But  otherwise  an  order  denying  leave  to  intervene  is  ordi- 
narily not  appealable.^^  Where  the  right  of  intervention  has 
been  allowed  ])y  the  court,  an  order  striking  the  petition  from 
the  files  is  the  subject  of  an  appeal. ^^  Upon  an  appeal  from  an 
order  denying  an  intervention,  a  previous  order  striking  out 
parts  of  the  jjetition  may  be  reviewed.^*  No  bill  of  exceptions 
and  no  exception  is  required  for  such  a  review.^^ 

It  has  been  held  that  the  proper  practice  is  for  the  District 
Court  to  grant  an  appeal  in  every  case,  leaving  tlie  question  of 
the  appealability  of  the  order  for  the  decision  of  the  court  of 
review.^^  Tt  may  perhaps  be  reviewed  in  an  extraordinary 
case,  by  an  application  to  the  court  of  review  for  a  mandamus.^'' 


8  Credits  Commutation  Co.  v.  U. 
S.,  91  Fed.  570,  573;  s.  c,  177  U.  S. 
311,  44  L.  ed.  782;  Illiuois  Steel  Co. 
V.  Eamsey,  C.  C.  A.,  176  Fed.  853; 
U.  S.  Trust  Co.  of  N.  Y.  v.  Chicago 
Terminal  Transfer  R.  Co.,  C.  C.  A., 
188  Fed.  292;  Cathay  Trust  v. 
Brooks,  C.  C.  A.,  193  Fed.  973; 
Farmers '  &  Merchants '  Bank  v.  Ari- 
zona M.  S.  &  L.  Ass  'n,  C.  C.  A.,  220 
Fed.  1;  Billings  v.  Aspen  M.  &  S 
Co.,  C.  C.  A.,  51  Fed.  338;  Ceiitral 
Tr.  Co.  V.  Chic.  R.  1 .  &  Pa3.  R.  Co., 
C.  C.  A.,  218  Fed.  336. 

9  Illinois  Steel  Co.  v.  Ramsey,  C. 
C.  A.,  176  Fed.  853,  863. 

10  Credits  Commutation  Co.  v.  U. 
S.,  C.  C.  A.,  91  Fed.  570,  573,  aff  M. 
177  U.  S.  311,  44  L.  ed.  782;  W.  V. 
Tel.  Co.  V.  U.  S.  &  Mex.  Tr.  Co., 
C.  C.  A.,  221   Fed  545. 

11  Central  Tr.  Co.  v.  Chic.  R.  I.  & 
P.  R.  Co.,  C.  C.  A.,  218  Fed.  336. 

12  Ex  parte  Cutting,  94  U.  S.  14, 


24  L.  ed.  49;  Jones  &  Laughlin 's 
L'd  V.  Sands,  79  Fed.  913;  Credits 
Commutation  Co.  v.  U.  S.,  91  Fed. 
570,  573;  s.  C,  177  U.  S.  311,  44 
L.  ed.  782;  Toledo,  St.  L.  &  K.  C. 
R.  Co.  V.  Continental  Tr.  Co.,  95 
Fed.  497,  536.  Ex  paric  In  the  Mat 
ter  of  Leaf  Tobacco  Board  of  Trade 
of  the  City  of  New  York,  Petitioner, 
222  IT.  S.  578,  56  L.  ed.  323. 

13  Illinois  Steel  Co.  t.  Ramsey,  C. 
C.  A.,  176  Fed.  853;  Western  Un. 
Tel.  Co.  V.  U.  S.  &  M.  T.  Co.,  221 
Fed.  545. 

14  W.  U.  Tel.  Co.  V.  U.  S.  &  M.  T. 
Co.,  221  Fed.  545. 

16  Ibid. 

16  U.  S.  V.  Phillips,  C.  C.  A..  107 
Fed.  824. 

17  lie  Metropolitan  Railway  Re- 
ceivership, 208  IT.  S.  90,  52  L.  ed. 
in;;  (in  whicli  tin-  author  was  coun- 
sel .  ;  Fink  v.  Bay  Shore  Terniiiial 
Co..  C.  C.  A.,  128  Fed.  209. 


1316 


INTERVENTIONS 


[§260 


§  260.  Rights  of  intervening  complainants.  Under  ordinary 
circumstances,  a  person  who  intervenes  as  plaintiff  will  not  be 
allowed  to  be  represented  by  a  different  solicitor  from  the  one 
who  represents  the  original  complainant  at  the  time  of  the 
former's  intervention.^  The  person  who  brought  the  suit  re- 
mains dominus  litis.  The  court  maj',  however,  direct  that  the 
intervenor  be  notified  in  the  event  of  any  proposal  to  dispose 
of  the  cause,  otherwise,  than  in  the  usual  way  at  final  hearing 
of  pleadings  and  proof,  in  which  case  an  application  to  allow 
him  to  continue  the  litigation  by  his  own  attorney  will  be  con- 
sidered.^ 

In  case  of  laches  by  the  attorneys  for  the  original  complain- 
ant, an  intervening  plaintiff  may  be  allowed  to  continue  the 
case  by  his  own  attorney.'  Permission  to  do  this  maj'  be  con- 
ditioned upon  his  giving  security  to  pay  whatever  the  court 
may  find  to  be  due  the  latter  as  his  ratable  proportionate  share 
of  tlie  expense  of  the  litigation.* 

When  the  intervening  plaintiff  moved  to  bring  in  a  new 
defendant,  to  which  the  original  plaintiff  objected,  a  New  York 
court  granted  the  motion,  upon  condition  that  the  moving  party 
give  a  bond  to  indemnify  the  plaintiff  against  any  costs  that 
such  defendant  might  recover.^ 

It  has  been  held  that,  where  a  creditor  delays  his  intervention 
until  after  a  decision  in  favor  of  the  plaintiff,  the  payment  of 
his  claim  may  be  postponed  until  after  those  who  have  con- 
ducted the  litigation  bave  received  full  satisfaction.^ 

The  Equit}^  Rules  expressly  provide:  "The  intervention  shall 
be  in  subornation  to,  and  recognition  of,  the  propriety  of  the 


§  260.  1  Bowker  v.  Haight  & 
Freese  Co.,  140  Fed.  794,  in  which 
the  author  was  counsel.  Manning 
V.  Mercantile  Tr.  Co.,  37  Misc.  N. 
Y.  215,  75  N.  Y.  Supp.  168. 

2  Bowker  v.  Haight  &  Freese  Co., 
140  Fed.  794. 

3  Manning  v.  Mercantile  Trust 
Co.,  37  Misc.  (N.  Y.)  215,  75  N.  Y. 
Supp.  168;  Edwards  v.  Bay  State 
Gas  Co.,  120  Fed.  585. 

4  Manning  v.  Mercantile  Trust 
Co.,  37  Misc.  (N.  Y.)  215,  75  N.  Y. 
Supp.  168. 


6  Weed  v.  First  National  Bank, 
117  App.  Div.  (N.  Y.)  340.  But 
see  Edwards  v.  Bay  State  Gas  Co., 
120  Fed.  585. 

6  Smith  V.  Kraft,  11  Biss.' 340; 
.Tones  v.  Davenport,  45  N.  J.  Eq. 
77,  87.  Cf.  McDermott  v.  Strong,  4 
J.  Ch.  (N.  Y.)  687;  Edmiston  v. 
Lyde,  1  Paige  (N.  Y.),  639,  19  Am. 
Dec.  454.  But  see  Wilder  v.  Keeler, 
3  Paige  (N.  Y.),  164,  23  Am.  Dec. 
781;   Strike's  Case,  1  Bland   (Md.). 


^260] 


RIGHTS   OF    INTERVENING    COMPLAINANTS 


1317 


main  proceeding."'''  An  intervening  complainant  cannot  eon- 
test  the  general  object  of  the  suit,*  nor  the  jurisdiction  of  the 
court. ^  It  has  been  held:  that  bondholders,  who  intervene  in  a 
creditors'  suit,  may  enforce  a  guarantee  of  their  bonds,  although 
the  trustee  of  their  mortgage  is  not  made  a  party. i°  That, 
where  no  collusion  was  charged,  the  jurisdiction  oi  the  court  ir. 
equity  and  its  power  to  appoint  a  receiver  could  not  be  at- 
tacked by  an  intervenor  after  a  receiver's  appointment."  It 
has  been  held  that  he  has  no  right  to  serve  a  new  bill  of  com- 
plaint;  ^^  nor  in  a  foreclosure  suit  to  introduce  collateral  is.sues 
such  as  the  liability  of  other  stockholders  for  non-payment  of 
their  stock, ^^  or  the  liability  of  others  in  connection  with  the 
reorganization ;  ^*  nor,  when  the  intervention  was  granted  after 
a  decree  of  foreclosure,  amend  the  petition,  or  serve  an  answer, 
so  as  to  attack  the  validitv  of  the  mortgage. ^^    The  stockholder, 


7  Eq.  Eule  37.  See  Knickerbocker 
Tr.  Co.  V.  Tarry  town,  W.  P.  &  M. 
Ey,  Co.,  139  App.  Div.  305. 

8  Forbes  v.  Memphis,  El.  P.  & 
Pac.  Ey.  Co.,  2  "Woods,  323,  324. 
See  supra,  §  258. 

9  Horn  v.  Pere  Marquette  E.  E. 
Co.,  151  Fed.  626,  634. 

lOPenn.  Steel  Co.  v.  N.  Y.  City 
Ey.  Co.,  C.  C.  A.,  198  Fed.  721,  753. 

11  Cincinnati  Equipment  Co.  v. 
Degnan,  C.  C.  A.,  184  Fed.  834, 
■where  the  objection  was  not  raised 
in  the  petition  of  intervention,  nor 
until  after  property  had  been  sur- 
rendered to  the  intervenor  under  a 
stipulation. 

Where  an  order  permitting  a  les- 
see to  redeem  from  a  foreclosure 
decree  and  to  be  subrogated  to  the 
rights  of  the  mortgagor  complaint 
was  made  by  the  consent  of  a 
stockholders'  committee,  which  ap- 
peared by  counsel,  and  recited 
that  it  was  without  prejudice 
to  the  right  of  the  mortgagor 
or  its  stockliolders  to  contest  the 
validity  of  the  lease  and  should  not 
determine  such  validity,  but  that  no 
Fed.  Prac.  Vol.  II— l.i 


subsequent  decree  between  the  par- 
ties should  affect  or  impair  the  sub- 
rogation or  the  right  of  the  lessee 
to  collect  the  amount  of  the  decree 
' '  in  the  same  manner  and  with  the 
same  rights  as  the  original  bond- 
holders would  have  had;"  it  was 
held  that,  under  the  provisions  of 
the  order,  the  stockholders  could  not 
intervene  and  attack  the  decree  as 
well  as  the  lease,  because  the  latter 
was  fraudulent,  but  that  they  were 
limited  to  a  proceeding  in  some 
proper  forum  to  hold  the  lessee 
liable  in  damages.  U.  S.  Trust  Co. 
v.  Chicago  Terminal  T.  E.  Co.,  C.  C. 
A.,  188  Fed.  292. 

l2Clauss  v.  Palmer  Un.  Oil  Co., 
213  Fed.  286;  Drew  v.  Clark  & 
Woodin,  N.  Y.  Sup.  Ct.,  Sp.  Tm., 
Greenbaum,  J.,  N.  Y.  L.  J.,  Dec. 
13,  1916. 

13  Fidelity  Tr.  Co.  v.  Elberton  & 
E.  Ey.  Co.,  235  Fed.  1009. 

14  Lisman  v.  Knickerbocker  Tr. 
Co.,  C.  C.  A.,  211  Fed.  413,  423. 

15  First  Tr.  Co.  v.  Illinois  Cent, 
R.  Co.,  C.  C.  A.,  252  Fed.  965. 


1318 


INTERVENTIONS 


[§261 


although  the  holder  of  preferred  stock,  who  has  intervened  in 
a  creditor's  suit  against  a  corporation,  after  insolvency  has 
been  charged  and  admitted  and  a  receiver  appointed,  cannot 
oppose  a  dismissal  of  the  bill  and  a  restoration  of  the  property 
to  tlie  company  which  consents  to  the  same.^^ 

But  where  the  intervenor  has  presented  a  claim  against  prop- 
erty in  the  hands  of  a  receiver  the  original  bill  cannot  be  dis- 
missed until  this  has  been  disposed  of,  on  the  merits,^'  and,  if 
the  property  proves  to  be  worthless,  the  court  may  give  the 
intervenor  relief  against  parties  to  the  suit.** 

§  261.  Rights  of  intervening"  defendants.  Tn  the  absence  of 
fraud  or  collusion,*  an  intervening  defendant  can  ordinarily 
set  lip  no  defense  of  which  the  original  defendant  could  not 
have  availed  itself.^  This  is  so  in  the  case  of  intervening  stock- 
holders,^  and  creditors.*  An  intervenor,  whether  a  stockholder 
or  creditor,  cannot  raise  the  objections:  that  the  court  has  no 
jurisdiction ;  ^  that  the  defendant  corporation,  which  is  a  mort- 
gagor, has  no  legal  existence;^  or,  in  the  case  of  a  creditor's 
bill,  that  the  complainant  has  not  obtained  judgment  and  exe- 
cution returned  unsatisfied ;  '  when  these  have  been  waived  by 
the  original  defendant ;  nor  any  other  defense  which  such  de- 


16  Shaffer  v.  McCulloeh,  C.  C.  A., 
192  Fed.  801. 

17  Weir  V.  McKeehney,  C.  C.  A., 
2.52  Fed.  403. 

18  Ibid. 

§  261.  1  Louisville  Trust  Co.  v. 
Louisville,  New  Albany  &  C.  Ey. 
Co.,  174  U.  S.  674,  43  L.  ed.  li:?0; 
Farmers'  Loan  &  Trust  Co.  v.  To- 
ledo &  S.  H.  R.  Co.,  43  Fed.  223, 
22.5;  Bartlett  v.  Gates,  118  Fed.  06. 

2  Central  Trust  Co.  v.  McGeorge, 
151  U.  S.  129,  38  L.  ed.  98;  Be 
Metropolitan  Railway  Receivership, 
208  IT.  S.  90,  52  L.  ed.  403;  Powell 
V.  Leicester  Mills,  92  Fed.  115. 

3  Central  Trust  Co.  v.  McGeorge, 
151  U.  S.  129,  38  L.  ed.  98;  Dicker- 
man  V.  Northern  Trust  Co.,  176  U. 
S.  181,  188,  44  L.  ed.  423,  429;  Big 
Creek,  G.  C.  &  T.  Co.  v.  Am.  L.  & 
Tr.   Co.,  127  Fed.  02.1,   633;   Forbes 


v.  Memphis,  El  Paso  &  Pac.  Ry.  Co., 
2  Woods,  323;  Fed.  Cas.  No.  4,926; 
Land  Title  &  Tr.  Co.  v.  Asphalt  Co., 
114  Fed.  484. 

4  Central  Tr.  Co.  v.  McGeorge,  151 
U.  S.  129,  38  L.  ed.  98;  Be  Metro- 
politan Railway  Receivership,  208 
U.  S.  90,  52  L.  ed.  403;  Horn  v. 
Pere  Marquette  R.  Co.,  151  Fed. 
625. 

5  Central  Tr.  Co.  v.  McGeorge,  151 
U.  S.  129,  38  L.  ed.  98;  Horn  v. 
Pere  Marquette  R.  Co.,  151  Fed. 
626,  633. 

6  Continental  Tr.  Co.  v.  Toledo, 
St.  L.  &  K.  C.  R.  Co.,  8    Fed.  642. 

7  Be  Metropolitan  Railway  Re- 
ceivership, 208  U.  S.  90,  52  L.  ed. 
403 ;  Horn  v.  Pere  Marquette  R.  Co., 
151  Fed.  626,  633;  Grand  Trunk  Ry. 
Co.  V.  Central  Vt.  Ry.  Co.,  85  Fed. 
87. 


§261] 


RIGHTS    OF    INTEIJVKNINU    DEFENDANTS 


1319 


feiidant  is  estoi)ped  from  interposin.^.*  But  a  lienor,  who  inter- 
venes in  a  foreclosure  suit  can  contest  the  validity  of  bonds 
secured  by  the  mortgage.* 

It  has  been  said:  that  in  a  creditor's  l)ill,  the  intervening 
creditors  are  not  concluded  by  collateral  averments  which  con- 
cede the  validity  of  certain  bonds  and  mortgages  affei'ting  the 
property;  and  tiiat  they  nmy  attack  the  validity  of  the  same.^" 
A  stockholder,  who  has  intervened  as  such  in  a  stockholders' 
suit  and  received  a  dividend,  cannot  subse(|ucnlly  repudiate  his 
subscription  as  obtained  by  framl  and  claim,  as  a  creditor,  a 
priority  over  other  stockholders.^^ 

Under  a  general  creditor's  bill,  any  creditor  wiio  intervenes 
may  attack  the  claim  of  any  other  creditor,^"  except,  perhap.s, 
that  of  the  complainant. ^^  If  the  complainant  prays  a  prefer- 
ence, an  interveiior  nuiy  attack  his  claim. ^*  When  a  creditor's 
suit  has  been  consolidated  with  a  subse(iuent  foreclosure  suit, 
he  can  attack  the  mortgage  or  the  right  of  any  bondholder  to 
share  in  the  proceeds  of  the  sale.^^ 

A  manufacturer,  M'ho  intervened  to  defend  a  patent  case 
brought  against  one  of  his  customers,  was  jiold  to  be  bound  by 


8  Farmers'  L.  &  Tr.  Co.  v.  Chicago 
&  N.  P.  R.  Co.,  68  Fed.  412;  Consol. 
Rubber  Tire  Co.  v.  Finlcy  Rubber 
Tire  Co.,  119  Fed.  705.  But  see 
Hollins  V.  Brierfiolrl  C.  &  I.  Co.,  1.50 
TJ.  S.  371,  379,  37  L.  o.l.  111.;. 

0  Farmers'  Loan  &  Tr.  Co.  v.  To- 
ledo &  S.  H.  R.  Co.,  43  Fed.  22.;, 
225;  Severens,  J.:  "  lu  my  opinion, 
the  court  would  assert  its  dignity 
with  a  needlessly  high  hand  if  it 
rejected  an  application  to  come  in 
and  prevent  the  same  from  being 
the  agent  of  wrong  by  jiersons  a't- 
ing  coUusively  upon  purely  artificial 
reasons."  (Tlie  final  decree  was  re- 
versed upon  another  point  S.  C,  C. 
C.  A.,  51  Fed.  338.) 

10  Continental  Trust  Co.  v.  To- 
ledo, St.  L.  &  K.  C.  R.  Co.,  82  Fed. 
642,  647. 

11  Seminole      Securities      Co.      v. 


Southern  Life  Ins.  Co.,  182  Fed.  85, 
97. 

12  Continental  Tr.  Co.  v.  Toledo. 
St.  L.  &  K.  C.  R.  Co.,  82  Fed.  642, 
647 ;  Shewen  v.  Yanderhorst,  1  Russ. 
&  M.  347;  Owens  v.  Dickerson, 
Craig  &  P.  48,  56;  Woodgate  v. 
Field,  2  Hare,  211,  213;  Graves  v. 
Wriglit,  2   Dru.   &   War.   77,   79. 

13  Continental  Tr.  Co.  v.  Toledo, 
St.  L.  &  K.  C.  R.  Co.,  82  Fed.  642, 
647;  Fuller  v.  Redman,  26  Bcav. 
614;  Briggs  v.  Wilson,  5  De  Gex, 
M.   &   G.   12. 

14  0gilvic  V.  Knox  Ins.  Co..  2 
Black,  539.  17  L.  ed.  .349;  Carter  v. 
New  Orleans,  19  Fed.  659;  Campau 
V.  Detroit  Driving  Club,  130  Mich. 
147. 

15  Continental  Tr.  Co.  v.  Toledo. 
St.  L.  &  K.  C.  Ry.  Co.,  82  Fed.  642, 
647. 


1320 


INTERVENTIONS 


[§  261 


an  estoppel  which  affected  the  origiiial  defendant.i^  ^hen  an 
intervener  wishes  to  avail  himself  of  a  defense  peculiar  to  him 
or  to  assert  his  individual  right  before  a  receiver  has  been  ap- 
pointed or  property  is  in  the  custody  of  the  court,  the  safer 
practice  for  him  is  to  file  a  cross-bill.^''' 


16  Consolidated  Rubber  Tire  Co. 
V.  Finley  Eubber  Tire  Co.,  119  Fed. 
705. 


17  See  Bartlett  v.  Gates,  118  Fed. 
66.    Supra,  §  197. 


CHAPTER  XVm. 

INJUNCTIONS. 

§262.  Definition,  classification,  and  objects  of  injunctions. 
An  injunction  is  a  writ  issued  from  a  court  of  equity  command- 
ing a  person  to  do  an  act  or  acts  other  than  the  payment  to  the 
comphiinant  of  a  sum  of  money,  or  not  to  do  an  act  or  acts 
specified  therein.  According  to  the  different  aspects  from  which 
they  are  considered,  injunctions  are  classified  as  judicial  writs, 
and  writs  remedial;  as  mandatory  and  prohibitory;  as  provi- 
sional and  perpetual ;  or  as  common  and  special.  Before  de- 
scribing the  different  characteristics  of  each  of  these  classes,  it 
may  be  well  to  refer  briefly  to  the  different  occasions  for  the 
issue  of  the  writ.  Injunctions  may  be  obtained  to  enforce  a 
trust  or  other  purely  equitable  right,  to  compel  obedience  to  a 
covenant  or  other  contract  affecting  land,  to  compel  the  obedi- 
ence of  corporations  to. their  charters,  to  prevent  a  multiplicity 
of  suits,  generally  to  prevent  an  irreparable  injury  for  which 
damages  at  law  would  be  no  adequate  remedy,  and  also  in  cases 
in  which  they  are  expressly  authorized  by  statute. 

An  injunction  is  granted  for  the  protection  of  a  right  to 
property.  It  is  not  issued  to  protect  a  right  which  is  purely 
political,!  nor  the  right  to  personal  property ,2  nor  the  right  to 
reputation.^  unless  the  complainant's  property  and  business 
would  be  irreparably  injured  by  the  rights  sought  to  be  re- 
strained. 

Whether  a  Federal  court  of  equity  will  grant  an  injunction 
authorized  by  State  statutes  in  a  ease  not  of  equitable  cog- 
nizance, is  a  disputed  question.* 

§  263.  Injunctions  to  enforce  trusts  and  other  purely  equita- 
ble rights.     Equity  will   always  interfere  to  protect  them  by 

§  262.     1  Mississippi  v.  Johnson,  4  3  Francis  v.  Flynn,  118  U.  S.  38-5, 

Wallaeo   47-5,   18   L.   ed.   4.37,   infra,       .30  L.  ed.  165,  infra,  §  284a. 
§  28.3a.  *See  §  82,  mpra. 

ZBonifaci  v.  Thompson,  252  Fed. 
878,  infra,  §§281,  282. 

1.121 


1322 


INJUNCTIONS 


[§  263 


injunction  when  they  are  threatened  with  infringement. ^  The 
most  usual  examples  of  this  class  of  cases  are  injunctions  to 
prevent  misconduct  by  directors  and  officers  of  corporations.* 
Upon  this  ground  a  court  took  jurisdiction  of  a  suit  by  the 
holders  of  irrigation  bonds :  to  compel  payment  of  coupons  by 
the  district  officers  who  had  collected  assessments  for  the  pay- 
ment of  interest  and  who  contended  that  some  of  the  bonds  had 
been  issued  without  adequate  consideration ;  and  to  decree  that 
the  bonds  were  valid  obligations.* 

On  this  account  an  injunction  may  be  obtained  to  prevent  the 
revelation  or  use  of  a  secret  of  manufacture  by  a  workman  who 
has  learned  it  under  an  express  or  implied  promise  of  secrecy, 
or  one  to  whom  such  a  person  has  disclosed  it ;  *  and  to  restrain 
the  publication  of  loctures,^  manuscripts®  or  works  of  art  "^ 
heard  or  obtained  under  an  express  or  implied  agreement  not 
to  publish  or  reproduce  them.  Whether  or  not  the  publication 
of  private  letters  which  have  no  value  as  literary  productions 
can  be  restrained  at  the  prayer  of  their  writer,  upon  the  ground 
that  this  would  be  a  breach  of  an  implied  trust,  is,  under  the 
autliorities,  an  open  question.* 


§  263.  1  Seott  V.  Becher,  4  Price, 
346;  In  re  Chertsy  Market,  6  Price, 
261;  Sloo  V.  Law,  3  Blatchf.  459; 
Draper  v.  Davis,  104  U.  S.  347,  26 
L.  ed.  783;  Cowles  v.  Whitman,  10 
Conn.  121,  2.'5  Am.  Dec.  60;  Bis- 
pham's  Eq.,   §425. 

2  Granite  Brick  Co.  v.  Titus,  C. 
C.  A.,  203  Fed.  659;  Shera  v.  Car- 
bon Street  Co.,  245  Fed.  589 ;  Monte 
Eieo  Min.  &  Mill.  Co.  v.  Fleming, 
C.  C.  A.,  258  Fed.  106,  108;  infra, 
§264. 

8  Thompson  v.  Emmett  Irr.  Dist., 
C.  C.  A.,  227  Fed.  560. 

4  Yovatt  V.  Winyard,  1  Jae.  & 
Walk.  394;  Morison  v.  Moat,  9 
Hare,  241;  Peabody  v.  Norfolk,  98 
Mass.  452,  96  Am.  Dec.  664;  Vul- 
can Detinning  Co.  v.  Assmann,  185 
App.  Div.  (N.  Y.)  399,  425;  S.  W. 
Scott  Co.  V.  S.  W.  Scott  &  Seott 
Fire  Offices,  186  Aj^p.  Div.  (N.  Y.) 


518;  Union  Switch  and  Signal  Co. 
V.  Sperry,  169  Fed.  926.  See  infra, 
§  281.  But  see  Newbery  v.  James, 
2  Meriv.  446. 

5  Abernethy  v.  Hutchinson,  3  L. 
J.  Ch.  209. 

6  Stapleton  v.  Foreign  V.  Ass  'n, 
12  W.  R.  976;  Scheile  v.  Brakell, 
11  W.  E.  796.  See,  however, 
Southy  V.  Sherwood,  2  Meriv.  435. 

7  Prince  Albert  v.  Strange,  1 
Macn.  &  G.  25,  42. 

SWoolsey  v.  Judd,  4  Duer  (N. 
Y.)  379,  and  Eyre  v.  Higbee,  35 
Barb.  (N.  Y.)  502;  Baker  v.  Lib- 
bie,  210  Mass.  539;  King  v.  King 
(Wyoming,  Nov.  1917)  168  Pac. 
730,  hold  that  they  can,  and  Judge 
Story  concurs  in  this  view.  Fol- 
som  V.  Marsh,  2  Story,  100,  109, 
110;  Story's  Eq.  Jur.,  §§946-948. 
But  the  opposite  view  is  maintained 
in  Gee  v.  Pritchard,  2  Swanst.  402; 


§  264]tO  restrain  corporation's  from   violating  rilARTKRS     1M23 

§264.  Injunctions  to  restrain  corporations  from  violating 
their  charters.  Tlie  charters  of  corporations  are  considered 
in  the  light  of  contracts  made  by  the  legislature  on  behalf  of 
every  person  interested  in  anj'thing  to  be  done  under  them.^ 
On  account  of  the  irreparable  injury  that  would  other  .vise  en- 
sue, and  in  the  case  of  corporations  to  whom  the  State's  right 
of  eminent  domain  is  delegated,  because  they  are  trustees,^  the 
disobedience  of  a  corporation  to  its  charter  may  be  restrained 
by  injunction,  at  the  suit  either  of  the  Attorney-General '  of 
the  State  to  which  it  owes  its  existence,  or  of  any  individual 
who  suffers  special  injury  thereby.* 

This  rule  applies  whetlier  the  act  complained  of  has  been 
forbidden  expressly,  or  merely  by  implication  as  not  included 
within  the  powers  expressly  given  to  the  corporation  and  those 
which  are  necessary  for  their  proper  exercise.*  "It  is,"  said 
Lord  Hatherley,  "a  principle  of  puljlie  policy  that  where  Par- 
liament has  authorized  a  company  to  raise  a  large  capital  for  a 
specified  purpose,  the  privilege  confers  no  right  upon  the  com- 
pany to  employ  their  capital  in  competition  with  the  general 
public  upon  speculations  of  a  different  character."^ 

Injunctions  to  restrain  corporations,  public  "^  and  private,* 
from  wasting  their  fund.s,  belong  to  this  class.  "It  is  because 
these  companies,  ])eing  armed  with  the  power  of  raising  large 
sums  of  money,  if  they  were  allowed  to  apply  their  funds  to 
purposes  other  than  those  for  which  tliey  were  constituted, 
might  acquire  such  a  preponderating  influence  and  command 

Wetinore    v.    Scovell,    3    Edw.    Ch.  Ey.  Co.,  3  Sin.  &  Giff.  283;  Colman 

(N.  Y.)   .515;   Hoyt  v.  Mackenzie,  :!  v.    Eastern    Counties    Ry.    Co..     10 

Barb.    Ch.     (N.    Y.)     320;     Brand-  Beav.  1. 

reth  V.  Lance,  8  Paige  (N.  Y.),  24,  5  Atty.  Gen.  v.  Great  N.  Ry.  Co., 

28,   34  Am.  Dee.  368.  1   Dr.  &  Sni.  1.54. 

§  264.     1  Blakeniore      v.      Glamor-  6  Cited    in    Kerr    on    Injunetions. 

ganshire   Canal   Nav.,   1   Myl.   &   K.  p.  473. 

154,  162.  7Crampton    v.    Zabriskie,    HH    U. 

ZM'Coy  V.  Chicago,  I.,   St.   L.   &  S.  601,  609,  25  L.  ed.   1071,  supra. 

C.  R.  Co.,  13  Fed.  3.  §79;      High     on     Injunctions     (4th 

3  Atty.  Gen.  v.  Great  N.   Ry.  Co.,  ed.)    §§1236-1307. 

1    Dr.    &    Sni.    154;    Atty.    Gen.    v.  8  Smith   v.   Chase   &  Baker   Piano 

Railroad    Cos.,    35    Wis.    425.      But  Mfg.     Co.,     197     Fed.    466;     aiipru. 

see  Atty.  Gen.  v.  Utiea  Ins.   Co.,  2  §145;    High    on    In.iun.-tions,    (4th 

Johns.  Ch.  (N.  Y.)   371.  ed.)    §  1184. 

4  Bostock    V.    North    Staffordshire 


I 


1324 


INJUNCTIONS 


[§264 


over  some  particular  branch  of  trade  or  commerce,  as  would 
enable  them  to  drive  the  ordinary  private  trader  from  the  field, 
and  create  in  their  own  favor  a  practical  monopoly,  whereby 
the  interests  of  the  public  would  be  most  seriously  injured. ' '  * 
When  the  corporation  violates  its  charter  by  refusing  to  per- 
form an  act  thereby  expressly  or  implicitly  commanded,  it  has 
been  held  that  the  Attorney-General  cannot  compel  its  obedience 
by  a  mandatory  injunction,  but  should  in  such  a  case  apply  for 
a  mandamus.^®  A  private  individual  suing  to  enjoin  a  corpo- 
ration from  violating  its  charter  must  show  some  special  dam- 
age caused  to  himself  by  the  breach. ^^  A  shareholder  in  a  com- 
pany is  considered  to  incur  special  damage  by  the  diversion  of  its 
funds  to  other  purposes  than  its  charter  authorizes,  and  can 
obtain  an  injunction  to  restrain  it  from  so  doing,^'^  even,  it  has 
been  held,  if  he  bought  shares  in  the  company  for  the  very 
object  of  preventing  it ;  ^^  provided  that  he  sues  in  good  faith, 
and  does  not  act  as  the  mere  puppet  of  a  rival  corporation ;  ^* 
and  that  the  suit  is  not  brought  against  the  corporation  and 
other  parties,  founded  on  rights  which  may  properly  be  as- 
serted by  the  corporation,  in  which  latter  case  the  right  is  re- 
stricted as  previously  explained.^^  The  holder  of  a  lien  to  secure 
an  indebtedness  of  a  corporation  is  also,  it  seems,  entitled  to  an 
injunction  in  a  similar  case,^^  provided  that  he  shows  that  the 
act  sought  to  be  prevented  will  impair  the  value  of  his  secur- 


9Atty.  Gen.  v.  Great  N.  Ey.  Co., 
1  Dr.  &  Sm.  154,  1.59,  160. 

lOAtty.  Gen.  v.  B.  &  O.  J.  Ey. 
Co.,  15  Jur.  1024;  People  v.  Albany 
&  Vt.  E.  Co.,  24  N.  Y.  261,  82  Am. 
Dec.   295. 

11  Chamberlaine  v.  Chester  &  B. 
Ey.  Co.,  1  Exeh.  869,  877;  Eailroad 
Co.  V.  Ellerman,  105  U.  S.  166,  173, 
174,  26  L.  ed.  1015,  1017,  1018. 

12  Colman  v.  Eastern  Counties 
Ey.  Co.  10  Beav.  1.  Supra,  §145; 
High  on  Injunctions,  (4th  ed.) 
§§  1224-1229. 

13  Colman  v.  Eastern  Counties 
Ey.  Co.,  10  Beav.  1;  Atty.  Gen.  v. 
Great  N.  Ey.  Co.,  1  Dr.  &  Sm.  154; 
Bloxam    v.    Met.    Ey.    Co.,    L.    E.    3 


Ch.  337;  Graselli  Chemical  Co.  v. 
.3i]tna  Explosives  Co.,  Inc.,  C.  C.  A., 
252  Fed.  456.     But  see  supra,  §  145. 

14  Forrest  v.  Manchester,  S.  &  L. 
Ey.  Co.,  4  De  G.,  F.  &  J.  126;  Filder 
v.  London,  B.  &  S.  C.  Ey.  Co.,  1  H. 
&  M.  489;  Eobson  v.  Dodds,  L.  B. 
8  Eq.  301;  Eogers  v.  Oxford,  W.  & 
W.  Ey.  Co.,  2  De.  G.  &  J.  662. 

15  Eq.  Eule  27;  Hawes  v.  Oakland, 
104  U.  S.  450,  26  L.  ed.  827.  See 
supra,  §§  79,  145,  156. 

16  Bagshaw  v.  Eastern  U.  Ey.  Co., 
2  Macn.  &  G.  389;  Herrick  v.  Grand 
T.  Ey.  Co.,  7  Up.  Can.  L.  J.  240; 
Farmers'  Loan  &  Trust  Co.  v.  City 
of  Sioux  Falls,  131  Fed.  890. 


^  264]  TO  RESTRAIN  CORPORATIONS  FROM   VluLATINO   CHARTERS      1^2.") 

ity ;  1'^  but  not  otherwise.^^  j^  j^as  been  held  that  such  a  bond- 
holder need  not  show  that  the  corporation  is  not  in  collusion. 
An  unsecured  creditor  cannot  bring  such  a  suit,*®  except  under 
very  extraordinary  cii-cumstances.^® 

A  suit  may  be  brought  by  stockholders  to  prevent  a  consolida- 
tion or  combination  which  is  in  violation  of  the  Federal  Anti 
Trust  Law;  21  but  not  when  the  proceedings  sought  to  be  en- 
joined will  not  make  any  practical  change  in  the  status  quo 
which  has  existed  for  a  number  of  years  with  the  government's 
acquiescence.^^  Nor  it  has  been  said  in  the  case  of  a  State  Anti 
Trust  Law  where  the  stockholder  shows  no  special  injury.^^ 

One  whose  land  has  been  taken  from  him  for  the  use  of  a  cor- 
poration by  the  exercise  of  the  State's  right  of  eminent  domain 
can  obtain  an  injunction  to  restrain  the  use  of  the  land  for  any 
other  purpose  than  is  allowed  by  the  company's  charter,^*  pro- 
vided at  least  that  he  can  show  that  he  is  thereby  injured.^^ 
Citizens  lawfully  engaged  in  the  sale  of  liquor  within  a  State 
were  granted  an  injunction  forbidding  a  foreign  corporation  for 
accepting  for  transportation  thither  liquors  illegally  sold  to  buy- 
ers who  competed  with  the  complainants.^^ 

An  English  judge  has  said:  "Where  a  statute  prohibits  the 
doing  of  a  particular  act  aflFecting  the  public,  no  person  has  a 
right  of  action  against  another  merely  because  he  has  done  the 
prohibited  act.  It  is  incumbent  on  the  party  complaining  to 
allege  and  prove,  that  the  doing  of  the  act  prohibited  has  caused 
him  some  special  damage,  some  peculiar  injury,  beyond  that 
which  he  may  be  supposed  to  sustain  in  common  with  the  rest 
of  the  Queen's  subjects,  by  an  infringement  of  the  law.     But 


17  Central  Trust  Co.  v.  Denver  & 
Ti.  G.  Co.,  219  Fed.  110. 

18  Mercantile  T.  Co.  v.  Texas  & 
P.  Ry.  Co.,  51  Fed.  529,  536. 

19Syers  v.  Brighton  B.  Co.,  11  L. 
T.  (N.S.)  560;  Mills  v.  Northern 
Ry.  of  Buenos  Ayres  Co.,  23  L.  T. 
(N.S.)   719. 

20  Evans  v.  Coventry,  5  Be  G.,  M. 
&  G.  911. 

21  De  Koven  v.  Lake  Shore  &  M. 
S.  Ry.  Co.,  216  Fed.  955. 

82  Ibid. 


23  Continental  Securities  Co.  v. 
Interborough  R.  T.  Co.,  207  Fed. 
467. 

24Bostoek  v.  North  S.  Ry.  Co.,  3 
Sni.   &   Giff.   283. 

25  East  &  W.  India  Docks  &  B. 
J.  Ry.  Co.  V.  Dawes.  11  Hare,  363; 
Lee  V.  Milner,  2  Y.  &  C.  611 ;  Ware 
V.  Regents  Canal  Co.,  3  De-G.  & 
.1.  212. 

26  Long  V.  Southern  Express  Co., 
201  Fed.  441. 


1326  INJUNCTIONS  [§  264a 

where  the  act  prohibited  is  obviously  prohibited  for  the  pro- 
tection of  a  particular  party,  there  it  is  not  necessary  to  allege 
special  damage. "  ^"^  It  is  no  proper  ground  for  complaint  by 
an  individual  that  a  corporation  by  exercising  powers  not  con- 
ferred upon  it  by  its  charter  enters  into  competition  with  him, 
and  thereby  diminishes  the  profits  of  his  trade  or  calling.^* 

In  the  absence  of  statutory  authority  a  private  individual 
cannot  file  a  bill  to  obtain  the  forfeiture  of  a  corporate  fran- 
chise,^^  nor  a  stockholder  a  bill  to  dissolve  a  corporation  under 
the  statute  of  the  country  which  chartered  it.^"  Nor  in  the 
absence  of  a  State  ^i  or  Federal  ^^  Statute,  can  a  bill  for  the 
dissolution  of  a  State  corporation  be  maintained.^'  A  Federal 
court  sustained  a  bill  to  set  aside  an  executed  contract  for  the 
dissolution  of  a  partnership  and  the  transfer  of  the  assets  to  a 
corporation  which  had  been  organized  in  pursuance  of  the 
contract.'* 

Where  the  assets  of  the  corporation  are  in  the  custody  of  a 
receiver,  the  court  which  appointed  him  may  enjoin  action 
at  a  stockholder's  meeting  upon  a  plan  of  reorganization.'*  It 
seems  that  in  an  extraordinary  case  a  decree  might  be  entered 
directing  the  inspection  of  the  books  of  a  corporation  by  a  stock- 
holder.'^ 

§  264a.  Injunctions  to  protect  corporate  franchises.  Injunc- 
tions to  protect  corporate  franchises  may  be  conveniently  here 

27  Pollock,  C.  B.  in  Chamberlaine  Federal    Court).     Contra   Conklin   v 

V.    Chester    &    B.    Ey.    Co.,    1    Ex-  U.   S.  Ship  Building  Co.,  140  Fed. 

chequer,    869,    877.      See   Blakemore  219  (holding  that  such  statute  could 

V.    Glamorganshire    Canal    Nav.,    1  not    be     followed     by    the     Federal 

Mylne  &  Keen,  154,  162.  Court). 

28EaiIroad    Co.   v.    Ellerman,    10.5  32  See   Northern   Securities  Co.  v. 

IT.  S.  166,  17.-?,  174,  26  L.  ed.  1015,  U.  S.,  193  U.  S.,  197,  48  L.  ed.  679. 

1017,  1018.    But  see  Brady  v.  South  33  Conklin  v.  U.  S.  Ship  Building 

Shore  Traction  Co.,  197  Fed.  669.  Co.,  140   Fed.   219. 

29  Gaylord  v.  Fort  Wayne  M.  &  C.  34  Tevander  v.  Euysdael,  C.  C.  A., 
E.  Co.,  6  Biss.  286.  253  Fed.  918. 

30  Eepublican  Silver  Mine  v.  35  Graselli  Chem.  Co.  v.  Aetna  Ex- 
Brown,  24  L.E.A.  776,  58  Fed.  644.  plosives  Co.,  Inc.,  C.  C.  A.,  252  Fed. 

31  Jacob  V.  Mexican  Sugar  Co.,  130  456. 

Fed.    589,     592     (where    the     court  36  Guthrie  v.  Harkness,  199  U.  S. 

said   that  the  New  Jersey   Statute,  148,  26  Sup.  Ct.  4,  50  L.  ed.  130,  4 

authorizing  a  dissolution  of  the  cor-  Ann.  Cas.  433;   Monte  Eieo  Min.  & 

poration     by    the     State     Court     of  Mill.  Co.  v.  Fleming,  C.   C.  A.,  258 

Chancery  might  be  followed  by  the  Fed.  106,  108. 


§  264a  J        TO  PROTECT  CORPORATE  FRANCHISES  1327 

considered.  Thej'  are  usually  justified  by  the  desire  of  equity 
to  prevent  a  multiplicity  of  suits.  In  some  cases  they  are  granted 
to  prevent  irreparable  injury.  Corporate  franchises  are  us- 
ually attacked  by  attempts  to  repeal  them  or  by  imposing  con- 
ditions upon  their  exercise.  Jn  the  latter  case,  ordinarily  by 
reductions  in  the  charges  they  are  authorized  to  make  to 
the  public  for  the  services  which  they  render,  technically  de- 
scribed as  rates.  Unless  a  reservation  is  contained  in  its  charter 
or  in  a  previous  general  statute  or  in  an  ordinance  in  the  State 
Constitution,!  the  charter  of  a  corporation  cannot  be  amended 
or  repealed  without  its  consent.^  Such  reservations  of  power 
in  their  legislatures  are  now  contained  in  the  Constitutions  or 
general  statutes  of  all  or  almost  all  the  States  of  the  Tnion. 

Litigation  upon  this  subject  ordinarily  arises  in  connection 
with  the  attempts  by  municipalities  to  repeal  franchises  to  op- 
erate street  railroads,  to  furnish  gas  and  electric  light,  power, 
water,  or  telephone  service,  or  to  reduce  the  charges  to  the  public 
made  by  the  holders  of  such  a  franchise. 

No  injunction  will  be  granted  to  restrain  the  enactment  of  a 
statute  by  Congress  or  a  State  Legislature,  for  this  is  beyond 
the  power  of  the  courts,  and  a  judge  who  signed  the  same  would 
be  in  contempt  of  the  legislative  body  with  which  he  interfered.^ 
Since  municipal  ordinances  within  the  power  vested  in  munici- 
palities have  the  force  of  laws  passed  by  the  State  legislatures, 
except  perhaps  under  very  extraordinary  circumstances,  no  in- 
junction can  be  issued  to  enjoin  the  passage  of  a  municipal 
ordinance  which  affects  a  franchise.* 

Injunctions  have  been  issued  to  restrain  the  enforcement  of 
such  ordinances  immediately  upon  the  adoption  of  the  latter  and 
before  any  threat  to  enforce  them  was  made ;  ^  but  a  court  re- 
fused to  interfere  where  the  only  action  by  a  municipality  of 
which  complaint  was  made  consi.sted  in  the  adoption  by  the  City 

§264a.     1  Miller  v.  New  York,  !.">  4  New  Orleans  Waterworks  Co.  v. 

Wall.  478,  21  L.  ed.  78;  Greenwood  New  Orleans,  164  U.  S.  471,  481,  41 

V.  Union  Freight  R.  R.  Co.,  10.5  U.  L.   ed.   518;    Murphy   v.   East   Port- 

S.  13,  26  L.  ed.  6,  961.  land,  42  Fed.  308;   De.sMoines  Gas 

8  Dartmouth    College   v.   Woodard,  Co.    v.    Des    Moines,    44    Iowa    505, 

4  Wheaton  518,  4  L.  ed.  629.  infra,   §  271a. 

3  See  Foster  on  the  Constitution,  6  Portland    Ry.    Light    &    Power 

§  145,     and     legislative     precedents  Co.   v.   City  of   Portland,   201   Fed. 

there  cited.  119- 


1328  INJUNCTIONS  [§  264a 

Council  of  a  report  of  a  committee  finding  that  a  street  railway 
franchise  would  expire  at  a  certain  time  contrary  to  the  conten- 
tion of  the  company  owning  this  and  recommending  that  the 
Council  take  measures  to  dispossess  the  corporation  upon  such 
expiration  unless  there  should  be  a  previous  renewal.^  In  the 
same  litigation  where  in  addition  to  these  facts  it  also  ap- 
peared that  the  receivers  of  the  corporation  had  received  a  notice 
from  the  Superintendent  of  Streets  that  all  permits  authorizing 
the  company  to  work  and  make  repairs  upon  the  streets  would 
be  revoked  at  a  specified  time,  the  Supreme  Court  in  order  to 
remove  the  cloud  upon  the  title  to  the  franchises  decreed  that 
they  existed  for  a  longer  period  and  enjoined  the  city  from 
asserting  that  they  had  expired  at  the  time  stated  in  the  report 
and   from   interfering  with   the   enjoj'ment   of   the   franchise.' 

Speaking  of  the  remedies  of  public  service  corporations,  it  has 
been  said :  "It  is  the  universal  practice,  sustained  by  authority, 
that  the  only  mode  of  judicial  relief  ^gainst  unreasonable  rates 
is  by  suit  against  the  Governmental  authority  which  establish 
them  or  is  charged  with  the  duty  of  enforcing  them. ' '  ^ 

When  the  ordinance  was  passed  in  accordance  with  the  legal 
forms  and  under  color  of  statutory  authority  even  though  the 
same  is  not  authorized  by  the  statutes  of  the  State,  or,  it  has 
been  held,  where  its  validity  depends  upon  a  statute,  which  the 
complainant  contends  in  good  faith  to  be  in  violation  of  the 
Federal  Constitution,  and  there  is  ground  for  a  reasonable  doubt 
as  to  the  soundness  of  the  contention ;  the  suit  arises  under  the 
Constitution  of  the  United  States  and  is  for  that  reason  within 
the  jurisdiction  of  the  Federal  court.^  The  Federal  courts  have 
no  jurisdiction  except  when  the  necessary  diversity  of  citizen- 
ship exists  to  enjoin  the  enforcement  of  a  municipal  ordinance 
not  passed  in  accordance  with  legislative  authority, i**  nor  to  re- 
strain trespasses  which  impair  the  value  of  a  franchise  com- 
mitted by  public  officers  or  agents  professedly  acting  under  au- 
thority of  a  State  law  but  which  are  by  a  fair  construction  of  the 

6  Elkins  v.  Chicago,  119  Fed.  957.  L.  ed.   341 ;    Mercantile  Trust  &  D. 

7  Blair  v.  Chicago,  201  U.  S.  401,  Co.  v.  Columbus,  203  U.  S.  311,  51 
407,  449.  L.  ed.  198,  supra,  §  25. 

8  Ee  Englehard  &  Sons  Co.,  231  10  Mayor,  etc.,  of  Savannah  v. 
IT.  S.   646,  651,  per  McKenna,  J.  Hoist,  C.  C.  A.,  132  Fed,  901,  supra, 

9  Walla     Walla     City     v.     Walla  §25. 
Walla  Water   Co.,   172   U.   S.   1,  43 


264a] 


TO    PROTECT    CORPORATE    FRANCHISES 


1329 


law  prohibited ;  unless  the  conduct  of  which  complaint  is  made 
amounts  to  a  destruction  of  property  without  due  process  of 
law.^^  A  suit  may  be  brought  to  enjoin  the  enforcement  of  an 
ordinance  which  impairs  the  violation  of  a  contract  without  wait- 
ing until  proceedings  are  instituted  for  such  enforcement.^^  A 
suit  to  enjoin  interference  with  a  franchise  may  be  brought  by 
the  corporation  itself ;  ^^  by  its  receivers ;  ^*  under  special  circum- 
stances, by  its  stockholders ;  ^^  or  by  its  mortgagee.^®  When  the 
object  of  the  suit  is  to  enjoin  the  enforcement  of  an  unconstitu- 
tional statute  or  ordinance  the  State  and  local  officers  charged 
with  its  enforcement  may  be  made  parties  defendant.*' 

A  city  may  be  a  party  defendant  to  represent  its  citizens 
who  are  customers  of  the  complainant.*^  Injunctions  have 
been  issued  forbidding  the  customers  of  the  complainants  from 
bringing  suits  founded  upon  the  ordinance  enjoined,*®  but  unless 
these  are  made  parties  and  served  so  that  thoy  have  their  day 
in  court,  such  an  injunction  would  as  against  them  be  void,  as 
not  due  process  of  the  law.  The  Clayton  Law  now  expressly 
forbids  an  injunction  against  a  person  not  a  party  to  the  suit.''" 
It  had  been  previously  held  that  the  Federal  courts  have  no 
power  to  enjoin  customers  of  a  public  service  corporation  from 
suing  in  the  State  courts  to  collect  excessive  charges  for  public 
service  which  they  have  paid  pending  an  injunction,  reversed 
by  the  Supreme  Court  of  the  United  States,  which  prevented 
the    proper    authority    from    compelling    a    reduction    of    such 


11  Barney  v.  New  York,  193  U.  S. 
430,  48  L.  ed.  737,  sitpra,  §  25. 

12  Portland  Ry.  Light  &  Power 
Co.  V.  City  of  Portland,  201  Fed. 
119. 

13  Walla  Walla  City  v.  Walla 
Walla  Water  Co.,  172  U.  S.  1,  43 
L.  ed.  341. 

14  Blair  v.  Chicago,  201  U.  S.  400, 
405,  449,  50  L.  ed.  801,  821. 

15  Smyth  v.  Ames,  169  U.  S.  466, 
42  L.  ed.  810;  Dinsmore  v.  South- 
ern Exp.   Co.,   92   Fed.   714. 

16  R<?agan  v.  Farmers'  Loan  & 
Trust  Co.,  154  U.  S.  362,  38  L.  ed. 
1014;  Mercantile  Trust  Co.  v.  Texas 
&  P.  Ry.  Co.,  51  Fed.  529,  .535;  City 


&    County    of    Denver    v.   N.    Y.    Tr. 
Co.,  C.  C.  A.,  187  Fed.  890. 

17  Smyth  v.  Aines,  169  U.  S.  466, 
42  L.  ed.  810,  supra,  §  100c. 

18i?e  Englehard  &  Sons  Co.,  231 
U.  S.  646,  San  Francisco  Gas  & 
Elec.  Co.  V.  City  &  County  of  San 
Francisco,  164  Fed.  884.  887. 

19  San  Francisco  Gas  &  El.  Co.  v. 
City  &  County  of  San  Francisco,  164 
Fed.  884,  887;  see  Bellaney  v.  St. 
Louis  L.  M.  &  S.  R.  Co.,  C.  C.  A,, 
220  Fed.  876,  reversing  211  Fed. 
172. 

■  20  'AS  St.  at  L.  7;!8,  cli.  323,  Comp. 
St.   §  1243c,  »uprn,   §  19. 


1330  INJUNCTIONS  [§  264a 

charges.^^  Accordingly,  it  has  been  held  when  such  an  injunc- 
tion by  the  Federal  court  to  a  suit  which  the  municipality  was 
a  part.y  had  restrained  the  enforcement  of  a  State  statute  re- 
ducing the  price  of  gas  pending  an  adjudication  covering  its 
validity ;  that  this  did  not  deprive  the  State  courts  of  power  to 
resti'ain  the  gas  company  from  cutting  off  the  supply  of  gas 
to  a  consumer  for  his  refusal  to  pay  more  than  the  reduced 
rate.^2  But  in  order  to  observe  comity  the  State  court  will 
usually  stay  the  trial  of  such  a  case  until  the  termination  in 
the  Federal  court  of  the  issues  there  raised.^^ 

When  a  suit  to  test  the  validity  of  the  statute  or  ordinance 
has  been  previously  brought  in  a  State  court,  the  Federal  court 
cainiot  grant  an  injunction  until  the  final  determination  of  the 
State  suit.2*  Before  this  rule  had  been  established  by  statute 
it  had  been  adopted  hy  a  rule  of  comity  by  some  Federal  eourts.^^ 
Where  bills  to  enjoin  the  enforcement  of  the  State  law  had  been 
previously  presented  to  the  Federal  court  subsequent  suits  in  the 
State  courts  by  the  defendant  were  enjoined. ^^  But,  it  was  held : 
that  the  pendency  in  the  Federal  court  of  a  suit  by  a  gas  com- 
pany against  a  city  to  set  aside,  as  an  impairment  of  the  eon- 
tract  contained  in  the  company's  franchise,  an  ordinance  regu- 
lating the  pressure  in  its  mains,  did  not  justify  an  injunction 
against  a  subsequent  suit  by  the  city  against  the  company  in  a 
State  court  for  an  accounting  under  the  original  ordinance 
granting  the  franchise  upon  the  ground  that  the  contract  rates 
were  excessive  because  of  insufficient  pressure  although  the  bill 
prayed  an  injunction  against  the  further  collection  of  such 
rates.^' 

In  suits  to  enjoin  the  enforcement  of  statutes,  orders,  or  ordi- 
nances reducing  the  rates  charged  for  public  service,  it  is  cus- 
tomary not  to  grant  a  preliminary  injunction  forbidding  the 
institution  by  the  defendants  of  suits  in  State  courts  or  else- 
where to  enforce  the  order  or  ordinances  of  which  complaint  is 

21  Bc41ainey  v.  St.  Louis  L.  M.  S.  25  Morse  &  Co.   v.  McCarthy,  191 

Ry.  Co.,  C.  C.  A.,  220  Fed.  876.  Fed.  202;  Peoples  Gas  Light  &  Coke 

22  Ritehnian    v.    Consol.    Gas    Co.,  Co.  v.  City  of  Chicago,  192  Fed.  398. 

186  N.  Y.  209.  See   §  57,  supra. 

23  Ibid.  26  St.    Louis    &    L.    F.    R.    Co.    v. 

24  36   St.   at   L.   5.57,  11G2,   ;!7  St.  Handly,   155   Fed.   220. 

at   L.    1013,    Comp.    St.    §  1243,    see  27  Kansas  City  Gas  Co.  v.  Kansas 

§  105d,  supra.  City,  178  Fed.  500.' 


§265] 


TO    ENFORCE   SPECIFIC    I'EHFoRMANCE 


1331 


made ;  except  upon  the  condition  that  the  ditference  between  the 
former  rate  and  tliat  the  enforcement  of  wliich  is  restrained  be 
deposited  in  court  or  a  trust  company  subject  to  the  court's 
ordcr.^' 

If  the  suit  is  brought  by  a  mortgagee  or  bondhoUicr  tiie  com- 
plaint should  show  that  the  ad  sought  to  be  i)revented  will 
impair  the  value  of  the  security. ^^  It  is  no  defense  that  the  cor- 
poration is  in  sympatliy  with  thf^  cotnplainants.^o  The  mortsasror 
is  not  an  indispensable  party. ^^ 

§265.  Injunctions  to  enforce  the  specific  performance  of 
covenants  and  other  contracts  affecting-  land.  As  no  two  pieces 
of  land  are  exactly  alike,  ecpiity  considers  that  in  no  case  can 
damages  in  money  be  adequate  compensation  for  the  breach  of  a 
covenant  or  other  contract  affecting  land.^  Accordingly,  the 
specific  performance  of  contracts  for  the  purchase  or  sale  of  land 
and  of  covenants  affecting  the  same,  will  be  specifically  enforced 
with  the  aid  of  an  injunction,  whenever  they  are  mutual,^  cer- 
tain,3  not  unconscionable,*  and  their  enforcement  would  be  prac- 
ticable.^ The  rule  concerning  the  enforcement  of  covenants  af- 
fecting land  has  been  thus  stated:  "If  the  construction  of  the 
instrument  be  clear  and  the  breach  clear,  then  it  is  not  a  ques- 
tion of  damage,  but  the  mere  circumstance  of  the  breach  of  cove- 
nant affords  sufficient  ground  for  the  court  to  interfere  by  in- 


28  See   infra,   §  297. 

29  Mercantile  Tr.  Co.  v.  Texas  & 
P  Ry.  Co.,  51  Fed.  529,  536;  Cen- 
tral Tr.  Co.  V.  Denver  &  R.  S.  Co., 
219  Fed.  110. 

30  Smyth  v.  Ames,  169  V.  S.  466, 
42  L.  cd.  819;  Dinsmore  v.  South- 
ern Express  Co.,  92  Fed.  714; 
City  &  County  of  Denver  v.  N. 
Y.  Trust  Co.,  C.  C.  A.,  187  Fe.l.  890; 
Knickerliocker  Tr.  Co.  v.  City  of 
Kalamazoo,  182  Fed.  865;  City 
and  County  of  Denver  v.  N.  Y.  Tr. 
Co.,  C.  C.  A.,  187  Fed.  890. 

31  Denver  v.  Mercantile  Trust  Co., 
C.  C.  A.,  201  Fed.  790.  But  see 
Consol.  Water  Co.  v.  City  of  San 
Diego,  89  Fed.  272;  .s.  c,  C.  C.  A., 
9:!  Fed.  849.     Supro,  §  119. 

§  265.     1  Adderley     v.     Dixon,     1 


Sim.    &    Stu.    607;    Bispham's    Eq., 
§  .S75. 

2  Dorsey  v.  Packwood,  12  Iluw. 
126,  13  L.  ed.  921;  Bispham's  Eq., 
§  377. 

3  Colson  v.  Thompson,  2  Wheat. 
336,  4  L.  ed.  2";3 ;  Bispham's  £(]., 
§  377. 

4Suryot  v.  Bycrs,  Hempst.  715; 
Kdiindtree  v.  McLain,  Hempst.  245; 
Miss.  &  Mo.  R.  Co.  v.  Cromwell,  91 
V.  S.  643,  23  L.  ed.  367;  Bispham's 
Eq.,  §  376.  See  Randolph  's  Ex  'r  v. 
Quidnick  Co.,  135  U.  S.  457,  34  L. 
ed.  200. 

6  Ross  V.  T^nion  Pac.  R.  Co.,  1 
Woolw.  26;  Fallon  v.  Railroad  Co., 
1  Dill.  121;  Texas  &  Pac.  Ry.  Co. 
V.  Marshall,  136  U.  S.  393,  34  L.  ed. 
385;  Bispham's  Eq.,  §377. 


1332 


INJUNCTIONS 


[§266 


junction.  "^  This  is,  however,  subject  to  the  exception  that  if  it 
would  be  against  public  policy  to  enforce  the  covenant, — for 
example,  if  a  change  of  circumstances  has  rendered  it  improper 
to  use  land  in  accordance  with  the  terms  of  a  covenant  regulat- 
ing its  use, — or  if,  on  account  of  such  a  change,  the  object  of  the 
parties  to  the  covenant  would  not  be  accomplished  by  its  enforce- 
ment, equity  will  not  interfere.'  The  Federal  courts  have  re- 
fused injunctions :  against  interference  by  a  railroad  company 
with  telegraph  lines  constrncted  on  the  defendant's  right  of 
way  under  a  license  which  had  been  revoked  where  the  com- 
plainant sought  relief  because  the  government  had  assumed  con- 
trol of  the  railroads ;  when  the  defendant  agreed  to  take  no  action 
interfering  with  the  telegraph  system  without  the  approval  of  the 
government,*  and  against  the  obstruction  bj^  the  railroad  com- 
pany of  the  telegraph  company's  use  of  the  right  of  way  of 
which  it  was  in  possession  pending  an  application  to  condemn 
the  right  to  maintain  its  line  there. ^ 

§  266.  Injunctions  to  prevent  a  multiplicity  of  suits.  Injunc- 
tions are  granted  in  order  to  prevent  a  multiplicity  of  suits 
under  bills  of  peace.  Bills  of  peace  are  bills  to  restrain  a 
number  of  persons  from  endeavoring  to  enforce  in  different 
suits  the  same  or  similar  claims ;  ^  or  to  prevent  a  single  person 
from  reiterating  in  several  successive  suits  the  same  unsuccess- 
ful claim ;  2  or  to  prevent  a  person  from  levying  a  tax,  the  pay- 
ment of  which  will  subject  the  plaintiff  to  the  hazard  of  a  num- 
ber of  suits  from  other  parties  ;  ^  bills  of  interpleader  *  and  in 


6V.  C.  Wood  in  Tipping  v.  Eck- 
ersley,  2  K.  &  .J.  264.  See  also  Lord 
Manners  v.  Johnson,  L.  E.  1  Ch.  D. 
67.3;  Lloyd  v.  London,  C.  &  D.  Ey. 
Co.,  2  De  G.,  J.  &  S.  568;  T.  of 
Columbia  College  v.  Lynch,  70  N. 
Y.  404.  See  High  on  Injunctions, 
(4th  ed.)    §  330. 

7  Duke  of  Bedford  v.  British  Mu- 
seum, 2  M.  &  K.  552;  Troy  &  B. 
E.  Co.  V.  Boston,  H.  T.  &  W.  Ey. 
Co.,  86  N.  Y.  107;  Columbia  College 
V.  Thaeher,  87  N.  Y.  311,  41  Am. 
Eep.  365 ;  Leake 's  Digest  of  the  Law 
of  Contracts,  1152.  But  see  Lloyd 
V.  London,  Ch.  &  D.  Ry.  Co.,  11 
Jur.   (N.  S.)    380. 

8  Louisville  &  N.  E.  Co.  v.  Western 


Union  Tel.  Co.,  C.  C.  A.,  252  Fed.  29. 

9  Western  Union  Tel.  Co.  v.  Louis- 
ville &  N.  E.  Co.,  C.  C.  A.,  250  Fed. 
199;   s.  c,  243  Fed.  687. 

§  266.  1  Sheffield  Water  Works 
V.  Yeomans,  L.  E.  2  Ch.  App.  8. 
See  Scottish  Union,  etc.,  Ins.  Co.  v. 
J.  H.  Hohlmann  &  Co.,  73  Fed.  66; 
fiiipra,  §§  140,  141.  But  see  Kansas 
City  Southern  Ry.  Co.  v.  Quigley, 
181  Fed.  190. 

2  Earl  of  Bath  v.  Sherwin,  4 
Brown  Parliamentary  Cases,  373. 
But  see  United  Cigarette  Maeh.  Co. 
V  Winston  Cigarette  Maeh.  Co.,  C. 
C.  A.,  194  Fed.  947. 

3  Cummings  v.  National  Bank, 
101   U.   S.   153,   157,  25  L.   ed.  903, 


§267] 


TO    PREVENT    IRREPARABLE    INJURY 


r.i-.i-.i 


the  nature  of  interpleader;*  bills  to  enjoin  a  continuing  tres- 
pas.s,^  nuisance,''^  infringement  of  patents,^  copyrights^  and 
trade-marks ;  ^^  and  bills  to  (juiet  possession. ^^  Injunctions  to 
restrain  a  continuing  trespass,  nuisance  and  the  infringement 
of  patents,  copyrights  and  trade-marks,  are  more  often  said  to 
be  granted  to  prevent  irreparable  injury,  and  will,  therefore, 
be  considered  under  that  head.  An  injunction  to  quiet  the  pos- 
session before  the  hearing  formerly  issued  to  restrain  the 
party  to  whom  it  was  directed  from  taking  forcible  possession  of 
lands  pending  litigation  concerning  them.  It  was  issued  at  the 
request  of  either  a  plaiiitiflt'  or  a  defendant  to  a  suit,  if  the  ap- 
plicant had  had  ])eaceable  possession  of  the  premises  for  the 
three  years  preceding  the  filing  of  the  bill,  and  his  interest 
therein  had  not  been  determined  by  forfeiture,  surrender,  or 
other  lawful  means.  He  was  required  to  swear  to  these  facts 
in  his  bill,  and  according  to  the  practice  before  Lord  Bacon's 
time  to  give  a  bond  to  the  amount  of  £10  as  a  security  that  the 
information  so  given  was  true.^^  gnch  injunctions  were  for- 
merly very  common ;  but  have  now  fallen  into  disuse.  The  last 
reported  instance  was  in  Lord  Ilardwicke's  time.^' 

§  267.  Injunctions  to  prevent  irreparable  injury  for  w^hich 
the  remedy  at  law  is  inadequate;  in  general.  The  most  ordi- 
nary ground  upon  which  an  injunction  issues,  and  the  one,  in- 
deed, which  includes  all  but  the  first  of  those  previously  men- 
tioned, is  that,  otherwise,  the  plaintilT  would  sulfer  an  irrep- 
arable injury,  for  which  damages  at  law  Avould  be  no  adequate 
remedy.  It  would  be  impossible  specifically  to  mention  here 
all  the  different  instances  in  which  an  injunction  issues  for  this 


904;  Pelton  v.  National  Bauk,  101 
U.  S.  143,  148,  2;"5  L.  ed.  901,  902; 
Hills  V.  Exchange  Bank,  105  U.  S. 
319,    26    L.    ed.    10.52;    supra,    §79. 

4  Louisiana  State  Lottery  Co.  v. 
Clark,  16  Fed.  30;  s.  c,  4  Woods, 
169;  McLaughlin  v.  Swann,  18  How. 
217,  15  L.  ed.  357;  City  Bank  v. 
Skelton,  2  Blatehf.  14;  mtpra,  §157. 

SDorn  v.  Tox,  61  N.  Y.  264; 
supra,  §  158. 

6  Northern  Pac.  R.  Co.  v.  Burling- 
ton &  Missouri  R.  Co.,  2  McCrary, 
203;   wfra,  §275. 


7  Woodruff  V.  North  Bloomfield  G. 
M.  Co.,  18  Fed.  753.  See  infra, 
§274. 

8  r.  S.  R.  S.,  §  4921 ;  supra,  §  277. 

9  r.  S.  R.  S.,  §  4970;  suina,  §  146; 
infra,  §  278. 

10  Shaw  Stocking  Co.  v.  Mack,  12 
Fed.  707;  .sw/im,  §148,  infra.  S  279. 

11  Hughes  V.  Morden  College,  1 
Ves.  Sen.  188.     See  supra,  §  82. 

12  Eden  on  Injunctions,  ch.  xvi, 
1>.  240. 

13  Hughes  V.  Morden  College,  1 
Ves.  Sen.  188. 


1334  INJUNCTIONS  [§268 

reason;  but  the  following  is  an  enumeration  of  those  of  more 
frequent  occurrence  which  have  not  been  previously  described. 
An  injunction  will  issue  on  account  of  the  inadequacy  of  the 
remedy  at  common  law;   to  stay  proceedings   in  other  courts, 
either  of  law,   equity,  or  admiralty ;  ^  to  restrain  the  indorse- 
ment or  negotiation  of  notes  and  bills  of  exchange,  the  sale  of 
land,  the  sailing  of  a  ship,  the  transfer  of  stock,  or  the  aliena- 
tion of  a  specified  chattel ;  ^  to  restrain  the  commission  of  every 
species  of  waste  or  act  in  the  nature  of  waste ;  ^  to  suppress  the 
continuance   of   a   public   or   private   nuisance ;  *  to  prevent  a 
threatened  destructive  trespass ;  ^  to  prevent  the  infringement 
of  patents ;  ^  to  prevent  the  violation  of  copyright,  whether  by 
printed  publications,  or  theatrical  representation,  or  otherwise;"'^ 
to  prevent  the  unauthorized  use  of  trade-marks,^  and  the  open- 
ing of  private  letters ;  ^  to  compel  the  performance  or  prevent  the 
breach  of  contracts  other  than  those  for  the  payment  of  money 
only ;  ^®  under  very  extraordinary  circumstances,  to  compel  the 
delivery  of  personal  property  wrongfully  Avithheld,^^  to  enjoin 
the  revocation  of  a  license  permitting  a  foreign  corporation  to  do 
business  within  the  State.^^    An  injunction  has  been  granted  to 
restrain  the  sale  by  scalpers  of  return  railroad  tickets,  which  by 
their  terms  were  not  transferable,  when  the  use  of  such  tickets 
could  only  be  made  b}'  fraud ;  *'  and  to  prevent  the  creation  of 
a  cloud  on  a  title.^* 

§  268.  Injunctions  to  stay  proceedings  in  other  courts.  In 
general.  Injunctions  to  stay  proceedings  in  other  courts  are 
of  much  less  frequent  occurrence  now  that  discovery  and  the  in- 
spection of  documents  can  be  obtained  at  common  law  without 
the  aid  of  equity  than  they  were  formerly;  but  they  are  still 

§267.     1  §§  268,  271.                                    H  §  282. 

2  §  272.  12  Ludwig  v.   Western  Union   Tel. 

3  §  273.  Co.,  216  U.  S.  146,  152. 

4  §  274.  13  Bitterman  v.  Louisville  &  Nash- 
6  §275.  ville   E.   E.   Co.,   207   U.   S.   205,   52 

6  §277.  L.   ed.   171;    Nashville,   C.  &   St.   L. 

7  §278.  By.   Co.  v.  McConnell,  82  Fed.  65; 

8  §  279.  supra,  §§  79,  141. 

9  §280.  14  Wilson   v.   Lambert,   168   U.   S. 

10  §281.  611,  42  L.  ed.  599. 


§  2(J8J 


TO   STAY    I'KOCKKDINGS   IN    OTHER    COURTS 


i;j;j3 


ofteu  issued,  especial!}'  in  bankruptcy.^  Such  injunctions  must 
not  be  confounded  with  writs  of  prohibition,  which  are  addressed 
to  the  judge  of  a  court,  whereas  injunctions  are  directed  to  the 
parties  to  the  proceedings  wliich  it  is  desired  to  restrain.^  Or- 
dinarily, when  two  courts  have  a  concurrent  jurisdiction  over  the 
same  thing,  whichever  court  was  first  possessed  of  the  cause  has  a 
right  to  proceed  with  the  same,  and  proceedings  in  it  will  not  be 
prohibited  or  restrained  l)y  another.^  An  injunction  against  an 
application  for  an  injunction  should  not  be  granted ;  since  the 
equities  of  the  complainant  can  be  amply  protected  in  the  suit 
sought  to  be  enjoined.*  It  was  at  first  held  that  a  court  had  no 
power  to  restrain  a  defendant  from  suing  in  a  foreign  court;** 
but  it  is  now  established  that  it  can  do  so,^  although  such  a  power 
is  exercised  with  great  caution.  A  State  Court  may  enjoin  one 
of  its  citizens  from  suing  another  citizen  in  another  State  or  in 
another  jurisdiction  for  the  purpose  of  obtaining  the  benefit  of 
such  decisions  in  the  other  jurisdiction  as  differ  from  those  of  the 
State  courts  in  which  the  injunction  is  granted.''^ 

Where  the  parties  to  a  suit,  and  the  greater  part  of  the  prop- 
erty which  is  the  sul)ject  of  the  litigation,  are  within  the  juris- 
diction of  a  court,  where  a  suit  affecting  the  same  was  first  insti- 
tuted and  complete  relief  can  there  be  afforded;  an  injunction 


§  268.  1  McLean  v.  Lafayette 
Bank,  3  McLean,  18.j;  in  re 
Schwartz,   14  Fed.   787. 

2  See  Eden  on  Injunctions,  cli.  ii; 
Peck  V.  Jenne.ss,  7  How.  624,  12  L. 
ed.  846;  Dillion  v.  K.  C.  S,  B.  Ey. 
Co.,  4:i  Fed.   109,   111;   infra,   §4.56. 

3  Nicholas  v.  Nicholas,  Prec.  in 
Ch.  546 ;  Daniell's  Ch.  Pr.  (2d  Am. 
ed.)  1845;  .supra,  §S  52  GO.  But  .see 
Erie  Ry.  Co.  v.  Ramsey,  45  N.  Y. 
6:57. 

4  Robertson    v.   Montgomery   Base 
hall   Ass'n,    141    Ala.   :!48,    109   Am. 
St.  Rep.  30,  37  So.  388,  3  Ann.  Cas. 
965. 

6  Love    V.    Baker,    1    Ch.    Cas.    67 
decided  by  Lord  Clarendon;  but  tlic 
reporter  added,  "sed  qU'Opre,  for  all 
the  bar  was  of  another  opinion." 


6  Bunbury  v.  Bunbury,  1  Beav. 
."18;  Portarlington  v.  Soulby,  3 
Myl.  &  K.  104;  Dehon  v.  Foster,  4 
Allen  (Mass.)  545;  Engel  v. 
Scheuerman,  40  Ga.  206,  2  Am.  Rep. 
573 ;  Massie  v.  Watts,  6  Cranch, 
148,  3  L.  ed.  181;  Cole  v.  Cunning- 
ham, 133  U.  S.  107,  33  L.  ed.  538. 

7  Colo  V.  Cuiiiiingham,  133  V.  S. 
1U7,  33  L.  ed.  538  (administration 
of  insolvent's  estate);  Dinsmore  v. 
Nreisheimer,  39  Hun  (N.  Y.)  204, 
(liability  for  loss  of  package  by  ex- 
l)rcss  comiiany.)  Weaver  v.  Alabama 
Grape  So.  R.  R.  Co.,  Ala.  June  1917. 
76  So.  364.  But  see  Fed.  Trust  Co. 
v.  Conklin,  N.  J.  (administration  of 
insolvent's  estate.)  N.  J.  Eq.  98 
Atl.   109. 


I 


1336  INJUNCTIONS  [§  269 

against  the  institution  of  a  suit  for  the  same  object,  in  a  foreign 
jurisdiction,  may  be  granted.® 

The  Constitution  does  not  forbid  a  State  court  from  enjoining 
in  a  proper  case  a  person  within  its  jurisdiction  from  prosecuting 
a  suit  in  a  court  of  another  State.® 

An  injunction  order  providing  "that  all  suits  and  proceedings 
on  the  part  of"  certain  pei-sons  "against  the  said  bankrupt,  to 
collect  the  debt  set  forth,  be,  and  the  same  are  hereby  stayed,  to 
await  the  determination  of  the  court  in  bankruptcy  on  the  ques- 
tion of  the  discharge  therein,"  was  held  violated  by  those  who 
after  discontinuing  a  suit  then  pending,  subsequently  instituted 
another  to  recover  the  same  claim,  with  new  allegations  charg- 
ing fraud.^° 

§  269.  Injunctions  to  stay  proceeding's  in  Federal  courts.  In 
a  proper  case  a  Federal  court  will  enjoin  proceedings  in  the 
same  ^  or  another  court  of  the  United  States.^  Before  the  Act  of 
March  3,  1915,  which  authorized  equitable  defenses  to  be  inter- 
posed in  action  at  common  law  ^  such  injunctions  were  the  proper 
method  of  enforcing  defense  which  were  purely  equitable.*  Since 
this  Act  of  Congress  such  an  injunction  before  judgment  at  law 
seems  to  be  unnecessary.^ 

It  was  at  first  doubted  whether  a  Circuit  Court  of  the  United 
States  had  the  power  to  enjoin  the  prosecution  of  a  suit  in  a 
Federal  court  in  another  circuit ;  ^  although  the  power  to  enjoin 
the  prosecution  of  a  suit  in  another  district  of  the  same  circuit 
was  early  exercised."'^  It  is  now  settled,  however,  that  a  District 
Court  of  the  United  States  can,  in  a  proper  case,  enjoin  the 
prosecution  of  a  suit  in  any  other  court  of  the  United  States.' 

8  United  Cigarette  Mach.  Co.  v.  2  Kessler  v.  Eldred,  206  U.  S.  285, 
Wright,   156   Fed.   244.      See   supra,       51  L.  ed.  1065. 

g  57    infra,   §  270a.  %'^  Amending  Judicial  Code,  §  274b, 

9  Vail  V.'  Knapp,  49  Barb.  (N.  38"St.  at  L.  956,  Comp.  St.  §  1251b. 
Y.)  299;  Story's  Eq.  Jnr.  §§899,  /  4  Whitcomb  v.  Schultze,  C.  C.  A., 
900;    Cole   v.    Cunningham,    133    U.  223  Fed.  268,  273. 

S.   107,   33  L.   ed.  538.  6  United  Timber  Corp.  v.  Bivens, 

10  In  the  matter  of  Schwartz,  14       248  Fed.  554. 

Fed.  787.  For  the  construction  of  6  Kelley  v.  Ypsilanti,  D.  S.  Mfg. 
an  order  forbidding  the  use  of  a  Co.,  44  Fed.  19,  20,  per  Brown,  J. 
certain  defense,  see  Wakelee  v.  7  Monumental  Sav.  Ass'n  v.  Fen- 
Davis.  50  Fed.  522.  tress,    125   Fed.    812. 

§  269.     1  Whitecomb  v.  Schultze,  C.  8  Kessler  v.  Eldred,  206  U.  S.  285, 

C.  A.,  Fed.  268.  51  L.  ed.  1065. 


§269] 


TO  STAY  PROCEEDINGS  IN  FEDERAL  COURTS 


1337 


An  injunction  in  a  Federal  court  in  another  circuit,  forbidding 
the  collection  of  a  judgment,  was  followed  and  held  to  bind  the 
parties ;  but  not  to  prevent  the  collection  by  the  attorneys  of  one 
of  them  of  so  much  thereof  as  thej'  had  a  lien  upon.*  It  has  been 
said :  that  a  Federal  court  of  equity  cannot  enter  a  decree  direct- 
ing the  entry  of  a  satisfaction  of  a  judgment  at  law  in  the  same 
court ;  since  a  court  on  its  common-law  side  has  the  power  to 
direct  such  entr3\i*'  A  District  Court  of  the  United  States  can- 
not enjoin  a  party  to  a  judgment  at  common  law  therein,  from 
suing  out  a  writ  of  error  from  the  Circuit  Court  of  Appeals  to 
review  the  same.^^ 

When  a  suit  in  a  State  court  between  the  same  parties  has  been 
begun  prior  to  the  institution  of  a  suit  for  the  same  relief  in  Fed- 
eral court  it  is  usually  the  duty  of  the  latter  court  to  stay  ^^ 
proceedings  until  the  conclusion  of  the  prior  litigation,  but  the 
defendant  has  no  absolute  right  to  that  relief  which  is  in  the 
discretion  of  the  Federal  court. ^^  A  stay  of  the  trial  of  a  suit 
of  a  carrier  under  Federal  control,  notwithstanding  the  order 
upon  the  subject  by  the  Director  General  of  Railroads,^*  was  dis- 
cretionary^ with  the  court  and  the  burden  rested  upon  the  defend- 
ant to  show  that  the  interest  of  the  government  would  be  preju- 
diced by  an  immediate  trial. ^^  A  State  court  has  no  power  to 
stay,  by  injunction,  a  proceeding  in  a  court  of  the  United 
States.^®  A  State  court  cannot  direct  that  a  claim  involved  in  a 
suit  there  pending  shall  be  excluded  from,  and  in  no  ways  be 
affected  by  any  order,  rule,  or  decree  of  a  Federal  court.^''  A 
Federal  court  will  not  interfere  bj'  injunction  to  control  the 


9W.  A.  Chapman  &  Co.  v.  Mont- 
gomery W.  P.  Co.,  127  Fed.  839. 

lOMacrum  v.  U.  S.,  C.  C.  A.,  154 
Fed.  653.  See  Holt  v.  Dorsey,  Fed. 
Cas.  No.  6,647;  Medford  v.  Dorsey, 
Fed.  Cas.  Nos.  9,389,  9,390. 

H  Macrum  v.  U.  S.,  C.  C.  A.,  154 
Fed.   653. 

12  Zimmerman  v.  Soelle,  C.  C.  A., 
80  Fed.  417;  Weber  v.  Hertzell,  C. 
C.  A.,  230  Fed.  965.  See  supra, 
§57. 

13  Woren  v.  Witherbee,  Sherman 
&  Co.,  C.  C.  A.,  240  Fed.  1013;  City 


of  Ironton  v.  Harrison  Const.  Co.,  C. 
C.  A.,  212  Fed.  353;  Venner  v. 
Graves,  C.  C.  A.,  255  Fed.  686. 

14  Act   of   May   23,   1918. 

15  Harniek  v.  Pennsylvania  R.  Co., 
254  Fed.  748. 

16  MeKim  v.  Yoorhies,  7  Crancn, 
279,  3  L.  ed.  342;  Duncan  v.  Darst, 
1  How.  301-306,  11  L.  ed.  139,  141; 
City  Bank  of  N.  Y.  v.  Skelton,  2 
Blatehf.  14;  Beardslee  v,  Ingraham, 
183  N.  T.  411,  3  L.R.A.  (X.S.)  1073. 

17  Clark  v.  Bankers'  Trust  Co., 
177  App.  Div.  D.,  N.  Y.  627. 


1338 


INJUNCTIONS 


[§  269a 


action  of  public  officers  such  as  a  draft  board,^^  or  a  board  of 
steamboat  inspectors  i®  who  act  in  a  quasi  judicial  capacity,  when 
proceeding  within  their  jurisdictions.  The  only  remedy  is  an 
application  for  the  writ  of  certiorari.^^ 

§  269a.  Injunctions  against  patent  litigation.  A  manufac- 
turer, who  has  obtained  a  decree  in  his  favor,  which  has  been 
affirmed  by  the  Circuit  Court  of  Appeals  in  one  circuit,  can 
enjoin  the  complainant,  who  is  defeated,  from  bringing  similar 
suits  based  on  the  same  patent  against  the  customers  of  the  for- 
mer in  any  circuit  of  the  United  States,^  or  in  a  foreign  coun- 
try.2  Even  in  a  Circuit  where  the  Circuit  Court  of  Appeals  has 
held  under  similar  facts  in  favor  of  the  patentee ;  ^  a  suit  pre- 
viously brought  may  be  thus  enjoined.'*  The  same  relief  may 
be  obtained  by  a  manufacturer,  who,  although  not  a  party  of 
record  to  the  suit  resulting  in  the  adjudication,  had  filed  there 
a  stipulation  that  it  was  defending  the  case.^  Wliere  the  paten- 
tee sues  the  manufacturer  praying  for  profits  and  damages,  the 
court  may  enjoin  the  prosecution  or  institution  of  suits  against 
the  latter 's  vendees  until  final  decree.^  Where  suits  have 
been  already  begun  against  the  vendees,  the  application  should 
))e  made  to  the  courts  where  they  are  pending.'''  Where  the  in- 
vention consists  in  a  combination  of  elements  previously  known, 
the  vendee  of  an  element  by  a  manufacturer,  who  has  obtained 
a  decree  in  his  favor  authorizing  him  to  use  the  whole  combina- 
tion, has  no  defense  founded  upon  such  purchase  to  a  suit  to 
enjoin  him  from  using  the  combination  nor  can  he  obtain  a  stay 
or  an  injunction  against  such  suit  against  him.' 


18  Anglus  V.  Sullivan,  C.  C.  A.,  246 
Fed.   54. 

19  Williams  v.  Potter,  C.  C.  A.,  22.". 
Fed.   42.3. 

20  See  infra,  §  460. 

§  269a.  1  Kessler  v.  Eldved,  206 
U.  S.  285,  51  L.  ed.  1065. 

2  Goodyear  Tire  &  Rubber  Co.  v. 
Rubber  Tire  Wheel  Co.,  164  Fed. 
869. 

3  Kessler  v.  Eldred,  206  U.  S.  285, 
51  L.  ed.  1065. 

4  Kessler  v.  Eldred,  206  U.  S.  285, 
286,   51   L.    ed.   106.5,   1066. 

5  Marshall  v.  Bryant  Electric  Co., 


C.  C.  A.,  185  Fed.  499. 

6Allis  V.  Stowell,  16  Fed.  783; 
In  National  Cash  Register  Co.  v. 
Boston  Cash  I.  &  R.  Co.,  41  Fed. 
51 ;  Kelley  v.  Ypsilanti  Mfg.  Co.,  44 
Fed.  19,  10  L.  R.  A.,  686;  Stebler 
V.  Riverside  Heights  Orange  Grow- 
ers' Ass'n,  211  Fed.  985,  aff'd,  C. 
C.  A.,  214  Fed.  550. 

7  Kelley  v.  Ypsilanti  Mfg.  Co.,  44 
Fed.  19,  10  L.  R.  A.,  686;  Am.  Seed- 
ing Mach.  Co.  V.  Dowagiac  Mfg. 
Co.,  C.  C.  A.,  241  Fed.  875. 

8  Rubber  Tire  Wheel  Co.  v.  Good- 
year Tire  &  Rubber  Co.,  232  U.  S. 


269a] 


AGAINST    PATENT    LITIGATION 


i:j;39 


An  injunction  in  one  circuit  against  a  suit  by  the  owner  of 
a  patent  for  its  infringement  is  no  defense  to  a  suit  by  the  prior 
holder  of  an  exclusive  license  to  sell  in  a  limited  part  of  another 
circuit;®  and  in  such  suit  he  has  the  right  to  join  the  owner  of 
the  legal  title  as  a  complainant  without  the  latter 's  consent. ^'^ 
Where  the  licensor  obtained  in  the  Federal  Court  a  decree  that 
the  licensee  had  violated  the  conditions  of  his  license  and  was 
in  contempt  of  an  injunction  against  infringement  antedating 
the  license,  the  court  enjoined  the  prosecution  of  a  subsequent 
suit  in  a  State  court  where  the  licensee  had  obtained  an  inter- 
locutor.y  injunction  enjoining  the  termination  of  the  license 
upon  the  ground  that  it  had  not  been  violated."  A  suit  for 
infringement  brought  during  the  pendency  of  a  suit  to  deter- 
mine the  right  to  a  patent  may  be  stayed  a  reasonable  time  to 
await  the  determination  of  the  earlier  suit.^^  Ordinarily,  suits 
previously,"  or  subsequently,^*  instituted  to  enjoin  the  infringe- 
ment of  a  patent,  will  not  be  enjoined ;  the  defendant  being  al- 
lowed to  assert,  in  such  a  suit,  any  equitable  defense  that  he  may 
have;  but  when  there  is  a  multiplicity  of  suits,  involving  the 
same  defenses,  the  courts  in  which  any  of  such  cases  are  pend- 
ing may  stay  proceedings  therein,  until  the  suit  between  the 
patentee  and  the  principal  infringer  is  decided." 

A  bill  filed  by  the  defendant  in  five  actions  at  law  brought 
by  different  territorial  licensees  for  infringement  of  the  same 
patent,  praying  that  all  be  stayed,  except  one  which  should  be 
selected  and  tried  as  a  test  case,  was  dismissed ;  when  it  contained 
no  allegation  that  the  several  plaintiffs  had  refused  to  join  in 
making  a  test  case,  there  being  no  showing  that  the  court  could 


413;  Seim  v.  Hurd,  232  U.  S.  420; 
Woodworth  Co.,  v.  Hurd,  232  U.  S. 
428. 

9  Hurd  V.  J.  Goold  Co.,  C.  C.  A., 
203  Fed.  998. 

10  Ibid. ;  see  supra,  §  112. 

11  Libbey  Glass  Co.  v.  McKee 
Glass  Co.,  216  Fed.  172. 

12  Steinberger  v.  General  El.  Co., 
207  Fed.  114. 

ISKelley  v.  Ypsilanti  D.  S.  Mfg. 
Co.,  44  Fed.  19;  Am.  School  Furni- 
ture Co.  V.  J.  M.  Sauder  Co.,  106 
Fed.  731;  Commercial  Acetylene  Co. 


V.  Avery  Portable  Lighting  Co.,  152 
Fed.  642;  Kryptok  Co.  v.  Stearns 
Lens  Co.,  190  Fed.  767;  Gamwell 
Fire  Alarm  Telegraph  Co.  v.  Star 
Electric  Co.,  199  Fed.  188. 

14  Clip  Bar  Mfg.  Co.  v.  Steel  Pro- 
tected Concrete  Co.,  209  Fed.  874. 

15  Kumford  Chem.  Works  v.  Hec- 
ker,  5  Off.  Gaz.  644;  Allis  v.  Stow- 
ell,  16  Fed  783;  Nat.  Cash  Eeg. 
Co.  V.  Boston  Cash  I.  &  R.  Co.,  41 
Fed.  51;  Commercial  Acetyelene  Co. 
V.  Avery  Portable  Lighting  Co.,  152 
Fed.  642. 


1340 


INJUNCTIONS 


[§270 


not  on  motion  regulate  the  hearing  of  the  questions  so  as  to  pre- 
vent oppression. 1^ 

Where  some  of  the  defendants  set  up  different  defenses,  it 
was  held  that  the  court  "could  not  restrain  in  part  and  permit 
in  part  the  prosecution  of  the  cases.  It  would  have  no  right  to 
issue  an  injunction  which  should  [sic]  have  the  effect  to  split 
up  the  cases,  enjoining  their  prosecution  as  to  some  branches  of 
the  controversy  and  permitting  it  as  to  the  others. "  ^"^  A  bill 
to  enjoin  defendant  from  prosecuting  an  action  at  law  for  an  in- 
fringement cannot  be  sustained  when  the  only  grounds  alleged 
are  that  complainant  will  be  put  to  great  expense  for  attorney's 
fees  and  other  costs,  and  that  he  is  informed  that  defendant  will 
be  unable  to  pay  the  same.^^  The  subsequent  commencement  of 
suits  upon  the  same  patent,  against  the  customers  of  the  original 
defendant,  may  be  enjoined  pending  the  suit  against  the  manu- 
facturer in  a  proper  case,^^  but  not,  at  least  in  another  circuit, 
suits  against  strangers.^®  It  has  been  held :  that  in  a  suit  by  the 
United  States  to  vacate  a  patent  for  an  invention,  a  preliminary 
injunction  will  not  be  granted  to  restrain  the  prosecution  by  the 
defendant  of  suits  for  the  infringement  of  the  patent. ^^ 

§  270.  Injunctions  to  stay  proceeding's  in  State  courts.  The 
Judicial  Code  re-enacting  a  section  of  the  Revised  Statutes  ^ 
provides  that  "The  Avrit  of  injunction  shall  not  be  granted  by 
any  court  of  the  United  States  to  stay  proceedings  in  any  court 
of  a  State,  except  in  cases  where  such  injunctions  may  be  au- 
thorized by  an}'  law  relating  to  proceedings  in  bankruptcy."^ 


16  Galvin  Iron  Works  Co.  v.  Ohio 
Corrugated  Culvert  Co.  C.  C.  A.,  244 
Fed.  427. 

17  Germain  v.  Wilgus,  C.  C.  A., 
67  Fed.  597. 

18  Dyer  J.,  in  Allis  v.  Stowell,  16 
Fed.  783,  790. 

19  Birdsell  v.  Hagerstown  Agr. 
Imp.  Mfg.  Co.,  1  Hughes,  64  Fed. 
Cas.  No.  1,437;  Ide  v.  Ball  Engine 
Co.,  31  Fed.  901;  Commercial  Ace- 
tylene Co.  V.  Avery  Portable  Light- 
ing Co.,  152  Fed.  642;  Lovell- 
M'Connell  Mfg.  Co.  v.  Automobile 
S.  Mfg.  Co.,  193  Fed.  658,  659, 
663. 


20  Clip  Bar  Mfg.  Co.  v.  Steel  Pro- 
tected Concrete  Co.,  209  Fed.  874. 

21  U.  S.  V.  Colgate,  21  Fed.  318. 
§  270.     1  U.  S.  E.  S.,  §  720. 

2  Jud.  Code,  §  265,  36  St.  at  L. 
1087.  See  Slaughter  House  Cases, 
10  Wall.  273,  19  L.  ed.  915;  Haines 
V.  Carpenter,  91  U.  S.  254,  23  L. 
ed.  345;  Dial  v.  Reynolds,  96  U.  S. 
340,  24  L.  ed.  644;  Rensselaer  &  S. 
R.  Co.  V.  Bennington  &  R.  R.  Co., 
18  Fed.  617;  M.,  K.  &  T.  Ry.  Co. 
V.  Scott,  13  Fed.  793;  s.  c,  4Woods, 
.^86;  Hamilton  v.  Walsh,  23  Fed. 
420;  Tifft  V.  Iron  Clad  Mfg.  Co.,  16 
Blatchf.   48;    Tick   Wo   v.    Crowley, 


§  270] 


TO    STAY   PROCEEDINGS    IN    STATE    COURTS 


1341 


"This  prohibition  of  the  statute  extends  to  all  cases  over  which 
the  State  court  first  obtains  jurisdiction,  and  applies  not  only 
to  injunctions  aimed  at  the  State  court  itself,  but  also  to  in- 
junctions aimed  at  parties  before  the  court,  its  officers  or  liti- 
gants therein. ' '  ^ 

It  applies  to  suits  removed  from  a  State  court  as  well  as  to 
suits  originally  institued  in  the  Federal  forum.* 

Accordingly  a  Federal  court  has  refused  to  enjoin:  a  rail- 
way company  from  taking  possession  of  land  upon  the  termina- 
tion of  condemnation  proceedings  in  a  State  court,  to  which  the 
applicant  for  the  injunction  was  a  party ;  ^  the  plaintiff  in  a 
foreclosure  suit  from  selling  property  under  a  decree  of  the 
State  court  therein,  although  the  Federal  complainant  was  not  a 
party  to  such  suit,  and  claimed  a  lien  upon  such  property,  which 
was  in  the  hands  of  a  receiver  appointed  by  such  court ;  ^  a 
town  from  selling  property  to  pay  an  assessment  the  collection 
of  which  had  been  ordered  by  a  State  court  directing  the  laying 
out  of  a  highway ; ''  public  officers  from  enforcing  an  assessment 
made  by  a  county  court  which  was  appealable  to  a  higher  court 
of  the  State,^  a  State  receiver  from  issuing  receiver's  certifi- 
cates ;  ^  parties  to  a  suit  in  a  State  court  from  carrying  out  an 
agreement  sanctioned  by  it,^**  and  an  administrator  from  dis- 
tributing the  estate  in  his  hands.^^    But  an  injunction  has  been 


26  Fed.  207;  Scruggs  &  Echols  v. 
Am.  Cent.  Ins.  Co.  of  St.  Louis,  C. 
C  A.,  176  Fed.  224;  Quintou  v. 
Equitable  Inv.  Co.,  C.  C.  A.,  196 
Fed.  314;  Maxwell  v.  McDaniels,  C. 
C.  A.,  184  Fed.  311. 

3  Toulmin,   D,    J.,    in    Whitney   v. 
.Wilder,  C.  C.  A.,  54  Fed.  554,  555; 

Chicago  Trust  &  Sav.  Bank  v.  Bentz, 
C.  C.  A.,  59  Fed.  645,  647;  Western 
Union  Tel.  Co.  v.  U.  S.  &  M.  T.  Co., 
221   Fed.   545. 

4  Diggs  V.  Walcott,  4  Cranch,  179 ; 
Bandurent  v.  Watson,  103  U.  S.  288; 
Lawrence  v.  Morgan's  Ry.  Co.,  121 
Fed.  636;  Simon  v.  Southern  Ey. 
Co.,  236  U.  S.  115,  127,  35  Sup.  Ct., 
255;  Union  Ry.  Co,  v.  Illinois  Cent. 
Tr.  Co.,  C.  C.  A.,  207  Fed.  745,  see 


St.  Louis  &  S.  F.  R.  Co.  v.  City  of 
Tulsa,    213    Fed.    87. 

5  Dillon  V.  Kansas  City  S.  B.  Ey. 
Co.,  43  Fed.  109;  Western  Union 
Tel.  Co.  V.  Louisville  &  N.  Ey.  Co., 
C.  C.  A.,  218  Fed.  628. 

6  Security  Trust  Co.  v.  I'nion 
Trust  Co.,  134  Fed.  301. 

7Fenwick    Hall    Co.    v.    Old    S:y 
l)rook,  66  Fed.  389. 

8  McLaughlin  v.  St.  Louis  South- 
western Ey.  Co.,  C.  C.  A.,  232  Fed. 
579. 

9Eeinach  v.  Atlantic  k  0.  W.  E. 
Co.,  58  Fed.  33. 

10  Ibid. 

n  Whitney  v.  Wilder,  C.  C.  A.,  54 
Fed.  554. 


1342 


INJUNCTIONS 


[§270 


granted  forbidding  an  ancillary  administrator  from  receiving 
any  portion  of  the  estate  under  any  order  of  distribution,  by 
either  the  local  probate  court  or  the  court  of  original  probate 
jurisdiction;  although  the  court  refused  to  enjoin  him  from 
removing  any  part  of  the  estate  beyond  its  jurisdiction. ^^  It 
has  been  held:  that  the  statute  forbids  any  injunction  to  stay 
proceedings  in  a  suit  where  the  State  court  has  no  jurisdiction ; 
at  least  where  no  Federal  right  has  been  invaded ;  ^^  and  no  final 
judgment  has  been  entered ;  ^^  nor,  because  of  local  prejudice 
against  a  citizen  of  another  state.^^  j^  the  last  case  the  remedy 
is  an  application  for  removal  to  the  Federal  court.^^  Where  a 
bill  prays  an  injunction  or  stay  of  proceedings  in  a  State  court, 
and  also  other  relief  which  would  be  useless  without  such  an 
injunction,  the  whole  bill  will  be  dismissed  on  demurrer.^' 

A  county  commissioners'  court  in  Texas,  when  declaring  the 
result  of  an  election, ^^  and  a  public  service  commission,^®  were 
said  not  to  be  within  the  statute.  So  were  held  not  to  be  officers 
seizing  intoxicating  liquors  under  search  and  seizure  war- 
rants.^ But  where  an  appeal  to  a  State  court  had  been  taken 
from  the  decision  of  a  board,  and  the  proceeding  remanded 
after  affirmance  with  directions  to  extend  the  time  for  the  per- 
formance of  the  order,  it  was  held  that  the  proceedings  in  the 
State  court  were  not  terminated  and  that  no  Federal  injunc- 
tion could  be  granted.2^ 

The  statute  forbids  an  injunction  against  the  taking  of  depo- 
sitions 22  and  against  any  proceeding  in  the  State  Court,^^  in- 


12  IngersoU  v.  Coram,  132  Fed. 
1G8;  aff'd,  Coram  v.  IngersoU,  C.  C. 
A.,  133  Fed.  126. 

13  Senior  v.  Pieree,  31  Fed.  625, 
631;  Phelps  v.  Mut.  Reserve  Fund 
Life  Ass'n,  C.  C.  A.,  61  L.R.A.  717, 
112  Fed.  453.  Contra,  Simon  v. 
Southern  Ry.  Co.,  236  U.  S.  115, 
35  Sup.  Ct.  255,  affirming,  C.  C.  A., 
195  Fed.  556,  D.  C,  153  Fed.  234 
(after  final  judgment)  ;  Carl 
Laemmle  Music  Co.  v.  Stern,  209 
Fed.  129.  See  Moran  v.  Sturgcs, 
154  U.  S.  256,  38  L.  ed.  981. 

14Essanay  Film  Mfg.  Co.  v. 
Kane,  256  Fed.  271. 


15  Robinson  v.  Wemmer,  253  Fed. 
790. 

16  See  infra,  §  549. 

17  Molony   v.   Massachusetts   Loan 
Ass'n,  53  Fed.  209. 

18  August  Busch  &   Co.  v.   Webb, 
122  Fed.  655. 

19  Central    Vermont    Ry.     Co.     v. 
Redmond,   189   Fed.   683. 

20Danciger    v.    Stone,    188    Fed. 
510. 

21  Central    Vermont    Ry.     Co.    v. 
Redmond,   189    Fed.   683. 

22  Am.   Shipbuilding  Co.  v.  Whit- 
ney, 190  Fed.   109. 

23  Amusement     Syndicate     Co.     v. 


§270] 


TO    STAY    I'KUCLEDlXCiS    JN    STATE    COURTS 


V.'A'.l 


eluding  an  injunction  at  tlic  suit  of  a  beneficiary  of  a  trust  to 
compel  the  defendant  to  remove  a  structure  with  which  the 
State  Court  had  forbidden  complainant's  trustee  to  interfere.^* 

The  statute  does  not  forbid  an  injunction  against  the  com- 
mencement of  a  criminal,''^  or  a  civil  suit,  not  already  brought. ^^ 

The  statute  does  not  forl)id  a  Federal  injunction,  obtained  by 
a  person  not  a  party  to  a  suit  in  tlie  State  court,  which  enjoins 
the  complainant  in  the  latter  from  committing  acts,  which,  in 
the  State  court,  he  has  enjoined  a  defendant  to  the  Federal  suit 
from  preventing.2'''  Nor,  it  lias  been  held,  a  suit  to  enjoin  a 
person  from  setting  up  a  claim  to  the  right  to  use  a  railroad 
switch,  which  the  court  has  held  tliat  he  was  entitled  to  use, 
where,  since  the  decision,  the  corporation  has  sold  the  switch 
to  the  plaintiff  to  the  injunction  suit.^s  Nor  it  w^as  held  a 
suit  to  prevent  a  railroad  company  from  obtaining  the  benefit 
of  a  judgment  authorizing  it  to  construct  a  grade  crossing  over 
complainant's  railroad.^^  Nor  it  has  been  held  an  injunc- 
tion against  proceedings  to  condemn  property  held  for  another 
public  purpose.30  It  has  been  held  that  a  Federal  court  can 
prevent  by  injunction  the  levy  by  a  State  sheriff  under  State 
process  against  a  State  judgment-debtor  upon  the  property  of  a 
stranger  to  the  suit  and  process ;  ^^  but  not  the  sale  by  the  sheriff 
of  the  property  of  sureties  on  a  sale  bond  under  the  execution 
of  a  State  court .32  Nor,  it  seems,  can  it  enjoin  the  sale  by  the 
sheriff  of  property  in  his  possession  and  in  the  custody  of  the 
State  court,33  although  the  sale,  of  land,  levied  upon  by  the 


El  Paso  Land  Improveineut  Co.,  251 
Fed.  345. 

24  Ibid. 

25  Infra,  §  271 ;  Minneapolis  Gen- 
eral E.  Co.  V.  City  of  Minneapolis, 
194  Fed.  215;  Jewel  Tea  Co.  v. 
Lee's  Summit,  Mo.,  198  Fed.  532. 

26  Texas  &  Pac.  By.  Co.  v.  Kutc- 
men,  C.  C.  A.,  54  Fed.  547;  Laigli- 
ton  V.  City  of  Cartliage,  Mo.,  175 
Fed.  145;  Western  Union  Tel.  Co. 
V.  Cooper,  182  Fed.  710;  Kansas 
City  Gas  Co.  v.  Kansas  City,  198 
Fed.  500. 

27  New  York  Cotton  Exch.  v. 
Hunt,  144  Fed.  511.    Contra,  Amuse- 


ment Syndicate  Co.  v.  El  Paso  Land 
Improvement  Co.,  251   Fed.   345. 

28  Oman  v.  Bedford-Bowling 
Green  Stone  Co.,  C.  C.  A.,  134  Fed. 
64. 

29  Union  Ey.  Co.  v.  Illinois  Cent. 
Ry.    Co.,    C.    C.    A.,    207   Fed.    745. 

30  St.  Louis  &  S.  F.  Ry.  Co.  v. 
City  of  Tulsa,  213  Fed.  87. 

31  Cropper  v.  Colnirn,  2  Curt.  4(i5. 

32  American  Ass  'n  Ld.  v.  Hurst, 
59   Fed.   1. 

33  Daly  v.  Sheriff,  1  Woods,  175. 
Fed.  Cas.  No.  3,553;  Southern  Bank 
&'  Tr.  Co.  V.  Folsom,  C.  C.  A.,  75 
Fed.  929;    Watson   v.   Bondurant,   2 


1344  INJUNCTIONS  [§  270 

sheriff,  but  not  in  the  hands  of  a  receiver,  was  enjoined  at  the 
suit  of  the  owner,  who  was  not  a  party  to  the  judgment,'*  It 
has  been  held  that  a  Federal  court  may  enjoin:  the  entry  upon 
land,  under  a  title  acquired  by  condemnation  proceedings  in  the 
State  court,  when  the  application  for  the  injunction  is  made 
by  a  person  claiming  an  interest  in  the  land,  who  was  not  made 
a  party  to  those  proceedings.'^ 

In  suits  against  public  officers  to  enjoin  the  enforcement  of  an 
order  or  statute  reducing  the  rates  to  be  charged  by  public  serv- 
ice corporations,  injunctions  against  suits  by  them  and  also  by 
members  of  the  public  pending  litigation  and  preliminary  in- 
junctions have  been  issued.'^  After  the  dismissal  of  the  bill,  it 
was  held  that  persons  not  parties  to  such  a  suit  could  not  be  en- 
joined from  suing  the  public  service  company  for  damages  to 
them  individually,  because  of  the  excessive  charges  pending  the 
litigation  although  they  might  be  enjoined  from  suing  upon  the 
bond  given  to  secure  the  injunction  when  a  special  master  had 
been  appointed  to  determine  the  amount  of  the  liability,  there- 
upon.'' 

The  statute  does  not  forbid  an  injunction  restraining  the 
enforcement  of  a  final  judgment.''''^  In  a  number  of  cases,  the 
courts  have  refused  to  apply  the  inhibition  to  suits  to  re- 
strain the  enforcement  of  judgments  for  want  of  jurisdiction 
over  the  subject-matter,'^  or  over  the  person  of  the  defendant,'^ 
or  because  they  have  been  unconscionahly  obtained,*"  but  not. 

Woods,  166;  Perry  v.  Sharpe,  8  Fed.       Ey.  Co.,  C.  C.  A.,  220  Fed.  876,  re- 
23;   ^upra,   §56.  versing    211    Fed.    172,    see    supra, 

34  Julian  v.  Central  Trust  Co.,  C.       §§113,  258g. 

C.  A.,  115  Fed.  956.  •  37a  Simon    v.    Southern    Ey.    Co., 

35  Colorado  Eastern  E.  Co.  v.  Chi-  236  U.  S.  115,  124,  35  Sup.  Ct.  255, 
cago  B.  &  Q.  E.   Co.,  C.  C.  A.,  141       258,  59  L.  ed.  492. 

Fed.  898;   Schultz  v.  Highland  Gold  38  Simon  v.  Southern  Ey.  Co.,  236 

Mines  Co.,  158  Fed.  337.  U.    S.    115,    130,    35    Sup.    Ct.    255, 

36  Be  Arkansas  E.  Bates,  163  Fi?a  affirming  C.  C.  A.,  195  Fed.  556, 
141  as  explained;  Bellamy  v.  St.  D.  C,  153  Fed.  234;  McFarland  v. 
Louis,  I.  M.  &  S.  Ey.  Co.,  C  C.  A..  Curtin,  C.  C.  A.,  233  Fed.  728  (wh  , 
220  Fed.  876;  reversed  upon  an-  disclaimer  was  filed  without  author- 
other  ground  Allen  v.  St.  Louis  ity).  Be  Long  Island  N.  S.  P.  & 
Iron  Mt.  &  So.  Ey.  Co.,  230  U.  S.  F.  Co.,  5  Fed.  599,  The  Eevear,  191 
553,    53    Sup.    Ct.    1030,    57    L.    ed.  Fed.  253.     See  infra,  §  599. 

1625;    Union    E.    E.    Co.    v.    Illinois  39  Simon  v.  Southern  Ey.  Co.,  236 

Cent.    E.    Co.,    C.    C.    A.,    207    Fed.  U.  S.  115,  132. 

745.  40  Marshall  v.   Holmes,  141  U.  S. 

37  Bellamy  v.  St.  Louis,  I.  M.  &  S.  589 ;   Luton  v.  Safe  Deposit  &  Title 


§270J 


TO    STAY    i'HOCEEDlNGS    IX    STATE    COURTS 


1845 


in  the  absence  of  other  equities,  because  of  a  defense 
which  might  have  been  raised  in  the  original  suit.*^ 
Thus  tliey  have  restrained:  the  use  of  a  judgment  of  a  State 
court  when  the  validity  of  the  judgment  -was  not  thereby 
impaired;  ^'^  the  issue  of  execution  upon  a  judgment  of  a  State 
court,  entered  against  a  party  who  was  not  served  with  process ;  *^ 
a  defendant  from  selling,  encumbering,  or  in  any  way  disposing 
of,  lands  bought  at  a  sheriff's  sale;  "  and  the  wrongful  or  an  in- 
equitable use  of  an  execution  on  a  judgment  of  a  State  court.** 
It  has  been  held:  that  a  District  or  Circuit  Judge  or  District 
Court  has  no  power  to  enjoin  the  enforcement  of  a  judgment  in  a 
State  court  after  a  writ  of  error  issued  from  the  Supreme 
Court  of  the  United  States  accompanied  by  a  supersedeas;^^ 
and  that  this  can  be  done,  if  at  all,  only  by  a  Justice  of  the 
Supreme  Court.*'''  The  proper  remed}^  is  a  contempt  pro- 
ceeding.*^  Pending  such  a  writ  of  error  the  plaintiff  in  error 
cannot  secure  relief  against  the  judgment  for  want  of  jurisdic- 
tion by  a  suit  in  a  District  Court  of  the  United  States.**  But 
where  the  judgment  was  against  a  surety  on  a  bond  and  the 
claims  exceeded  the  penalty,  the  District  Court  enjoined  its  col- 
lection until  it  was  determined  what  proportion  of  the  penalty 
was  due  the  judgment  creditor,*" 

When  the  complainants,  the  daj^  a  writ  of  error  was  dismissed 


Guaranty    Co.,    147    Fed.    824;    see 
Intermela  v.  Perkins,  213  Fed,  106. 

41  MeKinnon  v.  New  York  Assets 
Realization  Co.,  217  Fed,  339; 
Western  Union  Tel,  Co.,  v,  Louis- 
ville Ey.  Co.,  C.  C.  A,,  218  Fed. 
628;  Eggcrs  v.  Krueger,  C.  C.  A., 
236  Fed,  852;  Du  Pont  v.  Gardiner, 
C,  C,  A,,  238  Fed,  755;  Pell  v,  Mc- 
Cabe,  254  Fed,  356,  357;  General 
Film  Co.  V,  Sampliner,  C,  C.  A.,  252 
Fed.  443, 

42  Linton  v,  Mosgrove,  14  Fed. 
543,  criticised  in  Am.  Ass'n  Ld. 
V.  Hurst,  59  Fed.  1,  4,  but  sup- 
ported by  Provident  L.  &  Tr.  Co, 
V,  Mills,  91  Fed.  435;  Lehman  v. 
L.  ed.  657 ;   infra,  §  428. 


Graham,  C.  C.  A.,  135  Fed.  39;  see 
supra,  §  51. 

43  Southern  R,  Co.  v.  Simon,  153 
Fed.  234;  Simon  v.  Southern  Ey. 
Co.,  236  U.  S.,  115,  127,  35  Sup. 
Ct,   255, 

44Massie  v.  Buck,  C.  C.  A.,  128 
Fed.  27.     See  supra,  §  51. 

45  Linton  v.  Safe  Deposit  &  Title 
Guaranty  Co,,  147  Fed,  824, 

46  Murray  v,  Overstoltz,  8  Fed. 
110. 

47  Ibid, 

48  Ee  McKenzie,  180  U.  S.  536,  45 

49  American  Surety  Co.  v.  Mills, 
C.  C.  A.,  232  Fed.  841, 

60  Ibid. 


1316 


INJUNCTIONS 


[§  270a 


for  want  of  prosecution,  deposited  in  the  court's  register  the 
amount  due  under  the  judgment ;  it  was  held  that  they  were 
entitled  to  an  injunction,  restraining  its  collection  pending  final 
disposition  of  their  suit  for  specific  performance  of  a  contract  of 
settlement  upon  condition  that  the  deposit  remain  as  security  for 
the  amount  due  the  defendant  upon  the  decree  in  such  suit.^^ 

§  270a.  Injunctions  to  protect  jurisdiction  of  Federal  courts. 
The  inhibition  does  not  apply  to  injunctions  granted  to  protect 
the  jurisdiction  of  the  Federal  courts.  A  Federal  court  has  power 
to  issuje  an  injunction  to  stay  proceedings  in  a  State  court  which 
interfere  with  the  enforcement  of  one  of  its  own  judgments,  and 
to  stay  proceedings  which  have  been  instituted  or  continued  after 
the  beginning  of  or  removal  of  the  suit  into  the  Federal  jurisdic- 
tion.^  "It  is  now  so  thoroughly  settled  that  this  provision  of  law 
does  not  apply  to  proceedings  incidental  to  jurisdiction  properly 
ac(|uired  by  a  Federal  court  for  other  purposes  than  that  of 
enjoining  proceedings  in  a  State  court,  that  the  proposition  needs 
no  discussion.  "2     Such  an  injunction  should  rarely  be  issued.^ 

If  the  plaintiff  threatens  to  proceed  in  the  State  court  after  a 
removal,*  or  if  he  refuses  to  file  his  pleadings  so  that  a  transcript 
can  be  obtained,^  he  may  be  enjoined  from  taking  any  further 
steps  therein.    But  an  injunction  was  refused  where,  although  a 


61  McSweency  Packing  Co.  v. 
Bashlin,  C.  C.  A.,  211  Fed.  922. 

§  270a.  1  French  v.  Hay,  22  Wall. 
2.30,  22  L.  ed.  857;  Dietzsch  v. 
Huidekoper,  103  U.  S.  494,  26  L. 
ed.  497;  Madisonville  Traction  Co. 
V.  St.  Bernard  Min.  Co.,  196  U.  S. 
239,  49  L.  ed.  462;  s.  C,  130  Fed. 
794;  Fisk  v.  Union  Pac.  E.  Co.,  10 
Blatehf.  518;  Sharon  v.  Terry,  1 
L.E.A.  572,  36  Fed.  337;  Jesup  v. 
Wabash,  St.  L.  &  P.  Ry.  Co.,  44 
Fed.  663,  664,  667;  Abeel  v.  Cul- 
berson, 56  Fed.  329;  Baltimore  & 
O.  E.  Co.  V.  Ford,  85  Fed.  170; 
Bowdoin  College  v.  Merritt,  59  Fed. 
86;  Central  Trust  Co.  v.  St.  Louis, 
A.  &  T.  Ey.  Co.,  59  Fed.  385;  Cen- 
tral Tr.  Co.  V.  Western  N.  C.  E. 
Co.,  89  Fed.  24;  Garner  v.  Second 
Nat.   Bank,   67    Fed.   833;    Lanning 


V.  Osborne,  79  Fed.  657;  Stewart  v. 
Wisconsin  Cent.  Ey.  Co.,  117  Fed. 
782;  Massie  v.  Buck,  C.  C.  A.,  128 
Fed.  27;  Miller  &  Lux  v.  Eickey, 
146  Fed.  574;  Gay  v.  Hudson  Eiver 
El.  Power  Co.,  182  Fed.  279 ;  Nelson 
V.  Camp,  C.  C.  A.,  191  Fed.  712; 
Libbey  Glass  Co.  v.  McKee  Glass 
Co.,  216  Fed.  172;  Waldo  v.  Wil- 
son, C.  C.  A.,  4th  Ct.,  231  Fed.  655; 
siqjra,  §52;  infra,  §§284,  313. 

2  Gregory  v.  Pike,  67  Fed.  835, 
836,  per  Putnam,  J. 

3  Frishman  v.  Insurance  Co.,  41 
Fed.  449;  Sinclair  v.  Pierce,  50  Fed. 
851. 

4  Madisonville  Traction  Co.  v.  St. 
Bernard  Min.  Co.,  196  U.  S.  .239. 
See  infra,  §§  554,  555. 

6  Atlantic  Coast  Ey.  Co.  v.  Feas- 
ter,  260  Fed.  881. 


§  270a]       TO    PROTECT    JURISDICTION    OF   FEDERAL   COURTS  1347 

petition  for  removal  with  a  bund  had  boen  tiled  in  the  State 
court,  no  action  had  been  taken  upon  them  and  no  copy  of  the 
record  had  been  filed  in  the  Federal  court. ^  Where  the  Federal 
court  after  an  attempted  removal  has  refused  to  assume  jurisdic- 
tion upon  the  ground  that  the  case  was  not  removable,  the  judg- 
ment cannot  be  reviewed  by  a  l)ill  in  equity  to  enjoin  the  State 
court  from  further  proceed ings7  In  a  possessory  suit  where  jur- 
isdiction of  the  Federal  court  has  first  attached,  it  may  forbid 
proceedings  from  the  State  court,  which  affect  the  title  or  posses- 
sion of  the  subject  mattei-.^  It  has  been  held:  that  where  proj)- 
erty  is  in  the  possession  of  a  receiver  of  a  Federal  court,  such 
court  may  forbid  a  suit  in  the  State  court  which  attempts  to  es- 
tablish an  easement  thereupon,^  but  not  an  action  in  personam 
against  the  receiver.^"  That  where  property  has  been  sold  under 
a  decree  directing  that  the  purchaser  pay  all  claims  against  the 
receiver,  the  court  will  restrain  a  suit  against  the  purchaser  ^^  in 
the  State  court,  but  that  this  rule  does  not  apply  where  property 
in  the  possession  of  a  receiver  is  returned  to  the  original  owners 
on  the  same  eonditions.^^ 

In  a  proper  case  after  the  ai)pointment  of  a  receiver  the  Fed- 
eral court  may  restrain  suits  previously  or  subseciuently  brought 
which  interfere  with  the  administration  of  the  assets.*^  Such 
injunctions  have  been  granted  to  I'estrain  the  continuance  of  a 
suit  previously  begun  to  enforce  a  lien  on  the  property,  in  which 
the  plaintiff  had  been  guilty  of  laches;  ^*  to  restrain  a  separate 
action  against   a   party  to  tlie   foreclosure  suit  to   enforce   an 


eCoeur  d'Alene  By.  &  Nav.  Co. 
V.  Spalding,  C.  C.  A.,  93  Fed.  280. 
See  Missouri,  K.  &  T.  Ry.  Co.  v. 
Reott,  13  Fed.  793. 

7  Paeifie  Live  Stock  Co.  v.  Lewis, 
217  Fed.  95. 

8  Western  Union  Tel.  Co.  v.  U.  S. 
&  Min.  Tr.  Co.,  C.  C.  A.,  221  Fed. 
545;  Shereman  Nat.  Bank  v.  Sliii- 
bert  Theatrical  Co.,  224  Fed.  225, 
sufirn,   §  52-56. 

9  Holmes  v.  Dowie,  C.  C.  A.,  177 
Fed.  182. 

10  Smith  V.  Jones  Lumber  &  Mer 
cantile  Co.,  200  Fed.  647. 

llJesnp   V.   Wal)ash,  St.   L.   &   P. 


Ry.  Co.,  44  Fed.  663,  664,  667;  Cen- 
tral Tr.  Co.  V.  St.  Louis,  A.  &  T. 
Ry.  Co.,  59  Fed.  385.  See  §394, 
infra. 

12  Texas  &  Pac  Ry.  Co.  v.  John- 
son, 151   U.  S,  81,   38   L.  ed.   81. 

13  Equitable  Trust  Co.  of  New 
York  V.  Western  Pae.  Ry.  Co.,  231 
Fed.  478;  Jai'kson  v.  Parkersburg 
&  Ohio  Valley  Ele.'.  Ry.  Co.,  233 
Fed.  784;  Security  Inv.  Co.  of 
Pitts.  V.  First  Nat.  Bank  of  Beau- 
mont, Tex.,  C.  C.  A.,  203  Fed.  632. 

14  Jackson  v.  Parkersburg  &  Ohio 
Valley  Elec.  Ry.  Co.,  233  Fed.  784. 
but   see  siiitiii,   §§  52,  55. 


■ 


1348  INJUNCTIONS  [§  270a 

agreement  to  make  advances  for  interest  and  a  sinking  fund.^^ 
To  restrain  a  suit  to  collect  an  extension  note  which  matured 
before  other  extension  notes,  all  issued  under  a  scheme  of  ex- 
tensions to  which  the  note  in  suit  referred,  the  early  maturity 
of  the  note  in  suit,  having  been  concealed  from  the  other  cred- 
itors when  its  collection  would  have  given  its  holder  an 
unconscionable  preference  in  the  distribution  of  property  in  the 
hands  of  the  receiver.^^ 

It  has  been  held  that  the  Federal  courts  should  not  restrain 
suits  against  the  owners  of  property  in  their  possession  which 
will  not  interfere  with  the  possession  ^^  nor  restrain  an  action 
to  foreclose  a  mortgage  upon  property  in  the  hands  of  its  re- 
ceiver. ^^ 

Following  the  analogy  of  an  action  authorized  by  statute  in 
admiralty  and  bankruptcy,  the  Federal  courts  sometimes,  in- 
clude in  the  order  for  the  appointment  of  a  receiver  of  the  prop- 
erty of  a  corporation  an  injunction  against  the  commencement 
or  continuance  of  any  suit  against  the  company  in  a  State  court 
by  any  one.  This  practice  is  not  justified  by  precedent.  It  is  in 
conflict  with  the  public  policy  of  the  United  States  as  expressed 
in  the  Act  of  Congress  authorizing  suits  against  Federal  re- 
ceivers without  the  consent  of  the  courts  that  appointed  them.^^ 

That  such  an  order  cannot  forbid  without  special  reason,  suits 
previously  instituted  has  been  held  by  a  Circuit  Court  of  Ap- 
peals.20  A  clause  in  an  order  appointing  a  receiver  of  property 
of  a  corporation  which  restrains  the  defendant  and  other  per- 
sons from  interfering  with  or  assuming  control  of  the  claims 
and  causes  of  action  of  the  company,  does  not  prevent  the  prose- 
cution of  a  previous  suit  by  stockholders  against  the  defendant 
and  its  directors  to  enforce  a  cause  of  action  held  by  the  company 
against  the  latter.^i    When  a  creditor  of  a  corporation  has  begun 

15  Equitable  Trust  Co.  V.  Western  19  Judicial  Code  §66;  see  §314 
Pac.  Ey.  Co.,  231  Fed.  478.  infra. 

16  Security  luv.  Co.  of  Pitts,  v.  20  Central  Trust  Co.  v.  Chicago 
First  Nat.  Bauk  of  Beaumont,  Tox.  Ey.  &  Tr.  Co.,  C.  C.  A.,  224  Fed. 
C.  C.  A.,  203  Fed.  632.  706,  in  -n-hich  the  author  was  coun- 

17  Equitable   Trust   Co.    of   N.   Y.  sel. 

V.  PoUitz,  C.  C.  A.,  207  Fed.  74.  21  Am.  Steel  Foundries  v.  Chicago 

18  Westinghouse  Elec.  &  Mfg.  Co.  Ey.  &  Tr.  Co.,  231  Fed.  1003,  in 
V.    Binghamton    Ey.    Co.,    255    Fed.       which  the  author  was  counsel. 

378. 


§271] 


AGAINST    CRIAIIXAf,    PROCEEDINGS 


1841) 


proceedings  in  a  Federal  court  to  enforce  lii.s  claim  against  the 
corporation,  the  defendant  corporation  may  be  enjoined  "from 
taking  proceedings  for  its  own  dissolution,  or  for  the  appoint- 
ment of  a  receiver  of  its  effects,  or  for  the  distribution  thereof 
among  its  stockholders  and  any  other  persons,  and  from  making 
any  distribution  or  transfer  of  any  of  its  effects. ' '  22  Where  suits 
were  pending  in  the  State  and  Federal  courts  by  the  same  plain- 
tiff against  several  insurers,  whose  liability  was  proportionate  to 
the  amount  the  insuiance  of  each  bore  to  the  whole  loss,  and  the 
same  defenses  had  l)een  interposed  on  behalf  of  all,  it  was  held : 
that  a  Federal  court  could  not  grant  an  injunction  to  restrain  the 
actions  in  the  State  courts,  as  well  as  those  in  the  Federal  courts, 
upon  a  bill  seeking  an  adjustment  of  their  liability  in  a  single 
suit. 2^ 

§  271.  Injunctions  ag-ainst  criminal  proceedings.  As  a  gen- 
eral rule,  a  couit  of  equity  cannot  grant  an  injunction  to  forbid 
the  prosecution  in  any  court,  State  or  Federal,  of  criminal  pro- 
ceedings, whether  then  pending,^  or  subsequently  begun  ;  2  nor 
against  a  removal  from  ofifiee.  State  ^  or  Fedei-al.*  A  Federal 
court  has  the  power  to  enjoin  a  State  Attorney-Goiieral  or  other 
prosecuting  officer.^  or  a  District  Attorney  of  the  United  States  « 

L.  erl.  535,  536;  Davis  v.  Amerit-an 
Society  for  the  Prevention  of  Crut-i 
ty  to  Animals,  75  N,  Y.  362;   City 
of     Baiubridge     v.      Reynolds,      ]  1 
Georgia,  758,  36  S.  E.  935. 

3  In    re    Sawyer,    124   IT,    S.    2 
■51   L.  ed.  402;   People  ex  rel.  Corsca- 
don  V.  Howe,  177  N.  Y.  490. 

4  White   V.  Berry,   171    U.   S.   :{(i(i 
4;;  L.  ed.  199;  White  v.  Butl.T,   1 
U.   S.   379,  43  L.  ed.  204. 

6  Ex  parte  Youug,  209  IT.  S.  12.i 
1G1-16;5,  52  L.  ed.  714,  729,  735 
supra,  ilO^h;  Little  v.  Taunerl, 
208  Fed.  605;  Grand  Union  Tia 
Co.  V.  Evans,  216  Fed.  791  ;  Van 
Deman  &  Lewis  Co.  v.  Rostni,  2 II 
Fed.  827;  Raieh  v.  Truax,  219  Fed 
273,  aff'd  239  IT.  S.  33;  Wiseman 
V.  Tanner,  221  Fed.  694;  Evansville 
Brewing  Ass'n  v.  Excise  Commis- 
sion  of  Jefferson   Connty,   225   Fed. 


22Fisk  v.  Railroad  Co.,  10 
Blatchf.  518.  But  see  Kessler  v. 
Continental  C.  &  I.  Co.,  42  Fed. 
258;  Window  Glass  Maeh.  Co.  v. 
New  Bethlehem  Window  Glass  Co., 
C.  C.  A.,  264  Fed.  822. 

23  Rochester  German  Ins.  Co.  v. 
Schmidt,  C.  C.  A.,  175  Fed.  720; 
reversing  126  Fed.  998. 

§  271.  1  Lord  Montague  v.  Dud- 
man,  2  Ves.  Sr.  396;  In  re  Sawyer, 
124  U.  S.  200,  31  L.  ed.  402;  Hark- 
rader  v.  Wadley,  172  IT.  S.  148,  169. 
43  L.  ed.  399,  406;  Fitts  v.  McGhee, 
172  IT.  S.  516,  517,  43  L.  ed.  535, 
536;  Davis  v.  American  Society  for 
the  Prevention  of  Cruelty  to  Ani 
mnls,  75  N.  Y.  362;  City  of  Bain- 
bridge  V.  Reynolds  (Georgia),  3f)  S 
E.  935. 

2Harkrader  v.  Wadley,  172  1'.  ' 
148,  169,  43  L.  ed.  399,  406;    FiM 
V.   McGhee.  172  U.   S.   516.  517,  43 
Fed.  Prac.  Vol.  11—15 


1350 


INJUNCTIONS 


[§271 


from  enforcing  a  statute  which  is  unconstitutional  or  from  act- 
ing under  color  of  a  valid  statute  in  an  unauthorized  manner 
which  is  injurious  to  the  property  rights  of  the  complainant.' 
But  it  cannot  enjoin  from  proceeding  under  an  erroneous  con- 
struction of  a  valid  statute.^  When  a  criminal  indictment  or 
criminal  proceeding  is  brought  to  enforce  an  alleged  unconsti- 
tutional statute,  which  is  the  subject  matter  of  inquiry  in  a  suit 
already  pending  in  a  Federal  court;  the  latter  court,  having 
first  obtained  jurisdiction  over  the  subject-matter,  has  the  right, 
even  in  a  criminal  case,  to  hold  and  maintain  such  jurisdiction, 
to  the  exclusion  of  all  other  courts,  until  its  duty  is  fully  per- 
formed; and  it  may  enjoin  the  State  Attorney-General  or 
other  prosecuting  officers,^  from  instituting  a  criminal  pro- 
ceeding in  such  a  case,  especially  when  the  injunction  is  neces- 
sary to  prevent  irreparable  injury  to  the  complainant's  busi- 
ness or  property;  but  it  cannot  enjoin  any  investigation  of  action 
by  a  grand  jury,  nor  restrain  a  State  court  from  acting  in  any 
case  brought  before  it,  either  of  a  civil  or  criminal  nature.^" 
The  same  rule  applies  to  criminal  proceedings  iiLstituted  under 
an  invalid  municipal  ordinance.^^ 


204;    American   Sugar   Refining   Co. 
V.  M'Farland,  229  Fed.  284. 

6  Hammer  v.  Dagenhart,  247  T' 
S.  251,  38  Sup.  Ct.  529,  62  L.  cd. 
1101;  Jacob  HofFman  Brewing  Co 
V.  McElligott,  259  Fed.  525,  527. 
supra,  §§100,  105c;  Weyman-Bru- 
tan  CI.  V.  Ladd,  C.  C.  A.,  231  Fed 
898. 

7  Ibid. 

8  Arbuekle    v.    Blackburn,     ('. 
A.,  113  Fed.   616;   Central  Consr 
ers'   Co.   V.   Austin,   238    Fed.    616: 
Jacob  Hoffman  Brewing  Co.  v.   i\i 
Elligott,  C.  C.  A.,  259  Fed.  525. 

9  Ibid,  Ex  parte  Young,  209  V. 
S.  123,  161-163,  52  L.  ed.  714,  729 
730  and  cases  cited. 

10  McNeill    V.    Southern    Ry.    C 
202  U.  S.  543,  50  L.  ed.  1142;  Mis- 
sissippi Railroad  Commission-  v.  Illi 
nois  Cent.  R.  R.  Co.,  203  U.  S.  335 
51  L.  ed.  209;  Ex  parte  Young,  20: 


U.  S.  123,  161-163,  52  L.  ed.  714 
729,  730;  Hunter  v.  Wood,  209  U. 
S.  205,  52  L.  ed.  747.  See  also 
Smyth  V.  Ames,  169  U.  S.  466,  42 
L.  ed.  819;  Dobbins  v.  Los  Angeles, 
195  U.  S.  223,  49  L.  ed.  169;  Palis 
Brewing  Co.  v.  Crenshaw,  120  Fed. 
144. 

11  Dobbins  v.  Los  Angeles,  195  U. 
S.  223,  241,  49  L.  ed.  169,  177; 
Hutchinson  v.  Beckham,  C.  C.  A., 
118  Fed.  399;  Palatka  Water 
Works  V.  Palatka,  127  Fed.  161; 
Glucose  Refining  Co.  v.  Chicago,  138 
Fed.  209.  See  §§  25,  105,  mpra. 
Injunctions  were  granted  when  the 
enforcement  of  the  ordinance  tend  d 
to  destroy  plaintiff's  business. 
Jewel  Tea  Co.  v.  Lee's  Summit,  Mo., 
198  Fed.  532.  Contra,  Christian 
Moerlein  Brewing  Co.  v.  Hill,  166 
Fed.  140;  Moss  &  Co.  v.  McCarthy, 
191    Fed.   202,  a   bucket-shop   case; 


§  271a]    \GAINST  ENFORCEMENT  OF   MUNICIPAL  OKDINANCE  1:351 

Where  the  State  hiw  gives  an  opportunity  to  test  the  validity 
of  an  order  of  a  State  board  by  appeal  or  otlier  proceedings  in 
the  State  tribunals,  a  Federal  court  of  equity  will  usually  not 
interfere.*^ 

It  has  been  held :  that  vvhere  no  irreparable  injury  is  shown, 
an  injunction  may  issue  against  proceedings  to  impose  a  fine 
for  the  non-payment  of  a  tax,  in  order  to  prevent  a  multiplicity 
of  suits.^^ 

"A  court  of  equity  has  no  general  power  to  enjoin  or  stay 
criminal  proceedings  unless  they  are  instituted  ])y  a  party  to 
a  suit  already  pending  before  it,  and  to  try  the  same  right  that 
is  in  issue  there,  or  to  prohibit  the  invasion  of  the  rights  of 
property  by  the  enforcement  of  an  unconstitutional  law."^* 

"This  court,"  said  Lord  Hardwicke,  speaking  of  the  Court 
of  Chancery,  "has  no  jurisdiction  to  stay  proceedings  on  a 
mandamus ;  nor  to  an  indictment ;  nor  to  an  information ;  nor 
to  a  writ  of  prohibition,  that  I  know  of,"^^  But  it  has  been 
held  that  a  Federal  court  may  enjoin  a  State  officer  from  an  act, 
although  an  application  is  then  pending  for  a  mandamus  to 
compel  him  to  perform  it,  and  it  was  said  that  the  injunction 
would  be  a  defense  to  the  mandamus  proceedings.^® 

§  271a.  Injunction  against  the  enforcement  of  municipal  or- 
dinances. Ordinarily  a  Federal  court  will  not  enjoin  the  pas- 
sage of  a  municipal  ordinance  except  perhaps  under  extraor- 
dinary circumstances ;  ^  even  though  the  enactment  would  be  an 
impairment  of  the  obligation  of  a  contract.''    For  this  would  be 


Yee-Gee   v.    City   &   County   of   San 
Francisco.  2.'?.5  Fed.   7o7. 

12  Gulf,  Colorado,  &c.  Ey.  v. 
Texas,  246  U.  S.  59,  supra,  §§  lOoc. 
d.  But  see  Post  Printing  &  Puli. 
Co.  V.  Brewster,  246  Fed.   321. 

13  Chicago  v.  Collins,  175  111.  445, 
49  L.E.A.  408,  67  Am.  St.  Rep.  224. 
But  see  supra,  §§11,  12;  infra, 
§  271b. 

14  Brown,  J.,  in  Davis  &  Farnum 
Mfg.  Co.  V.  Los  Angeles,  189  U.  S. 
207,  217,  47  L.  ed.  778,  780. 

16  Lord  Montague  v.  Dudhani,  2 
Vesey  Sr.  .-^Pe,  .•?98. 


16  Bank  of  Kentucky  v.  Stone,  88 
Fed.  nss,  398. 

§  271a.  1  Gas  &  Electric  Securi- 
ties Co.  V.  Manhattan  &  Queens 
Traction  Corp.,  C.  C.  A.,  2ud  Ct. 
A.  D.  1920,  Fed.  . 

2Il,id.;  New  Orleans  Water 
Works  Co.  V.  New  Orleans,  164  U. 
S.  471,  41  L.  ed.  518;  Murphy  v. 
East  Portland,  42  Fed.  308;  Mo. 
&  K.  I.  Ry.  Co.  T.  Olathe,  156  Fed. 
624 ;  Stevens  v.  St.  Mary 's  Training 
School,  144  111.  336;  Pes  Moines 
Gas  Co.  v.  Des  Moines,  44  Iowa  505. 
supra,  §  263a. 


1352 


INJUNCTIONS 


[§  271b 


an  interference  with  legislative  discretion.^  Moreover,  the  in- 
validity of  the  ordinance  will  prevent  its  passage  unaccompa- 
nied by  a7i  attemjit  to  carry  it  into  execution  bj'  giving  to  the 
complainant  a  legal  grievance.* 

A  Federal  court  of  equity  will  in  a  proper  case  enjoin  'a  city 
from  enforcing  an  unconstitutional  ordinance :  reducing  the 
charges  made  by  a  person  acting  in  a  public  employment,  such 
as  a  street  railroad  company  or  a  water  company ;  even  when 
there  is  no  impairment  of  the  obligation  of  a  contract  if  a  viola- 
tion subjects  the  complainant  to  a  penalty  at  the  suit  of  each 
of  its  customers  and  the  rates  are  so  low  as  to  take  its  property 
without  due  process  of  law.^  It  ma}"  set  aside  and  declare  null 
and  void  a  municipal  ordinance  which  impairs  the  operation  of  a 
contract  with  the  complainants,  when  the  invalidity  of  the  ordi- 
nance does  not  appear  upon  its  face,  but  must  be  proved  by 
evidence  aliunde,  and  is  a  cloud  upon  the  title  of  the  complain- 
ants to  a  franchise,^  or  restrain  the  removal  of  a  railroad  from  a 
street  which  is  directed  by  an  illegal  ordinance.''^  The  danger 
of  a  multiplicity  of  criminal  proceedings,  combined  with  ir- 
reparable injury  to  business,  may  sustain  jurisdiction  over  a 
bill  to  enjoin  the  enforcement  of  an  ordinance  imposing  a  license 
tax,'  or  a  penalty  for  an  act  that  is  not  unlawful.*  If  an  ordi- 
nance is  within  the  power  of  the  enacting  body  and  not  ob- 
noxious to  the  State  or  Federal  Constitution,  its  wisdom  or  pro- 
priety cannot  be  questioned  by  the  courts.^** 

§  271b.  Injunctions  against  assessments  and  collection  of 
taxes  and  betterments.  A  Federal  court  of  equity  may  enjoin 
the  assessment  ^  or  collection  ^  of  a  tax  ^  or  of  an  assessment  for 
a  betterment*  when  the  assessment  of  either  would  constitute 


3  Ibid. 
4Ibid. 

5  Knoxville  Gas  Co.  v.  City  of 
Knoxville,   C.   C.  A.,   261  Ted.   283. 

6  Los  Angeles  \.  Los  Angeles  City 
Water  Co.,  177  U.  S.  558,  568,  580, 
44  L.  ed.  886,  890,  896. 

1  Seaboard  Airline  Ey.  Co.  v.  City 
of  Raleigh,  219  Fed.  573. 

8  McCormack  Bros.  Co.  v.  City  of 
Tacoma,  201  Fed.  374;  Seaboard 
Airline  Co.  v.  City  of  Raleigh,  219 
Fed.  573. 


9  Borden 's  Condensed  Milk  Co.  v. 
Baker,  C.  C.  A.,  177  Fed.  906. 

10  Seaboard  Airline  Co.  v.  City  of 
Raleigh,  219  Fed.  573. 

§  271b.  1  Wilson  v.  Lambert,  168 
U.  S.  611,  42  L.  ed.  599. 

2  Union  Pae.  Ry.  Co.  v.  Cheyenne, 
113   U.  S.   516,  28   L.  ed.   1098. 

3  Raymond  v.  Chicago  Union  Trac- 
tion Co.,  207  U.  S.  20,  39,  52  L.  ed. 
78,  88. 

4  Wilson  V.  Lambert,  168  U.  S. 
611,  42  L.  ed.  599. 


§  271b]      AGAINST  ASSESSMENT  AND  COLLECTION  OE  TAXES  LS-").'} 


a  cloud  on  the  title  to  real  estate  in  which  the  complainant 
has  an  interest,**  or  the  collection  would  lead  to  a  multiplicity 
of  .suits,6  or  would  in-oduce  irreparable  injury  for  which  a  court 
of  law  could  af!'ord  no  ade(iuate  remedy  '  or  when  the  assess- 


6  Ohio  Tax  cases,  232  U.  S.  576; 
Greene    v.    Louis.    &   TnterurVian    1\. 
R.   Co.,   244   U.   S.  499;    Sanford   v. 
Gregg,  58  Fed.  620 ;  Taylor  v.  Louis- 
ville &  N.  R.  Co.,  C.  C.  A.,  88  Fed. 
350,    358;    Kansas    City,    Ft.    S.    & 
M.   R.   Co.   V.   King,    C.    C.   A.,    120 
Fed.  611;  Fargo  v.  Hart,  193  U.  S. 
490,  503,  48  L.   ed.   761,   767;   Ray- 
mond   V.    Chicago    Union     Traction 
Co.,    207   U.    S.    20,    52    L.    ed.   78; 
Taylor    v.    Louisville   &   N.   R.    Co., 
88    Fed.   3.50;    Hutchinson    v.   Beck- 
ham,   C.    C.   A.,    118   Fed.    399.      In 
Shelton    v.    Piatt,    139    U.    S.    591, 
596,   597,  35  L.  ed.   273,   276,  277. 
6  Union  Pac.  Ry.  Co.  v.  Cheyenne, 
113  U.  S.  516,  28  L.  ed.  1098.    Pac. 
Exp.    Co.    v.    Seibert,   44    Fed.    310, 
313,   per   Caldwell,    J.     Except   un- 
der     extraordinary      circumstances. 
It  has  been  said:     "It  is  real  and 
not  imaginary   suits,   it   is  probable 
and   not    possible    danger   of   multi- 
plicity   of   suits,    that   will    warrant 
the    assumption    of    jurisdiction    on 
that   ground.      While   it   is   true,   as 
the  plaintiff  contends,  that  the  State 
might  bring  a  separate  suit  for  each 
day's  penalty"  for  failure  to  pay  a 
tax,  "the  court  would  hardly  be  jus- 
tified  in   acting   on   the   assumption 
that  it  would  do  so.     The  State  is 
not  to  be  looked  upon  in  the  light  of 
a   barrator,   and   the   court  will   not 
impute  to  it,  or  to  its  oflBcers  acting 
in   its   name,    a   litigious   or   vindic- 
tive  spirit,   or  a  purpose  needlessly 
to   vex  and   harass  the   citizen  with 
lawsuits.      Whatever    the    rule    may 
be   in   the   ease  of  natural  persons, 
the  court  will  presume  that  a  State 


is  incapable  of  such  a  vulgar  passion 
and,  until  the   fact   is  shown   to   be 
otherwise,   will   act   on   the   assump- 
tion that  a  State  will  not  bring  any 
more  suits  than  are  fairly  necessary 
to      establish      and      maintain      its 
rights. ' '     Dundee   Mtg.   T.  Ins.  Co. 
V.    School    District,    29    Fed.    359; 
Cummings    v.    National    Bank,    101 
U.  S.  153,  156,  25  L.  ed.  903,  904; 
Greene    v.    Louisville    &    Interurban 
R.   R.    Co.,   244   U.    S.   499;    Taylor 
V.  Louisville  &  N.  R.  Co.,  C.  C.  A., 
88  Fed.   350,   357;    Sanford  v.   Poc, 
C.  C.  A.,  60  L.  R.  A.  641,  69  Fed. 
546;     Raymond    v.    Chicago    Union 
Traction  Co.,  207   U.   S.  20,   39,   52 
L.  ed.  78,  88.     But  see  City  Coun- 
cil   of    Augusta    V.    Timmerman,    C. 
C.  A.,  233  Fed.  216. 

7  Fargo  v.  Hart,  193  U.  S.  490, 
503,  48  L.  ed.  766,  767;  Union  Pac 
R.  R.  Co.  V.  Weld  County,  247  U. 
S.  283.  Nevada-California  Power 
Co.  V.  Hamilton,  235  Fed.  317,  319. 
Lancaster  v.  Police  Jury,  254  Fed. 
179. 

In  Shelton  v.  Piatt,  139  U. 
S.  591,  .596.  597,  35  L.  ed.  273, 
whore  the  only  jurisdictional  aver- 
nuMits  were  "that  the  property 
of  the  United  State's  Express 
Company  in  Tennessee  is  em- 
jtloyed  in  interstate  commerce  in 
tlie  said  express  business,  and  neces- 
sary to  the  conduct  of  it;  that  if 
seized  by  the  said  sheriff  it  will 
greatly  embarrass  the  company  in 
the  conduct  of  such  business,  and 
sul)ject  it  to  heavy  loss  and  dam- 
age, and  the  public  served  by  it  to 
great  loss  and  inconvenience"  and 


1854 


INJUNCTIONS 


[§  271b 


ment  as  made  by  a  fraud  of  which  equity  might  take  cognizance  ^ 
such  as  an  intentional  and  systematic  under  valuation  of  other 
taxable  property,^  but  not  if  the  over  valuation  of  the  complain- 
ant 's  property  was  made  in  good  faith ;  ^°  or  where  after  the 
collection  of  a  tax  has  been  enjoined  because  its  assessment 
violates  constitutional  rights  a  similar  assessment  is  made  for 
the  succeeding  year.^^  It  has  been  held  that,  injunctions  in  such 
cases  also  lie  when  authorized  by  State  statutes.^^  Where  a 
corporation  is  under  a  legal  obligation  to  pay  taxes  assessed 
upon  its  stockholders  that  may  be  a  sufficient  reason  for  its 
obtaining  equitable  relief.^^  Otherwise  an  injunction  will  not 
be  granted  to  restrain  the  collection  of  taxes  except  under 
extraordinary  circumstances. 


"that  your  orator  and  the  "United 
States  Express  Company  are  with- 
out adequate  remedy  at  law  in  the 


premises; 


it  was  held  that  no  in- 


junction should  issue.  There,  how- 
ever, the  State  law  authorized  the 
recovery  of  the  taxes  after  pay- 
ment if  their  illegality  was 
established.  See  Allen  v.  Pullman's 
Palace  Car  Co.,  139  U.  S.  658,  35 
L.  ed.  303.  See  also  Keithsburg 
Bridge  Co.  v.  McKay,  42  Fed.  427; 
Pacific  Exp.  Co.  v.  Seibert,  44  Fed. 
310;  Hoey  v.  Coleman,  46  Fed.  221, 
223. 

8  Johnson  v.  Wells  Fargo  &  Co., 
239  U.  S.  234;  First  Nat.  Bank  v. 
Douglass  County,  3  Dill.  298;  Union 
Pac.  E.  Co.  v.  MeShane,  3  Dill.  303, 
312 ;  Atchison,  T.  &  S.  F.  Ey.  Co.  v. 
Sullivan,  C.  C.  A.,  173  Fed.  456,  but 
see  Nye,  Jenks  &  Co.  v.  Washburn, 
125  Fed.  817.  But  see  Union  Pac. 
E.  Co.  V.  Board  of  Com'rs,  C.  C. 
A.,  217  Fed.  540. 

9  Greene  v.  Louisville  &  Inter  ur- 
ban E.  E.  Co.,  244  U.  S.  499;  Atch- 
inson,  T.  &  S.  Ey.  Co.  v.  Sullivan, 
C.  C.  A.,  173  Fed.  456. 

10  Lacy  V.  McCafferty,  C.  C.  A., 
215  Fed.  352;   Illinois  Cent.  E.  Co. 


V.  Mississippi  Eailroad  Commission, 
229  Fed.  249. 

H  Johnson  v.  Wells  Fargo  &  Co., 
239  U.  S.  234;  affirming  Wells  Far- 
go &  Co.  v.  Johnson,  C.  C.  A.,  214 
Fed.  180. 

12Mudge  V.  McDougall,  220  Fed. 
563.  Contra,  Illinois  License  Co. 
V.  Newman,  141  Fed.  449.  See 
Stonebraeker  v.  Hunter,  C.  C.  A., 
215  Fed.  67,     See  supra,  §  82. 

13  Detroit,  O.  H.  &  M.  Ey.  Co. 
v.  Fuller,  205  Fed.  86;  Cummings 
V.  National  Bank,  101  U.  S.  153, 
157,  25  L.  ed.  903,  904;  San  Fran- 
cisco Nat.  Bank  v.  Dodge,  197  U. 
S.  70,  75,  113,  49  L.  ed.  669,  672, 
688 ;  Eaymond  v.  Chicago  Union 
Traction  Co.,  207  U.  S.  20,  39,  52 
L.  ed.  78,  88;  Atchison,  T.  &  S. 
F.  Ey.  Co.  v.  Sullivan,  C.  C.  A., 
173  Fed.  456;  Hannewinkle  v. 
Georgetown,  15  Wall.  457,  21  L.  ed. 
231;  Dows  v.  Chicago,  11  Wall.  108, 
20  L.  ed.  65;  State  Eailroad  Tax 
Cases,  92  U.  S.  575,  23  L.  ed.  669; 
Milwaukee  v.  Koeffler,  116  U.  S. 
219,  29  L.  ed.  612;  Pittsburg,  etc., 
Ey.  Co.  v.  Board  of  Public  Works, 
1 72  U.  S.  32,  43  L.  ed.  354 ;  Indiana 
Mfg.   Co.  v.  Koehne,  23  S.  Ct.  452, 


I 


1 


§  271b]      AGAINST  ASSESSMKXT  AND  COLLECTION-  OF  TAXES  1355 

Wlieii  the  fiTouiul  of  the  injunction  is,  that  otherwise  a  cloud 
would  be  east  on  the  title,  that  bill  must  eontain  a  specific  aver- 
ment that  the  complainant  owns  or  holds  an  interest  in  real 
estate.15  Where  the  complainant's  property  was  by  law  exempt, 
since  the  invalidity  of  the  assessment  was  consequently  appa- 
rent on  its  face,  an  injunction  was  denied. ^^ 

Where  the  tax  illegally  assessed  was  divided  along  different 
local  subdivisions  so  thatr  thirty-five  suits  would  be  required  to 
obtain  relief  at  common  law,  equity  granted  the  relief."  So, 
where  part  of  the  money  was  paid  to  the  State  which  could  not 
be  sued,  and  to  recover  the  rest  required  suits  against  three  or 
four  officers.^*  So,  in  the  case  of  discrimination,  in  valuation, 
where  the  assessments  upon  the  property  under  value  could  not 
be  increased  without  making  more  than  a  thousand  owners 
parties.^' 

Where  a  suit  in  a  State  court  is  iiecessary  to  collect  the  tax, 
its  defense  by  the  tax  payer  gives  him  an  adequate  remedy ,2" 
unless  the  penalties  for  delay  in  payment  are  so  great  to  afford 
independent  ground  of  equitable  relief.^^  Where  there  was  an 
ample  remedy  in  the  State  law,  by  an  action  against  a  single 
officer  to  recover  an  illegal  tax  after  its  payment  "2  or  by  cer- 


188    U.    S.    681,    47    L.     ed.    651; 
Mudge  V.  McDougall,  222  Fed.  56;{. 

15  Indiana  Mfg.  Co.  v.  Koehne, 
188  U.  S.  681;  Risley  v.  City  of 
Utica,  173  Fed.  502. 

16  City  Couueil  of  Augusta  v. 
Timmerman,  C.  C.  A.,  233  Fed.  216. 

17  Taylor  v.  Louisville  &  N.  R. 
Co.,  C.  C.  A.,  88  Fed.  350,  356, 
358;  Taylor  v.  Louisville  &  N.  B. 
Co.,  C.  C.  A.,  88  Fed.  350,  356,  358. 
Cf.  Sanford  v.  Poe,  C.  C.  A.,  69 
Fed.  546,  60  L.R.A.  641;  Ogdnu 
City  V.  Armstrong,  168  U.  S.  224, 
42  L.  ed.  444.     See  §  25,  supra. 

18  Raymond  v.  Chicago  Union 
Traction  Co.,  207  U.  S.  20,  39,  52 
L.  ed.  78,  88;  Cf.  Atchison,  T. 
&  S.  Ry.  Co.  v.  Sullivan,  C.  C.  A., 
173  Fed.  456;    Union  Pac.  Ry.  Co. 


V  Weld  County,  247  U.  S.  282; 
Mayor,  etc.,  of  Jersey  City  v.  Cen- 
tral R.  Co.  of  N.  J.,  C.  C.  A.,  212 
Fed.  76. 

19  Mayor,  etc.,  of  Jersey  City  v. 
Central  R.  Co.  of  N.  J.,  C.  C.  A., 
212  Fed.  76. 

20  Union  Sulphur  Co.  v.  Bird,  249 
U.  S.  172. 

21 U.  S.  R.  S.,  §3224;  Snyder  v. 
Marks,  109  U.  S.  189,  27  L.  ed. 
901.  But  see  Pollock  v.  Farmers' 
L.  &  T.  Co.,  157  U.  S.  429,  .".9  L. 
ed.   759;   infra.   §§  105,  284. 

22  Dalton  Adding  Machine  Com- 
pany V.  State  Corporation  Commis- 
sion, 236  U.  S.  699;  Union  Pac. 
R.  Co.  V.  Board  of  Com'rs,  C.  C. 
A.,  217  Fed.  540. 


I 


1356 


INJUNCTIONS 


[§272 


tiorari,23  or  appeal  to  a  State  board ;  ^^  the  court  refused  to 
interfere. 

No  injunction  will  lie  against  the  assessment  or  collection  of 
an  internal  revenue  tax  imposed  by  the  United  States.^* 

Delay  pending  litigation  in  the  State  courts  to  set  aside  the 
assessment  upon  other  grounds  and  subsequent  negotiate  for  a 
settlement  of  the  controversy  is  a  sufficient  excuse  for  delay  in 
seeking  the  injunction. ^^ 

§  272.  Injunctions  to  restrain  the  alienation  of  property.  In- 
junctions may  be  obtained  to  prevent  the  alienation  of  property 
"where  it  would  work  irremediable  or  gross  injustice."^  An 
injunction  will,  therefore,  issue  to  prevent  the  transfer  of  notes, 
bills  of  exchange,  and  other  documents,  whether  negotiable  or 
not,  whose  possession  gives  their  holder  a  presumptive  title  to 
the  rights  which  they  evidence,^  when  obtained  from  the  plain- 
tiff by  the  defendant  through  duress,  fraud,  or  other  iniquity; 
or  when  forged ;  ^  or  when,  though  the  holder  may  have  prop- 
erly obtained  them,  he  threatens  or  is  about  to  use  them  in  an 
ine([uitable  manner.*  To  restrain  a  receiver  of  a  national  bank, 
pending  a  determination  of  a  preferential  claim  to  a  fund,  from 
transmitting  the  same  to  the  treasurer  of  the  United  States; 
whence  it  could  not  be  recovered  by  compulsory  process.^  An 
injunction  may  be  granted  to  prevent  a  party  from  making 
vexatious  alienations  of  land  pending  a  suit  concerning  the  title 
to  the  same.^  For  it  w^as  said  that,  otherwise,  the  plaintiff 
might  be  put  to  the  expense  of  making  each  vendee  or  grantor  a 


23  Spencer  v.  Babylon  E.  Co.,  C. 
C.  A.,  250  Fed.  24. 

24  Puffer  Mfg.  Co.  v.  Eobertson, 
C.  C.  A.,  248  Fed.  46.3,  for  a  case 
where  such  an  appeal  was  held  not 
to  afford  an  adequate  remedy  see 
Grene  v.  Louisville  &  Interurban  R. 
H.  Co.,  244  U.  S.  499. 

25  IT.  S.  E.  S.,  §3224,  Comp.  St., 
§  3901,  supra,  §  100a. 

26  Mayor,  etc.,  of  Jersey  City  v. 
Central  R.  Co.  of  N.  J.,  C.  C.  A., 
212  Fed.  76   (a  delay  of  15  years). 

§272.     1  Story's   Eq.   Jur.,    §  95.S. 

2  0sborn  v.  U.  S.  Bank,  9  Wheat. 

738,   845,  6  L.   ed.  204,  229;   Lloyd 


V.  Gurdon,  2  Swanst.  180;  Hood  v. 
Aston,  1  Euss.  412;  Lord  Chedworth 
V.  Edwards,  7  Ves.  46;  Eeeve  v.  Per- 
kins, 2  J.  &  W.  390;  Schermerhorn 
V.  L  'Espenasse,  2  Dall.  360,  1  L.  ed. 
415. 

SEsdaile  v.  La  Nauze,  1  Y.  &  C. 
394. 

4  Anon.,  6  Madd.  10. 

6  American  Can  Co.  v.  Williams, 
C.  C.  A.,  149  Fed.  200. 

6  Daly  v.  Kelly,  4  Dow.  417; 
Echliff  V.  Baldwin,  16  Ves.  267. 
But  see  Turner  v.  Wight,  4  Beav. 
40. 


i 


§273] 


TO    PREVENT    WASTE 


1357 


party  to  the  prooeedinnrs;  and,  at  all  eveuts,  his  title,  if  he  pre- 
vails in  the  suit,  may  be  embarrassed  by  the  new  outstanding 
claims  of  title  under  the  threatened  transfer;''  but  where  the 
filinfT  of  the  hill  constituted  notice  of  lis  pendens  such  an  in- 
junction was  denied  although  the  plaintiff  had  failed  to  record 
a  notice  under  the  State  law.^ 

The  sale  or  transfer,^  or  removal  beyond  the  jurisdiction  of 
the  court, ^®  of  a  chattel,  the  loss  of  which  could  not  be  compen- 
sated in  damages  may  also  be  thus  restrained;  and  so  has  been 
the  sale  of  other  personal  property, ^^  including  a  patent, ^^  and 
ore  from  a  mine  ^'  pending  a  suit  affecting  the  same.  An  in- 
junction was  granted  forbidding  the  defendants  from  buvinor 
ore  taken  from  the  complainants  mines.^*  Injunctions  have 
also  been  granted  at  the  suit  of  a  part-owner  to  prevent  the  sail- 
ing of  a  ship  until  his  share  could  be  ascertained,  and  a  bond 
given  to  secure  him  against  loss  upon  the  voyage ;  ^*  to  prevent 
the  removal  of  timber  wrongfully  cut  down ;  ^^  and  to  prevent 
the  trustees  of  a  dissenting  chapel  from  api)ointiug  as  a  min- 
ister a  person  not  duly  qualified  according  to  its  constitution.*' 

§273.  Injimctions  to  prevent  v^aste.  An  injunction  will 
issue  to  prevent  waste,  Mhether  legal  or  purely  equitable.* 
AVaste  is  a  permanent  injury  to  real  estate  committed  by  a  per- 


7Danieirs  Ch.  Pr.  (2d  Am.  ed.) 
1873. 

8  Zander  v.  Phillips,  C.  C.  A.,  213 
Fed.  29. 

9  Gibson  v.  Lewis,  11  Phila.  (Pa.) 
476;  Lady  Arundell  v.  Phipps,  10 
Ves.  139;  Daniell's  Ch.  Pr.  (2d  Am. 
ed.)  1872. 

10  Green  r.  Hanberry,  2  Brock. 
403;  Haly  v.  Goodson,  2  Mer.  77; 
Christie   v.    Craig,    2    Mer.   137. 

11  Bateau  v.  Bernard,  3  Blatchf. 
244;  Higgins  v.  Jenks,  3  Ware,  17; 
High  on  Injunctions,  (4th  ed.) 
§  1499. 

12  United  Wireless  Tel.  Co.  v.  Nat. 
El.  Signaling  Co.,  C.  C.  A.,  198  Fed. 
385. 

13  Montana  Min.  Co.  v.  St.  Louis 
Min.  &  Mill.  Co.  of  Montana,  C.  C. 
A.,   168   Fed.   514. 


14  Goldfield  Consol.  Mines  Co.  v. 
Eichardson,  194  Fed.  109.  But  see 
Daniels  v.  Portland  Mining  Co.,  C. 
C.  A.,  202  Fed.  637. 

15  Haly  v.  Goodson,  2  Mer.  77 ; 
Christie  v.  Craig,  2  Mer.  137.  But 
see  Wilkinson  v.  Dobbie,  12  Blati-hf. 
298. 

16  Bradley  v.  "Roed,  2  Pittsb. 
(Pa.)  519:  Anon.,  1  Ves.  Sr.  93; 
Daniell's  Ch.  Pr.   (2d  Am.  ed.)  1874. 

"Milligan  V.  Mitchell,  1  M.  &  K. 
446. 

§  273.  1  Garth  v.  Cotton.  1  Dick. 
183;  Thruston  v.  Mustin,  3  Cranch, 
C.  C.  335;  U.  S.  v.  Gear,  3  How. 
120,  11  L.  ed.  523;  Fletcher  v.  N. 
0.  N.  E.  R.  Co.,  20  Fed.  345;  Lanier 
V.  Alison,  31  Fed.  100;  Bispham 's 
Eq.,  §§  429-432. 


1358 


INJUNCTIONS 


[§273 


son  ill  possession  witli  a  limited  interest  in  the  same.  Legal 
waste  consists  of  such  acts  as  would  be  considered  waste  at 
common  law ;  equitable  waste,  of  such  acts  as  at  law  would  not, 
under  the  circumstances  of  the  case,  be  considered  waste,  but 
which  are  so  esteemed  in  the  view  of  a  court  of  equity,  from 
their  manifest  injury  to  the  inheritance,  though  not  inconsistent 
with  the  legal  rights  of  the  party  committing  them.^  Such  is 
wilful  and  wanton  injury  to  land  committed  by  a  tenant  with- 
out impeachment  for  waste.^  The  interference  of  equity  in 
cases  of  this  kind  is  justified,  not  only  by  the  fear  of  irreme- 
diable injury,  but  also  because  the  tenant  for  life  or  years  is 
considered  to  stand  in  a  trust  relation  toward  the  remainder- 
man. So  anxious  is  equity  to  prevent  waste,  that  it  has  sus- 
tained a  bill  praying  such  an  injunction  filed  in  behalf  of  a 
child  in  its  mother's  womb.* 

An  injunction  will  be  granted  to  restrain  acts  in  the  nature 
of  waste  committed  by  one  in  possession  of  land  the  title  to 
which  is  in  litigation.^  It  has  been  held  that  an  applicant  for 
the  purchase  of  government  land  whose  claim  is  disputed  in  the 
land  office  cannot  obtain  an  injunction  to  prevent  acts  of  waste 
by  count}'  officers.^ 

Upon  a  bill  for  an  injunction  against  waste,  a  dispute  as  to 
the  title  may  be  decided.''' 

A  bill  for  an  injunction  against  waste,  which  is  ancillary  to 
an  action  for  ejectment,  should  be  dismissed  upon  the  entry  of 
judgment  in  favor  of  the  defendant  in  the  action  at  common 
law.' 


SDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1854,   1855. 

3  Vane  v.  Lord  Barnard,  2  Vern. 
738;  Garth  v.  Sir  John  Hind  Cot- 
ton, 1  Dick.  183;  s.  C,  1  White  & 
Tudor 's  Lead.  Cas.  in  Eq.  (6th  ed.) 
806;  Bispham's  Eq.  §134. 

4  Musgrave  v.  Parry,  2  Vern.  710; 
Lutterel's  Case,  cited  Prec.  Ch.  50; 
Scatterwood  v.  Edge,  1  Salk.  229. 

5  Lancaster  v.  Kathleen  Oil  Co., 
241,  U.  S.  551  ;U.  S.  Parrott,  1  Mc- 
AU.  271;  Lanier  v.  Alison,  31  Fed. 
100;    U.   S.   V.   Honolulu   Consol.   Oil 


Co.,  249  Fed.  167;  United  States  v. 
Hodges.  218  Fed.  87;  El  Dora  Oil 
Co.  V.  United  States,  229  Fed.  946; 
Beatty  Oil  &  Gas  Co.  v.  Blantou, 
245  Fed.  979;  Lindlay  v.  Raydur, 
239  Fed.  928. 

6  McBride  v.  Pierce  County,  44 
Fed.  17. 

7  Peck  V.  Ayers  &  Lord  Tie  Co., 
C.  C.  A.,  116  Fed.  273;  Douglas 
Co.  V.  Tennessee  Lumber  Mfg.  Co., 
C.  C.  A.,  118  Fed.  438. 

8  West  V.  East  Coast  Cedar  Co., 
C.  C.  A.,  113  Fed.  742. 


§  274]  AGAINST    NUISANCE  1359 

§  274.  Injunctions  to  prevent  the  continuance  of  a  nuisance. 
The  interiereiie-e  of  e<iuity  to  enjoin  the  eontiniianee  of  a 
nuisance  is  not  only  duo  to  the  fact  that  the  acts  complained  of 
produce  irreparable  injury,  but  also  is  allowed  to  prevent  the 
multiplicity  of  suits  that  would  be  necessary  were  the  plaintiff 
confined  to  his  remedy  at  common  law.^  Nuisances  are  of  two 
kinds:  those  which  are  injurious  to  the  public  at  large,  and  those 
which  are  injurious  to  the  rights  and  interests  of  private  per- 
sons.^  The  use  of  this  remedy  to  suppress  a  public  nuisance  is 
of  very  ancient  date.^  It  was  applicable  in  England,  both  to 
nuisances  strictly  so  called  and  to  purprestKres.  "By  pur- 
presture  is  meant,  in  its  present  acceptation,  an  encroachment 
upon  the  Crown,  either  upon  part  of  the  demesne  lands,  or  upon 
the  high  roads,  rivers,  ports,  or  streets;  and  the  difference  be- 
tween purprestures  and  nuisances  consists  in  this,  that  where  the 
jus  privatum  of  the  Crown  is  invaded  it  is  a  purpresticre,  but 
where  the  jns  puhlic\i)n  is  violated  it  is  a  nuisance.  In  cases  of 
purp^-esture  the  remedy  is  either  by  information  for  an  intrusion 
at  the  common  law,  or  by  information  in  equity  at  the  suit  of 
the  attorney-general.  The  consequence  of  a  judgment  at  com- 
mon law  being  the  abatement  of  the  erection  or  grievance  com- 
plained of,,  whether  it  is  or  is  not  a  nuisance,  whilst  upon,  an 
information  in  equity,  where  the  trespass  does  not  produce  any 
public  injury,  the  court  may  direct  an  inquiry  whether  it  is 
most  beneficial  to  the  Crown  to  abate  the  purpresture,  or  to 
suffer  the  erection  to  remain  and  l)e  assessed  as  a  part  of  the 
legal  revenue."*  Cases  of  pu])lic  nuisance  may  be  enjoined 
at  the  suit  of  the  attorney-general,  who  in  England  sues  by  in- 
formation.^ It  has  been  held  that  the  United  States  may  sue 
to  enjoin  acts  in  pursuance  of  an  unlawful  conspiracy  forcibly 
to  obstruct  interstate  commerce  and  the  transport  of  the  mails;  ^ 
and  to  enjoin  a  nuisance  which  threatens  injury  to  works  in  aid 
of  commerce  constructed  under  the  authority  of  the  national 

§274.     1  Fishmongers '  Co.  v.  East  2  Anst.  603;   Atty.  Gen.  v.  Johnson, 

India  Co.,   1   Dick.   168;    Atty.   Gen.  2    J.    Wil.    87.      See    also    U.    S.    v. 

V.  Nichol,  16  Ves.  338,  343.  Gear,  3  How.  120.  11  L.  ed.  523. 

2Danieirs  Ch.   Pr.    (2d  Am.  ed.)  5  Daniell's  Ch.  Pr.    (2d  Am.   ed.) 

1857.  1858. 

3  Ibid.  6  In  re  Debs,  158  U.  S.  581,  39  L. 

4 Daniell's  Ch.   Pr.    (2d   Am.  ed.)  ed.   1101;   In  re  Lennon,  166  U.  S. 

18.')7,  citing  Atty.  Gen.   v.  Richards,  548,  41  L.  ed.   1110. 


1360 


INJUNCTIONS 


[§274 


government.'  A  public  nuisance  may  be  restrained  at  the  suit 
of  any  who  have  suffered  by  it  special  damage  distinct  from  that 
which  it  causes  to  the  public  at  large;  but  not  otherwise.*  A 
bill,  for  example,  may  be  filed  by  a  State  to  enjoin  the  erection 
of  a  bridge  across  a  navigable  stream  which  will  injure  her  com- 
merce ;  ^  but  not  by  a  city  for  a  similar  reason,^"  unless  its  prop- 
erty, for  example,  a  wharf,  is  thereby  injured." 

A  private  nuisance  is  an  act,  or  series  of  acts,  unaccompanied 
by  an  act  of  trespass,  which  causes  a  substantial  injury  to  a 
person's  property,  health,  or  comfort.  It  will  always  be  re- 
strained when  it  would  otherwise  cause  an  irreparable  injury 
or  a  multiplicity  of  suits.^^  It  includes  the  blocking  of  the  en- 
trance to  a  railroad  station  by  hackmen,"  or  of  a  railroad  siding 
by  wagons.^* 

"It  used  to  be  thought,  that  if  a  man  knew  there  was  a  nui- 
sance, and  went  and  lived  near  it,  he  could  not  recover,  because, 
it  was  said,  it  is  he  that  goes  to  the  nuisance,  and  not  the  nui- 
sance to  him.  This,  however,  is  not  the  law  now."  "  Formerly, 
an  injunction  was  rarely  issued  to  restrain  a  nuisance  until  the 
plaintiff's  right  of  action  had  been  established  at  law;  "but  now 
a  suit  at  law  is  no  longer  a  necessary  preliminary,  and  the  right 
to  an  injunction,  in  a  proper  ease,  in  England  and  most  of  the 


7  U.  S.  V.  Miss.  &  E.  E.  Boom  Co., 
3  Fed.  548;   s.  c,  1  McCrary,  601. 

SBaines  v.  Baker,  Amb.  158; 
Miss.  &  Mo.  E.  Co.  V.  Ward,  2 
Black,  485,  17  L.  ed.  311;  George- 
town V.  Alexandria  Canal  Co.,  12 
Pet.  91,  9  L.  ed.  1012;  Irwin  v. 
Dixion,  9  How.  10,  13  L.  ed.  25; 
Spooner  v.  McConnell,  1  McLean, 
337;  Works  v.  Junction  E.  Co.,  5 
McLean,  425. 

9  Pennsylvania  v.  W.  &  B.  B.  Co., 
13  How.  518,  14  L.  ed.  249. 

10  Georgetown  v.  Alexandria  Ca- 
nal Co.,  12  Pet.  91,  9  L.  ed.  1012. 

H  St.  Louis  V.  Knapp  Co.,  104 
U.  S.  658,  26  L.  883.  A  rail- 
road company  cannot  have  an  in- 
junction against  the  keeping  of  a 
saloon  where  its  workmen  buy  li- 
q^iors.      Northern    Pac.    E.    Co.    v. 


Whalen,   149   U.   S.   157,  37  L.   ed. 
686. 

12  Osborne  v.  Barter  &  Goddins, 
anno.  26  Eliz.  Choyce  Cas.  in  Ch. 
(ed.  of  1870),  p.  176;  Parker  v. 
Winnipiseogee  Lake  C.  &  W.  Co.,  2 
Black,  545,  17  L.  ed.  333;  Woodruff 
V.  North  Bloomfield  G.  M.  Co.,  18 
Fed.  753;  St.  Helen's  S.  Co.  v.  Tip- 
ping, 11  H.  L.  C.  642. 

13  Donovan  v.  Pennsylvania  Co., 
199  U.  S.  279,  50  L.  ed.  192;  Tal- 
bot V.  Independent  Order  of  Owls, 
C.  C.  A.,  219  Fed.  660. 

14  Eobinson  v.  Baltimore  &  O.  E. 
Co.,  C.  C.  A.,  129  Fed.  753. 

15Byles,  J.,  in  Hole  v.  Barlow, 
4  C.  B.  (N.S.)  334.  See  St.  Helen's 
So.  Co.  V.  Tipping,  11  H.  L.  C.  642 ; 
Campbell  v.  Seaman,  63  N.  Y.  568, 
20  Am.  Eep.  567. 


§274al  TO    ENFORCE   PROHIBITION  1361 

States,  is  just  as  fixed  and  certain  as  the  right  to  any  other 
provisional  remedy.  "^^ 

Formerly,  it  was  a  fundamental  objection  to  an  order  for  an 
injunction  to  restrain  a  nuisance  to  land  when  the  legal  title  was 
disputed,  that  the  order  contained  no  provision  for  putting  the 
question  in  a  course  of  legal  investigation." 

§  274a.  Injunctions  to  enforce  prohibition  of  use  of  intoxi- 
cating: liquors,  'i'he  Eighteenth  amendment  to  the  Federal 
("on.stitution,  oi'dains:  "After  one  year  from  the  ratiticaticm  of 
this  article  of  manufacture,  sale,  or  transportation  of  intoxicat- 
ing liquors  Mithin,  the  importation  thereof  into,  or  tlie  exporta- 
tion thereof  from  the  Ignited  States  and  all  territory  subject  to 
the  jurisdiction  thereof,  for  beverage  purposes,  is  liereby  pro- 
hibited. 

"The  Congress  and  the  several  States  shall  have  concurrent 
power  to  enforce  this  article  by  appropriate  legislation. 

"This  article  shall  be  inoperative  unless  it  shall  have  been 
ratified  as  an  amendment  to  the  Constitution  by  the  Legislatures 
of  the  several  States  as  provided  in  the  Constitution,  within 
seven  j-ears  from  the  date  of  the  submission  hereof  to  the  States 
b.y  the  Congress." 

The  act  of  October  28,  1919,  to  enforce  Prohibition  amongst 
other  things  provides: 

"Any  room,  house,  building,  boat,  vehicle,  structure,  or  place 
where  intoxicating  li(pior  is  manufactured,  sold,  kept,  or  bar- 
tered in  violation  of  this  title,  and  all  intoxicating  liquor  and 
property  kept  and  used  in  maintaining  the  same,  is  herein-  de- 
clared to  be  a  common  nuisance,  and  any  pereon  who  maintains 
such  a  common  nuisance  shall  be  guilty  of  a  misdemeanor  and 
upon  conviction  thereof  shall  be  fined  not  more  than  $1,000  or 
be  imprisoned  for  not  more  than  one  year,  or  both.  If  a  person 
has  knowledge  or  reason  to  believe  that  his  room,  house,  build- 
ing, boat,  vehicle,  structure,  or  place  is  occupied  or  used  for 
the  manufacture  or  sale  of  li(iuor  contrary  to  the  provision  of 
this  title,  and  suffers  the  same  to  be  .so  occupied  or  used,  such 

16  Judge  Earl  in  Canipholl  v.  Sea-  But     see     McBride     v.     Board     of 

man,  6.1  N.  Y.  .568,  n82.  See,  how-  Com  'r.s  of  Pierce  County,  44  Fed.  17. 
ever,    Irwin    v.   Dixion,   9    How.    10,  17  Harman    v.    Jones,    Cr.    &    Ph. 

U  L.  ed.  2.1;    Muitagh  v.  Philadel-  299;    Sanxter   v.   Foster,   Cr.   &   Ph. 

phia,   1    Weekly   Notes  of  Case.s,   'A7.  .".02. 


1362  INJUNCTIONS  [§  274a 

room,  house,  building,  boat,  vehicle,  structure,  or  place  shall  be 
subject  to  a  lien  for  and  may  be  sold  to  pay  all  fines  and  costs 
assessed  against  the  person  guilty  of  such  nuisance  for  such 
violation,  and  any  such  lien  may  be  enforced  by  action  in  any 
court  having  jurisdiction."  ^ 

"An  action  to  enjoin  any  nuisance  defined  in  this  title  may 
be  brought  in  the  name  of  the  United  States  by  the  Attorney 
General  of  the  United  States  or  by  any  United  States  attorney 
or  any  prosecuting  attorney  of  any  State  or  any  subdivision 
thereof  or  by  the  commissioner  or  his  deputies  or  assistants. 
Such  action  shall  be  brought  and  tried  as  an  action  in  equity 
and  may  be  brought  in  any  court  having  jurisdiction  to  hear  and 
determine  equity  cases.     If  it  is  made  to  appear  by  affidavits 
or  otherwise,  to  the  satisfaction  of  the  court,  or  judge  in  vaca- 
tion, that  such  nuisance  exists,  a  temporary  writ  of  injunction 
shall  forthwith  issue  restraining  the  defendant  from  conducting 
or  permitting  the  continuance  of  such  nuisance  until  the  con- 
clusion of  the  trial.     If  a  temporary  injunction  is  prayed  for, 
the  court  may  issue  an  order  restraining  the  defendant  and  all 
other  persons  from  removing  or  in  any  way  interfering  with 
the  liquor  or  fixtures,  or  other  things  used  in  connection  with 
the  violation  of  this  Act  constituting  such  nuisance.     No  bond 
shall  be  required  in  instituting  such  proceedings.    It  shall  not  be 
necessary  for  the  court  to  find  the  property  involved  was  being 
unlawfully  used  as  aforesaid  at  the  time  of  the  hearing,  but 
on  finding  that  the  material  allegations  of  the  petition  are  true, 
the  court  shall  order  that  no  liquors  shall  be  manufactured,  sold, 
bartered,  or  stored  in  such  room,  house,  building,  boat,  vehicle, 
structure,  or  place,  or  any  part  thereof.    And  upon  judgment  of 
the  court  ordering  such  nuisance  to  be  abated,  the  court  may 
order  that  the  room,  house,  building,  structure,  boat,  vehicle, 
or  place  shall  not  be  occupied  or  used  for  one  year  thereafter ; 
but  the  court  may,  in  its  discretion,  permit  it  to  be  occupied  or 
used  if  the  owner,  lessee,  tenant,  or  occupant  thereof  shall  give 
bond  with  sufficient  surety,  to  be  approved  by  the  court  making 
the  order,  in  the  penal  and  liquidated  sum  of  not  less  than  $500 
nor  more  than  $1,000,  payable  to  the  United  States,  and  con- 
ditioned that  intoxicating  liquor  will  not  thereafter  be  manu- 

§  274a.     1  Ch.   83,  p.   314.     Comp. 
St.,  §  101381/2  jj. 


TO  EXKOKCE  I'K(iHIUITI(JX  VMhi 

factured,  sold,  bartered,  kept,  or  otherwise  disposed  of  therein 

or  thereon,  and  that  he  will  pay  all  fines,  costs,  and  damages 

that  may  be  assessed  for  any  violation  of  this  title  npon  said 

property, ' '  ^ 

"Any  person  who  shall,  with  intent  to  effect  a  sale  of  li<|Uor. 

by  himself,  his  emj)loyee,  servant,  or  ajz-ent.  oi-  himself,  or  any 

person,  company  or  corporation,  keep  or  carry  ai'onnd  on  his 

person,  or  in  a  vehicle,  or  other  conveyance  whatever,  or  leave  in  a 

place  for  another  to  secure,  any  liquor,  or  wiio  shall  travel  to 

solioit,  or  solicit,  or  take,  or  accept  orders  for  the  sale,  shipment, 

or  delivery  of  liquor  in  violation  of  this  title  is  guilty  of  a  nuisance 

and  may  be  restrained  by  injunction,  temporary  and  permanent. 

from  doing  or  continuing  to  do  any  of  such  acts  or  things.     In 

such  proceeding  it  shall  not  be  necessary  to  show  any  intention 

on  the  part  of  the  accused  to  continue  such  violation  if  the  action 

is  brought  within  60  days  following  any  such  violation  of  the 
law.  "3 

The  Act  of  March  3,  3917,  for  the  abatement  of  liquor 
nuisances,  provides : 

"The  United  States  district  attorney  for  the  District  of  Co- 
lumbia, or  any  citizen  of  the  District  of  Columbia,  may  main- 
tain an  action  in  equity  in  the  name  of  the  United  States  to 
abate  and  perpetually  enjoin  such  a  nuisance  as  defined  in  the 
preceding  section.  The  injunction  shall  be  granted  at  the  com- 
mencement of  the  action,  and  no  bond  shall  be  required.  Any 
person  violating  the  terms  of  any  injunction  granted  in  such 
proceedings  shall  be  punished  for  contempt  by  a  fine  of  not  less 
than  $100  nor  more  than  $500  and  by  imprisonment  in  the  Dis- 
trict jail  or  workhouse  for  not  less  than  thirty  days  nor  more 
than  six  months,  in  the  discretion  of  the  court."* 

"When  any  violation  of  this  Act  is  threatened,  or  shall  have 
occurred,  or  is  occurring,  the  doing  of,  or  the  continuance  or 
repetition  of  the  unlawful  act,  or  any  of  like  kind  by  the  offend- 
ing party  may  be  prevented  by  a  writ  of  injunction  out  of  a 
court  of  equity  upon  a  bill  filed  in  all  respects  as  in  cases  of 
liquor  nuisances;  in  like  manner  the  writ  of  injunction  may  be 
employed  to  compel  obedience  to  any  provision  of  this  Act. ' '  ^ 

2  Title  ir.  S22.  p.  .S14.  roin]..  4  Act  of  March  8,  1917,  Ch.  IG.l, 
St.  «  101.181/0  k.  S  14.  Comp.  St.,  §  3369  kk. 

3  Title  IT.  §2;^.  ],.  ;;14.  Comp.  6  Act  of  March  3,  1917.  Cli.  Kw. 
St.  S  l()138V-i  kk.  *                    §lo,   Comp.   St.  3369  1. 


1364 


INJUNCTIONS 


[§275 


§  275.  Injunctions  to  restrain  trespass.  Injunctions  to  re- 
strain trespass  are  of  comparatively  recent  origin.  The  first  tliat 
is  to  be  found  in  the  books  was  granted  by  Lord  Thurlow.^  They 
are  only  granted  when  the  trespass  is  destructive  or  continuous. 
Where  the  plaintiif  is  in  possession  and  the  person  doing  the 
acts  complained  of  is  a  stranger,  not  claiming  under  color  of 
right,  the  tendency  of  the  court  is  not  to  grant  an  injunction, 
unless  there  are  special  circumstances,  but  to  leave  the  plaintiff 
to  his  remedy  at  law;  although,  w^here  the  acts  tend  to  the  de- 
struction of  the  estate,  the  court  will  grant  it.^  But  where-  the 
party  in  possession  seeks  to  restrain  one  who  claims  by  adverse 
title,  then  the  tendency  is  to  grant  the  injunction,  where  the 
acts  done  either  did  or  might  tend  to  the  destruction  of  the 
estate.' 

It  was  held :  That  a  suit  by  the  lessee  of  gas  and  oil  to  enjoin 
the  removal  of  those  substances  from  the  premises  by  a  subse- 
quent lessee  was  maintainable  as  a  suit  to  prevent  trespass  and 
waste,  and  not  one  for  specifiic  performance  of  the  lease  in  which 
the  equities  between  the  lessor  and  the  lessee  might  be  con- 
sidered.* 


§275.  IFlamang's  Case,  cited 
by  Lord  Eldon  in  Hansom  v.  Gar- 
diner, 7  Ves.  305.  For  injunctions 
against  the  collection  of  an  illegal 
tax,  see  supra,  §  2711>. 

2  See  Jerome  v.  Eoss,  7  J.  Ch. 
(N.  Y.)  315;  Troy  &  B.  E.  Co.  v. 
Boston,  H.  T.  &  W.  Ey.  Co.,  86 
N.  Y.  107;  Van  Norden  v.  Morton, 
99  U.  S.  378,  25  L.  ed.  453;  Erhart 
V.  Boaro,  113  U.  S.  537,  28  L.  ed. 
1116;  St.  Louis  M.  &  M.  Co.  v.  Mon- 
tana M.  Co.,  58  Fed.  129, 

3  Lowndes  v.  Settle,  33  L.  J.  Ch. 
461.  Archer  v.  Greenville  Gravel 
Co.,  233  U.  S.  60  (continuous  dredg- 
ing of  gravel  from  bed  of  stream)  ; 
Bettes  V.  Brower,  184  Fed.  342  (fell- 
ing trees)  ;  Eastern  Oregon  Laud 
Co.  V.  Willow  Eiver  Land  &  Irr.  Co., 
C.  C.  A.,  201  Fed.  203  (damming  a 
stream)  ;  "West  Virginia  Pulp  &  Pa- 
per Co.  V.  Cheat  Mountain  Club,  C. 
C.  A.,  212  Fed.  373  (polluting 
streams    and    felling    shade    trees) ; 


Denver  &  E.  G.  E.  Co.  v.  Mills,  C.  C. 
A.,  222  Fed.  481  (constructing  a 
railroad  track  when  value  of  the 
right  of  way  was  decreed  as  the  alter- 
native to  an  injunction).  Where  an 
electric  railway  company  was  de- 
stroying, by  its  return  current,  the 
pipes  of  a  water  company  by  elec- 
trolysis; it  was  held  that  the  court 
had  no  power  to  enjoin  the  use  by 
the  former  of  any  particular  system 
of  circuit  or  negative  return,  al- 
though it  might  be  shown  that  the 
system  in  use  necessarily  resulted 
in  the  injury  of  which  complaint 
was  made;  but  that  all  which  the 
court  could  do  was  to  restrain  the 
continuance  of  the  injury,  leaving 
the  means  to  be  adopted  to  pre- 
vent the  same  entirely  to  the  discre- 
tion of  the  defendant.  Peoria  Wa- 
terworks Co.  V.  Peoria  Ey.  Co.,  181 
Fed.  990.  See  High  on  Injunctions, 
(4th  edi)   §§  697-722b. 


§  275] 


TO    RESTRAIN    TRESPASS 


I'iGo 


The  destruction  of  credit  by  an  illegal  seizure  of  one's  stock 
in  trade,^  and  the  injury  to  a  farm  done  by  the  illegal  taking  of 
all  the  stock  and  tools  upon  it,  have  been  held  instances  of  such 
irreparable  injury.^  An  attempt  by  a  railroad  company  to  build 
its  road  upon  private  propei'ty  without  payment  of  compensa- 
tion, iiia\-  be  thus  i)rcv('iite(l.'''  ll  is  not  certain,  whether  the 
fact  that  a  person  who  threatens  to  commit  a  wrong  is  insolvent 
and  unable  to  pay  any  damages  which  could  be  recovered  at 
law,  is  in  itself  a  sufficient  ground  for  the  interference  of  equity 
by  injunction  ;  l)nt  the  weight  of  authority  seems  to  hold  that 
it  is.8 

It  was  held,  where  there  was  a  dispute  as  to  the  possession 
and  as  to  the  right  to  the  possession  of  a  railroad  track,  that  the 
court  would  not  interfere  by  injunction  to  assist  in  "a  scramble 
for  possession."  ^ 

A  number  of  cases  decided  in  the  courts  of  different  States 
hold  that  an  injunction  cannot  be  obtained  to  restrain  an  illegal 
arrest;  since  it  is  said  that  the  writ  of  habeas  corpiis  followed 
by  an  action  for  damages  always  affords  an  adequate  remedy 
for  any  injury  resulting  therefrom ;  ^°  but  if  the  result  of  the 


4Lindlay  v.  Eaydurc,  239  Fed. 
928. 

6  Watson  v.  Sutherland,  5  Wall. 
74,  18  L.  ed.  580;  Cropper  v.  Co- 
burn,  2  Curt.  465;  North  v.  Peters, 
i;^8  U.  S.  271,  34  L.  ed.  936. 

6  Brecden  v.  Lee,  2  Hnj^hcs,  484. 

7  N.  P.  R.  Co.  V.  Burlington  &  M. 
R.  Co.,  2  McCrary,  203 ;  s.  C,  4  Pod. 
298.  See  also  Mo.  K.  &  T.  Ry.  Co. 
V.  T.  &  St.  L.  Ry.  Co.,  10  Fed.  497. 
But  sec  D.  M.  Osborne  Co.  v.  Mo. 
Pac.  R.  Co.,  147  U.  S.  248,  37  L. 
ed.  155;  Burlington  G.  L.  Co.  v. 
Burlington,  C.  R.  &  N.  Co.,  165  U. 
S.  370,  41   L.  ed.  749. 

8  Connolly  v.  Belt,  5  Cranch,  C.  C. 
405;  M'Eboy  v.  Kansas  City,  21 
Fed.  257,  262;  Coour  d 'Alene  Cons. 
&  Mining  Co.  v.  Miners'  Union  of 
Wardner,  19  L.R.A.  382,  51  Fed. 
260;  Agar  v.  Regent's  Canal  Co., 
cited  in  1  Swanst.  250;  Musselnian 
V.  Marquis,  1  Bush.  (Ky.)  463,  89 
Am.  Dec.  637;  Hieks  v.  Compton,  18 

Fed.  Prac.  Vol.  11—16 


Cal.  206;  Britton  v.  Hill,  12  C.  E. 
Croon  (N.  J.),  389;  Lloyd  v.  Heath, 
Busb.  Eq.  (N.  C.)  39;  Cause  v.  Per- 
kins, 3  Jones'  Eq.  (N.  C.)  177,  69 
Am.  Dec.  728;  Ches.  &  O.  R.  Co.  v. 
Patton,  5  W.  Va.  234;  Bisham's  Eq., 
S436;  Caro  v.  Met.  El.  Ry.  Co.,  46 
N.  Y.  Super.  Ct.  138.  Contra,  Heil- 
man  v.  Union  Canal  Co.,  37  Pa.  St. 
100;  Thompson  v.  Williams,  1  Jones' 
Eq.  (N.  C.)  176;  Nessle  v.  Reese, 
19  Abb.  Pr.  (N.  Y.)  240;  High  on 
Injunctions,  §  18. 

9  St.  Louis,  K.  C.  &  C.  Ry.  Co. 
V  Dewees,  23  Fed.  691.  See  Latham 
V.  Northern  Pac.  R.  Co.,  45  Fed.  721, 

10  Cohen  v.  Com  'rs  of  Goldsboro, 
77  N.  C.  2;  Burnett  v.  Craig,  30 
Ala.  135,  68  Am.  Dec.  115;  Bureh 
V.  Cavanaugh,  12  Abb.  Pr.  (N.  S.) 
(N.  Y.)  410;  Davis  v.  Am.  Soc.  for 
P.  of  C.  to  A..  6  Daly  (X.  Y.).  81; 
s.  c,  on  appeal,  75  N.  Y.  362.  See 
also  Yiok  Wo  v.  Crowley,  26  Fed. 
207;    Electric    N.    &    M.    T.    Co.    v. 


I 


i;^66  INJUNCTIONS 


[§276 


arrests  would  be  an  irreparable  injury  to  the  business  of  the 
complainant,  an  injunction  might  perhaps  be  issued." 
.  In  one  case  the  court  directed :  that  an  injunction  to  restrain 
trespass  be  dissolved,  unless  an  action  of  ejectment  to  try  a 
claim  of  title  by  a  defendant  in  possession  is  begun  within  ten 
days,  and  unless  issues  raised  by  defendants  are  framed  for  trial 
by  jury  within  twenty  days.^^ 

A  continuing  trespass  may  be  enjoined  by  the  final  decree 
although  it  has  ceased  pending  the  suit.^^  When  the  plaintiif  is 
in  possession,  the  trespasser  cannot  attack  his  title  unless  he 
sets  up  a  grant  from  the  true  owner.^^  When  the  complainant 
has  acquired  his  title  after  a  continuous  trespass  has  begun  and 
continued  for  a  considerable  period  of  time  the  bill  should  al- 
lege that  his  grantor  was  ignorant  of  the  trespass  and  had  not 
settled  with  the  defendant.^^  gince  most  injunctions  against 
strikers  forbid  trespassing,  this  subject  will  be  next  considered. 

§276.  Injunctions  against  strikers.  The  English  judges 
have  held  that  at  common  law  every  trade  union  was  formed 
to  combine  laborers  in  order  to  increase  their  wage,  was  an 
illegal  conspiracy,  and  that  all  strikes  were  unlawful.^  An  act 
of  Congress  expressly  provides :  ' '  The  labor  of  a  human  being 
is  not  a  commodity  or  article  of  commerce.  Nothing  contained 
in  the  antitrust  laws  shall  be  construed  to  forbid  the  existence 
and  operation  of  labor,  agricultural,  or  horticultural  orgauiza- 

Perry,   7.5   Fed.   698;   Burns  v.   Mc-  15  Kamper  v.  City  of  Chicago,  C. 

Adoo,    113    App.    Div.    165;    Eden  C.  A.,  215  Fed.  706. 
Musee    Am.    Co.    v.    Bingham,    125  §276.     1  K«x       v.        Journeymen 

App.  Div.  780.  Tailors  of  Cambridge,  Rex  v.  Mau- 

11  Dobbins  v.  Los  Angeles,  195  U.  ley,   6  Tr.   619,  636;    8   Modern  10. 

S.    223,    49    L.    ed.    169;    Ex   parte  The    journeymen    shoemakers'    case 

Young,  209  U.  S.  123,  52  L.  ed.  714;  per    Kenyon,    C.    J.:    Hammond,    A. 

Hunter  v.  Wood,  209  U.  S.  205,  52  D.  1799;  Hilton  v.  Ekersley,  6  El.  & 

L.   ed.   747;   Louisiana  S.  L.  Co.  v.  B.  47,  53,  per  Compton,  J.:  Walsby 

Fitzpatrick,    3    Woods,    222 ;    Dins-  v.  Croley,  30  L.  J.  Me.  1,  per  Cromp- 

raore  v.  New  York  B.  of  P.,  12  Abb.  ton   and  Hill,  J.T.     See   Gompers  v. 

N.  Cas.   (N.  Y.)  436;   Manhattan  I.  Buck  Stove  &  Range  Co.,  221  U.  S. 

W.  Co.  V.  French,  12  Abb.  N.  Cas.  418,    439;    Hitehman    Coal   &    Coke 

(N.  Y.)   446;   supra,  §79.  Co.  v.  Mitchell,  245  U.  S.  229,  253, 

12  N.  J.  &  N.  C.  Land  &  Lumber  reversing  upon  another  point,  Mit- 
Co.  v.  Gardner-Lacey  Lumber  Co.,  chell  v.  Hitehman  Coal  &  Coke 
113  Fed.  395.  Co.,  C.  C.  A.,  214  Fed.   685,  where 

13  Archer  v.  Greenville  Sand  «&  the  history  of  the  doctrine  is  set 
Gravel  Co.,  233  U.  S.  60.  forth;    Arthur    v.    Oakes,    C.   C.    A., 

14  Crown   Orchard    Co.   v.   Dennis,       63  Fed.  310,  317,  318. 
C.  C.  A.,  229  Fed.  652. 


§  276J 


AGAINST   STRIKERS 


Vidl 


tions  instituted  for  the  purposes  of  mutual  help,  and  not  having 
capital  stock  or  conducted  for  profit,  or  to  forbid  or  restrain  in- 
dividual members  of  such  organizations  from  lawfully  carrying 
out  the  legitimate  objects  thereof;  nor  shall  such  organizations 
or  the  members  thereof  be  held  or  construed  to  be  illegal  com- 
binations or  conspiracies  in  restraint  of  trade,  under  the  anti- 
trust law."  2 

The  previous  statute  of  July  13,  1913,  which  is  less  generally 
known,  providing  for  arbitration  between  carriers  and  their  em- 
ployees provides:  "Nothing  in  the  act  contained  shall  be  con- 
strued to  require  an  employee  to  render  personal  sei-vice  without 
his  consent,  and  no  injunction  or  other  legal  process  shall  be 
issued  which  shall  coiupel  the  performance  of  any  labor  or 
service.^  The  Federal  courts  have,  however,  in  certain  cases, 
sustained  injunctions  to  prevent  strikes  and  boycotts.  A  ma- 
jority of  file  Supreme  Court  has  directed  the  issue  of  an  in- 
junction forbidding  officers  of  a  labor  union  from  persuading 
the  plaintiff's  employees  to  strike,  because  the  employer  refused 
to  employ  any  union  men.*  As  the  decision  was  upon  ground 
that  is  debatable,  the  question  may  be  considered  a  still  suh 
juclicc. 

Before  this  it  was  the  general  rule,  that  a  court  should  not 
enjoin  laboi-ers  fi-oin  striking,  nor  from  advising  others  to  strike* 


2  Act  of  Oc-t.  !;■),  ]914.  eh.  :!2:!, 
§  6,  .38  St.  at  L.  7.31,  Com]).  St.. 
§  8835f.     See  infra,  §  29()a. 

3  38  St.  .'It  L.  11)7,  eh.  (5,  §8,  Conip. 
St.,  §  8673,  suhd.  5. 

4  ITitclmiiin  Coal  &  (\)ke  Co.  v. 
Mitchell,  245  U.  S.  229,  261,  see 
Eagle  Glass  &  Mfg.  Co.  v.  Eowe, 
245  U.  S.  275;  Mortineau  v.  Folley. 
Mass.,  Oct.,  1918,  120  N.  E.  445; 
Quinn  v.  Leathern,  1901  [  appeal 
cases  4951  ;  Pratt  v.  British  Med. 
Ass'n   [1918],  K.  B.  D. 

5  Arthur  v.  Oakes,  C.  C.  A.,  63 
Fed.  310,  318;  L.R.A.  414,  4  Inters. 
Com.  Rep.  744  (reversing  Farmers' 
L.  &  Tr.  Co.  V.  N.  Pac.  R.  Co.,  25 
L.R.A.  414,  note,  4  Inters.  Com. 
Rop.  774,  note,  60  Fed.  803,  by  Jen- 
kins, .1.:  who  was  threatened  witli 
impeachment  tor  this  decision)  ;  per 


Mr.  Justice  Harlan:  "But  the  vital 
(iuestion  remains  whether  a  court  of 
t(|iiity  will,  under  any  circumstances, 
]>y  injuiictidii,  prevent  one  individ- 
ual from  (putting  the  personal  serv- 
ice of  another?  An  affirmative  an- 
swer to  this  question  is  not,  we  think, 
justified  by  any  authority  to  which 
our  attention  has  been  called  or  of 
which  we  are  aware.  It  would  be 
an  invasion  of  one's  natural  liberty 
to  compel  him  to  work  for  or  to  re- 
main in  the  personal  service  of  an- 
other. One  who  is  placed  under 
such  constraint  is  in  a  condition  of 
involuntary  servitude, — a  condition 
which  the  supreme  law  of  the  land 
declares  shall  not  exist  within  the 
F^nited  States,  or  in  any  place  sub- 
ject to  their  jurisdiction. ' '  Delaware 
L.  &  W.  R.  Co.  v.  Switchers'  Union. 


1368 


INJUNCTIONS 


[§276 


although  it  had  been  held  that  it  might  enjoin  them  from  com- 
bining to  qnit  work  in  order  to  cripple  their  employer's  property 
and  embarrass  his  business  ;6  and  from  refusing  to  handle  or 
operate  cars  while  remaining  in  the  employ  of  a  railroad  com- 
pany.' 

Injunctions  against  strikes  and  boycotts  have  been  granted 
under  the  Antitrust  Law,^  under  the  Act  for  the  Conservation 
of  Food,  Fuel,  and  Necessaries,^  in  aid  of  the  power  of  the 
President  to  prevent  obstruction  to  Interstate  Commerce  and 
the  carriage  of  the  mail,^*>  and  to  restrain  the  combining  or 
conspiring  to  quit,  with  or  without  notice,  the  service  of  rail- 
road receivers,  with  the  object  and  intent  of  crippling  the  prop- 
erty in  their  custody  or  embarrassing  the  operation  of  the  rail- 
road." Injunctions  have  been  granted  forbidding  strikers  from 
trespasses  and  acts  of  violence,"  against  their  employer's  prop- 
erty ;  and  from  acts  of  violence,^*  or  express  or  implied  threats 

V.    Hayes,   D.    C,   D.   Ind.,   Nov.   8. 
1919;   infra,  S  276d. 

lOT^r  Debs,  158  U.  S.  564,  .39  L. 
ed.  1092;  infra,  §  276c. 

11  Arthur  v.  Oakes,  C.  C.  A.,  63 
Fed.  310,  319,  rev'g  Farmer's  Loan 
&  Trust  Co.  V.  Northern  Pac.  R. 
Co.,  60  Fed.  803,  which  enjoined  the 
employees  from  so  quitting  the  serv- 
ice of  the  said  receivers  with  or  with- 
out notice,  as  to  cripple  the  property 
or  prevent  or  hinder  the  operation 
of  said  railroad.  Infra,  §  311.  U. 
S.  V.  Weber,  114  Fed.  950;  Pickett 
V.  Walsh,  192  Mass.  572,  78  N.  E. 
753,  6  L.R.A.  (N.S.),  1067,  116  Am. 
St.  Bep.  278,  7  Ann.  Cas.  638.  are 
more  nearly  in  accord  with  the  de- 
cision  which   was   reversed. 

12  Illinois  Cent.  R.  Co.  v.  Inter- 
national Ass'n  of  Machinists,  190 
Fed.  910. 

ISConsol.  S.  &  W.  Co.  V.  Murray, 
80  Fed.  811;  Gulf  Bag  Co.  v.  Sutt- 
nor,  124  Fed.  467. 

14  Con  sol.  S.  &  W.  Co.  v.  Murray, 
SO  Fed.  811;  Am.  S.  &  W.  Co.  v. 
Wire  Drawers'  &  D.  M.  Unions,  90 
Fed.  G08;  Southern  Ry.  Co.  v.  Ma- 
chinists' Local  Union,  111  Fed.  49; 


51  Fed.  260;  Wabash  R.  Co.  v. 
Hannahan,  121  Fed.  563;  Del.  & 
W.  R.  Co.  v.  Switchman's  Union, 
158  Fed.  541;  Aluminum  Castings 
Co.  V.  Local  No;  84,  I.  M.  U.,  197 
Fed.  221;  Tri-City  Cent.  Trade 
Council  V.  American  Steel  Foundries, 
C.  C.  A.,  238  Fed.  728.  Contra,  A. 
R.  Barnes  &  Co.  v.  Berry,  156  Fed. 
72. 

6  Arthur  v.  Oakes,  C.  C.  A.,  25 
L.R.A.  414,  4  Inters.  Com.  Rep.  744, 
63  Fed.  310,  324,  329;  Hitchman 
Coal  &  Coke  Co.  v.  Mitchell,  202 
Fed.  512,  reversed  by  C.  C.  A.,  214 
Fed.  685,  but  aifirmed  on  this  point 
245  U.  S.  229.  Cf.  Allen  v.  Flood 
11898],  Appeal  Cases,  1. 

7  So.  Cal.  Ry.  Co.  v.  Ruther- 
ford, 62  Fed.  796;  In  re  Lennon, 
166  U.  S.  548,  555,  41  L.  ed.  1110, 
1113. 

8  U.  S.  V.  Workingmen  's  Amal- 
gamated Council  of  New  Or- 
leans, 54  Fed.  994;  Commerce  v. 
Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.,  62 
Fed.  803,  821,  infra,  §  276b. 

9  Act  of  Aug.  10,  1917,  §1,  as 
amended  Act  of  Oct.  22,  1919,  ^2 
Comp.    St.,    S3115,    1/8    ff.,    U.    S. 


§276] 


AGAINST    STRIKERS 


136fl 


of  violencG,^^  against  persons  emploj-ed  to  take  their  places; 
and  even  forbidding  the  gathering  or  marching  in  procession 
upon  the  highway  near  the  employer's  premises.^^  The  weight 
of  authority  denies  the  right  to  grant  injunctions  against  picket- 
ing, by  stationing  watchers  outside  to  request  travelers  on  the 
highway  not  to  buy  of  the  emploj'er  or  not  to  enter  his  service." 

V.  Iron  Moldcrs'  Union  No.  125,  C. 
C.   A.,  166  Fed.  4.j,  modifying   150 
Fed.    155;    Iron   Molders '   Union   v. 
Allis-Chalmerfi    Co.,    C.    C.    A.,    16G 
Fed.  45 ;  Tri-City  Cent.  Trade  Coun- 
cil   V.   America   Steel   Foundries,   C. 
C.  A.,  238  Fed.  728;  Duplex  Print- 
ing Press  Co.   v.  Deering,  C.  C.  A., 
252   Fed.    722;    Atkins  v.   W.   &   A. 
Fletcher  Co.,  65  N.  J.   Eq.   658,  55 
Atl.  1074;  W.  &  A.  Fletcher  Co.  v. 
International  Association  of  Macliin- 
ists,   N.    .1.    Eq.    55    Atl.    1077;    cf. 
Charnock  v.  Court,  [1899  j  2  Ch.  .35; 
Trollupe  v.  Loudon  B.  T.  Fed 'n,  72 
Law  Times,  342;   Lyons  v.  Wilkins, 
[1899]  1  Ch.  255.    Contra,  Vegelahn 
V.  Gunther,  167  Mass.  92,  35  L.R.A. 
722,  57  Am.  St.  Eep.  443;   s.  C,  44 
N.  E.  1077,  with  a  strong  dissent  by 
Field,  C.  J.,  and  Holmes,  J.;  Am.  S. 
&   W.   Co.   V.   Wire   Drawers'   &   D. 
M.   Unions,  90   Fed.   608;    Southern 
Ry.  Co.  V.  Machinists'  Local  Union, 
111  Fed.  49;   Union  Pac.   R.  Co.  v. 
Ruef,   120   Fed.   102,  129;   Knudson 
V.    Benn,    123    Fed.    636;    Goldberg, 
Bowen  &  Co.  v.  Stablemans'  Union. 
8  L.R.A.   (N.  S.)   460,  117   Am.  St. 
Rep.  145,  86  Pac.  806.     See  Allen  v. 
Flood     [1S981,     Appeal     Cases,     1. 
High    on    "Injunctions,"     §  1415c. 
"Interference    by    Combinations    of 
Labor    with    Employer's    Business" 
by  Geoffrey  Konta  of  the  New  York 
bar   in   Columbia   Law   Rev.,   X.,   p. 
652 ;  Soiia  v.  Aluminum  Castings  Co., 
C.  C.  A.,  214  Fed.  936;  Kroger  Gro- 
cery    and     Baking     Co.     v.     Retail 
Clerks'        Internation        Protective 
A.ss'n,  250  Fed.  890,  895. 


Reineeke  Coal  Min.  Co.  v.  Wood, 
112  Fed.  477;  Atchison,  T.  &  S.  F. 
Ry.  Co,  V.  Gee,  140  Fed.  153;  Alaska 
S.  S.  Co.  V.  International  Long- 
shoremen 's  Ass  'n,  C.  C.  A.,  236  Fed. 
964;  Springfield  S.  Co.  v.  Riley,  L. 
R.  6  Eq.  551;  Hamilton-Brown  Shoe 
Co.  V.  Saxey,  131  Mo.  212,  52  Am. 
St.  Rep.  622;  s.  c,  32  S.  W.  1106; 
Master  Horseshoers '  Protective 
Ass'n  V.  Quinlivan,  83  App.  Div. 
(N.  Y.),  459.  But  see  Riehter  v. 
Journeymen  T.  Union,  24  Ohio  L. 
Bull.  189. 

15  Ibid.;  Goldfield  Consol.  Mines 
Co.  V.  Goldfield  Miners'  Union  No. 
220,  159  Fed.  500;  Aluminum  Cast- 
ings Co.  V.  Local  No.  84  of  Inter- 
national Molders'  Union  of  North 
America,  197  Fed.  221;  Iron  Mold- 
ers' Union  v.  Allis-Chalmers  Co., 
C.  C.  A.,  166  Fed.  45;  Alaska  S. 
S,  Co.  V.  International  Longshore- 
men's Ass'n,  C.  C.  A.,  236  Fed. 
964;  Montgomery  v.  Pac.  Elec.  Ry. 
Co.,  C.  C.  A.,  258  Fed.  382.  Sec 
High   on   Injunctions,    §  1415d. 

16Mackall  v.  Ratchford,  82  Fed. 
41;  Consol.  S.  &  W.  Co.  v.  Murray, 
80  Fed.  811;  Am.  S.  &  W.  Co.  v. 
Wire  Drawers'  &  D.  M.  Unions,  90 
Fed.  608;  Sherry  v.  Perkins,  147 
Mass.  212,  9  Am.  St.  Rep.  689; 
Bruce  Bros.  v.  Evans,  5  Pa.  Co.  Ct. 
R.  163;  Goldfield  Consol.  Mines  Co. 
V.  Goldfield  Miners'  Union  No.  220, 
159  Fed.  500;  Aluminum  Castings 
Co.  V.  Local  No.  84  of  International 
Molders'  Union  of  North  America, 
197  Fed.  221. 

17  Pope  Motor  Car  Co.  v.  Keegan, 
150    Fed.    148;     Allis-Chalmers    Co. 


1870 


INJUNCTIONS 


[§  276 


A  few  decisions  have  gone  so  far  as  to  enjoin  strikes  ^^  and 
boycotts.^^  Picketing  accompanied  by  threats  of  violence  has 
been  enjoined ;  ^°  but  the  commission  of  unlawful  acts  therewith 


18  Farmers'  L.  &  Tr.  Co.  v.  N. 
Pac.  R.  Co.,  25  L.R.A.  414,  note, 
4  Inters.  Com.  E«p.  774,  note,  60 
Fed.  803,  per  Jenkins,  J.,  reversed 
in  Artliur  v.  Oakes,  C.  C.  A.,  63 
Fed.  310,  infra,  §§  276,  b,  c,  d.  In 
Delaware  L.  &  W.  P.  Co.  v.  Switch- 
ers' Union,  51  Fed,  260;  Wabash 
R.  Co.  V.  Hannahan,  121  Fed. 
563,  preliminary  injunctions  to 
this  effect  were  dissolved.  But 
see  §  283,  infra,  Cf.  Be  Lennon, 
166  U,  S.  548,  41  L.  ed.  1110;  U, 
S.  V.  Cassidy,  67  Fed.  698;  U.  S. 
V.  Weber,  114  Fed.  950,  where  the 
strikers  were  employees  of  a  re- 
ceiver; Pickett  V.  Walsh,  6  L.R.A. 
(N.S.)  1067,  116  Am.  St.  Rep.  272, 
78  N.  E.  753,  7  Ann.  Cas.  638;  vii- 
fra,  §  311.  That  an  injunction 
should  not  issue  against  a  strike 
was  held  in  Aluminum  Castings  Co. 
V.  Local  No.  84,  I.  M.  U.,  197  Fed. 
221. 

19  Casey  v.  Cincinnati  Typ.  Union, 
45  Fed.  135;  Thomas  v.  Cincinnati, 
N.  O.  &  T.  Ry.  Co.,  62  Fed.  803; 
Oxley  Stave  Co.  v.  Coopers '  I.  Union, 
C.  C.  A.,  72  Fed.  695,  s.  0.,  Hopkins 
V.  Oxley  Stave  Co.,  83  Fed.  912, 
Caldwell,  J.,  dissenting;  Barr  v.  Es- 
sex Trades  Council,  53  N.  J.  Eq. 
101;  s.  c,  30  Atl.  881;  Beck  v.  Ry. 
Teamsters'  Pr.  Union,  118  Mich. 
497;  s.  c,  43  L.R.A.  406,  with  note; 
Carroll  v.  Ches.  &  0.  Coal  Agency 
Co.,  C.  C.  A.,  124  Fed.  305;  s.  c,  as 
Ches.  &  O.  Coal  Agency  Co.  v.  Fire 
Creek  C.  &  C.  Co.,  119  Fed.  942; 
Loewe  v.  California  State  Federa- 
tion of  Labor,  139  Fed.  71;  Huttig 
Sash  &  Door  Co.  v.  Fuelle,  143  Fed. 
363 ;  Seattle  Brewing  &  Malting  Co. 


V.  Hansen,  144  Fed.  1011 ;  Jensen  v. 
Cooks'  «fe  Waiters'  Union  of  Seattle 
(Wash.  1905),  81  Pac.  1069.  Cf. 
Hagan  v.  Blindell,  C.  C.  A.,  56  Fed. 
696;  Arthur  v.  Oakes,  C.  C.  A.,  63 
Fed.  310;  Elder  v.  Whitesides,  72 
Fed.  724;  Davis  v.  Zimmerman,  91 
Hun  (N.  Y.)  489;  Sinsheimer  v. 
United  a  W.  of  Am.,  77  Hun  (N. 
Y.)  215;  U.  S.  v.  Cassidy,  67  Fed. 
698;  Graham  v.  St.  Charles  St.  R. 
Co.,  47  La.  Ann.  215;  Quinn  v. 
Leathem  [1901],  Appeal  Cases,  495; 
Am.  Law  Review,  Nov.,  1899.  See 
Loewe  v.  Lawlor,  208  U.  S.  274,  52 
L.  ed.  488.  Contra,  Gray  v.  Building 
Trades  Council,  91  Minn.  171,  63 
L.R.A.  753,  103  Am.  St.  Rep.  477, 
97  N.  W.  633,  1  Ann.  Cas.  172;  Nat. 
Protective  Ass'n  v.  Gumming,  53 
App.  Div.  (N.  Y.)  227;  Marx  & 
Haas  Jeans  Clothing  Co.  v.  Watson 
(Mo.),  56  L.R.A.  951.  C/.  Reynolds 
v.  Everett,  144  N.  Y.  189;  Allen  v. 
Flood  [1898],  Appeal  Cases,  1;  Mo- 
gul S.  S.  Co.  V.  McGregor,  23  Q.  B. 
D.  598;  s.  c.  [1892],  Appeal  Cases, 
25;  Mayer  v.  Journeymen  S.  C. 
Ass'n,  47  N.  J.  Eq.  519;  Bohn  Mfg. 
Co.  V.  Hollis,  54  Minn.  223;  s.  c,  55 
N.  W.  1119;  Sweeny  v.  Torrence,  11 
Pa.  Co.  Ct.  R.  497;  Francis  v.  Flinn, 
118  U.  S.  385,  30  L.  ed.  165;  Worth- 
ington  V.  Waring,  157  Mass.  421; 
Pr.  &  Pub.  Co.  V.  Howell,  26  Ore. 
527;  s.  c,  28  L.R.A.  464;  De  Pear 
V.  Cook's  Union,  27  Chi.  Leg.  N. 
387;  Gompers  v.  Bucks  Stove  & 
Range  Co.,  221  U.  S.  418,  55  L. 
od.  797.  See  High  on  "Injunc- 
tions," §  1415e. 

20  Stephens    v.    Ohio    State    Tele- 
phone  Co.,   240   Fed.   759,   773,   per 


§276] 


AGAINST    STRIKERS 


i:n] 


connected  doe-s  not  justify  an  injunction  against  picketing  peace- 
fully eonducted.2^ 

When  the  citizenship  of  the  employer,  if  a  plaintiff,  would 
have  defeated  the  jurisdiction,  injunctions  against  intimidation 
by  strikers  have  been  granted  at  the  suit  of  trustees  of  mort- 
gages 22  and  of  bond  holders,^^  at  the  suit  of  subscribers  to  a  tele- 
phone company ,24  of  a  contractor  for  the  product  of  a  mine,25  ^^d 
of  contractors  for  the  manufacture  of  machinery.26  It  has  been 
held:  that  in  the  determination  of  the  diversity  of  citizenship 
between  the  parties  to  such  a  controversy  the  employer  who  is 
not  made  a  defendant  need  not  be  aligned  on  the  plaintiff's 
side  of  the  controversy.2^  That  where  a  telephone  company  was 
sued  by  its  subscribers  to  compel  the  company  to  repair  its  ap- 


Killits,    J.;     "No    picketing    wliieh 
is    conducted    in    a    manner    to    at- 
tract   and    retain    the    presence    of 
crowds  can  be  said  to  be  peaceful 
or  witliin  the  law."     See  the  lan- 
guage   of    Trieber,    J.,    in    Groger 
Grocery   and   Baking   Co.    v.   Retail 
Clerks '      International      Protective 
Ass'n,   250   Fed.   890,   895.     Differ- 
ent judges  have  regulated  picketing 
by    limiting    the    number    who    are 
l)ermitted  to  be  on  duty  at  one  time. 
In  the  Keith  Hippodrome  Case,  lim- 
iting the  nmnber  on  duty  outside  a 
theatre   to   two,   U.   S.   D.   C.   E.   D. 
Ohio,  not   reported,   cited,   261   Fed. 
804.      In    the    case    of    a    hotel,    to 
two.      Hotel    Stattler    case    not    re- 
ported,   cited,    261    Fed.    804.      In 
Dail-Overland      Co.      v.      Overland- 
Willys,  263  Fed.   171,  190,  per  Kil- 
lits,  J.,  the  case  of  a  large  factory 
Imilding      with      several      entrances, 
limiting  the  number  on  duty  at  any 
one  time  to  fifty,  and  those  on  duty 
at  a  single  gate  to  six.     The  court 
also  required  pickets  to  wear  badges 
conspicuously  numbered  that  in  case 
of  misconduct  they  might  be  easily 
identified.    Ibid.     And  later  prevent 
picketing  altogether.     Ibid.    See  J" 
fra,  §  276a. 


21  Iron  Holders'  Union  v.  Allis- 
Chalmers  Co.,  C.  C.  A.,  166  Fed. 
45 ;  Tri-City  Cent.  Trade  Council  v. 
America  Steel  Foundries,  C.  C.  A., 
238  Fed.  728,  734. 

22  Ex  parte,  Haggerty,  1-4  Fed. 
441. 

23  Carter  v.  Fortney,  17U  Fed. 
46:'.. 

24  Stephen  v.  Ohio  State  Tel.  Co.. 
240  Fed.  759. 

25  Carroll  v.  Ches.  &  O.  Coal 
Agency  Co.,  C.  C.  A.,  124  Fed.  305 ; 
s.  c,  as  Ches.  &  O.  Coal  Agency 
Co.  v.  Fire  Creek  C.  &  C.  Co.,  119 
Fed.  942. 

23  NiU>s  Bement  Pond  Co.  v.  Iron 
Holders'  Union,  246  Fed.  8.")1. 

27  Carroll  v.  Ches.  &  Ohio  Coal 
Agency  Co.,  C.  C.  A.,  124  Fed.  305, 
s.  C.  119  Fed.  942;  Dail-Overland 
Co.  v.  Willys-Overland,  263  Fe.!. 
171;  Yonnegut  Mach.  Co.  v.  Toledo 
Macli.  &  Tool  Co.,  263  Fed.  192. 
197.  See  West  v.  U.  S.,  C.  C.  A., 
258  Fed.  413,  417,  418.  Contra, 
Niles  Bement  Pond  Co.  v.  Iron 
Holders'  Union,  C.  C.  A.,  258  Fed. 
498.  reversing  246  Fed.  851. 


1372 


INJUNCTIONS 


[§276 


pliances  and  to  keep  them  in  good  repair  and  in  condition  for 
operation,  an  injunction  granted  against  the  members  of  a 
labor  union  who  had  been  induced  to  intervene  the  suits  should 
not  be  dismissed  because  of  collusion  although  the  company  did 
not  oppose  the  relief,  sought  by  the  plaintiff.^s 

It  has  been  held:  in  such  a  suit  by  bond  holders,  they  need 
not  show  a  demand  on  the  mortgagor  or  on  their  trustee  before 
beginning  such  a  suit,^^  and  that  the  mortgagor  which  is  the 
employer  is  not  a  necessary  party .^^  But  in  such  a  suit  by  the 
trustee  of  a  mortgage  which  had  not  matured  the  injunction  was 
denied  when  the  mortgagee  was  not  joined  and  had  not  refused 
to  sue ; "  it  may  be  doubted  whether  such  decisions  would  have 
been  made  in  any  case  in  which  trade  unions  were  not  unfavor- 
ably effected.^^ 

There  has  been  said  to  be  more  justification  for  an  injunction 
against  a  sympathetic  strike  or  secondary  boycott,  than  against 
strikers  directly  injured  by  the  acts  which  they  seek  to  prevent.*' 

An  injunction  against  intimidation  by  strikers  was  granted, 
at  the  suit  of  a  contractor  with  the  party  against  whom  the  strike 
was  instituted,  when  the  citizenship  of  the  latter  would  not 
have  sustained  the  jurisdiction :  ^4  but  one  was  denied  in  a  suit 
by  the  trustee  of  an  unmatured  mortgage  upon  the  employer's 
property,  when  the  mortgagor  was  not  joined  and  had  not 
refused  to  sue.*^ 

The  importance  of  this  class  of  injunctions  is  very  great.  For 
the  acts  forbidden  are  in  most  cases  offenses  punishable  by  the 
criminal  law,  those  charged  with  which  would,  in  the  absence 


28  Stephens  v.  Ohio  State  Tele- 
phone Co.,  240  Fed.  759;  Niles  Be- 
ment  Pond  Co.  v.  Iron  Holders' 
Union,  246  Fed.   851. 

29  Carter  v.  Fortney,  170  Fed. 
463. 

30  Carter  v.  Fortney,  170  Fed. 
463,  aff'd  C.  C.  A.,  203  Fed.  454, 
s.  c,  172  Fed.  722. 

31  111.  Trust  &  Savings  Bank  v. 
Minton,  120  Fed.  187. 

32  Niles  Benient  Pond  Co.  v.  Iron 
Holders'  Union,  246  Fed.  851. 

33  See  Geoffrey  Konta  in  Colum- 
bia Law  Eev.,  X.,  p.  652,  approving 


Schlang  v.  Ladies'  Waist  Makers' 
Union,  124  N.  Y.  Supp.  289;  Irv- 
ing V.  Joint  Dist.  Council  of  New 
York  and  Vicinity  of  United 
Brotherhood  of  Carpenters,  180 
Fed.  896;  Tunstall  v.  Stearns  Coal 
Co.,  C.  C.  A.,  192  Fed.  808. 

34  Carroll  v.  Ches.  &  0.  Coal 
Agency  Co.,  C.  C.  A.,  124  Fed. 
305;  s.  c,  as  Ches.  &  O.  Coal 
Agency  Co.  v.  Fire  Creek  C.  &  C. 
Co.,  119  Fed.   942. 

35  Illinois  Trust  &  Sav.  Bank  v. 
Minton,  120  Fed.  187. 

sese  Debs,   158   U.   S.    564,   581, 


§276a]  RESTRICTIONS    BY    THE    CI>AYTOX    ACT  1373 

of  an  injunction,  have  the  right  to  a  trial  by  jury ;  and  the 
object  of  an  injunction  is  to  deprive  them  of  that  right. ^^  This 
so-called  "government  by  injunction"  has  been  sharply  criti- 
cized. The  jurisdiction  of  courts  of  equity  to  entertain  a  suit 
for  such  an  injunction  has  been  sustained  by  the  Supreme  Court 
of  the  United  States  ;^"'^  but  the  propriety  of  many  whidi  have 
been  issued  lias  not  yet  been  decided  l)y  that  tiibunal. 

§  276a.  Restriction  upon  such  injunctions  by  the  Clayton 
Act.  Complaints  of  the  use  of  injiuiction  orders  by  the  euurts 
of  the  United  States  caused  the  passage  of  the  law  of  Oct.  15, 
1914,  known  as  the  Clayton  Act.  This,  after  requiring  security 
and  making  new  regulations  concerning  the  practice  before  mo- 
tions for  temporary  restraining  orders  and  preliminary  injunc- 
tions, which  are  subsequently  quoted,^  continues,  "No  restrain- 
ing order  or  injunction  shall  be  granted  by  the  courts  of  the 
United  States,  or  a  judge  or  the  judges  thereof,  in  any  case 
between  an  employer  and  employees,  or  between  employers  and 
employees,  or  between  employees,  or  between  persons  employed 
and  persons  seeking  employment,  involving  or  growing  out  of,  a 
dispute  concerning  terms  or  conditions  of  employment,  unless 
necessary  to  prevent  irreparable  injurv'  to  property,  or  to  a  prop- 
erty right,  of  the  party  making  application,  for  which  injury 
there  is  no  adequate  remedy  at  law,  and  such  property  or  prop- 
erty right  must  be  described  with  particularity  in  the  applica- 
tion, which  must  be  in  writing  and  sworn  to  by  the  applicant 
or  by  his  agent  or  attorney. 

"And  no  such  restraining  order  or  injunction  shall  prohibit 
any  person  or  persons,  whether  singly  or  in  concert,  from  termi- 

582,  .^9  L.  ed.  1092,  1101,  1102;   U.  sidy,  67  Fed.  698,  78.^,  for  a  refusal 

S.   V.  Debs,   64  Fed.   724;   Keynolds  of   a   jury   to    convict   in   a   similar 

V.  Davis,   198  Mass.  294,  17  L.R.A.  case,   upon   much   stronger   evidence 

(N.S)    162,  84  N.  E.  457.     The  ap-  tlian  that  offered  against  Debs, 

plication    of    Debs    for    a    writ    of  36  AV   Dobs,    158   U.   S.   564,   581, 

error  to  review  the  proceedings  upon  39  L.  ed.  1092,  1101;  In  re  Lenuon. 

his  trial   for   contempt   was   denied.  166  U.  S.  548,  41  L.  ed.  1110. 

Be   Debs,    158    U.    S.   564,    57.'^,    15  37  But  see   In   re   Debs,   58   U.   S. 

Sup.   Ct.   900,   39   L.   ed.   1092.     As-  564,  581,  592,  597,   39  L.  od.   1092, 

sistant    Attorney    General    Whitney  1101,  1105,  1107. 

told  the  author  that,  if  the  writ  of  §  276a.     1  See    mfra.    §§291-297, 

error   had    not    been    dismissed,    the  Act  of  Oct.  15;  1914,  ch.  323,  §  19, 

Department  of  Justice  would  have  38  St.  at  L.  738,  Comp.  St.,  §  1243c. 
confessed  error.     See  U.  S.   v.  Cas- 


1374  INJUNCTIONS  [§  276a 

natiug  any  relation  of  emploj-ment,  or  from  ceasing  to  perform 
an}^  work  or  labor,  or  from  recommending,  advising,  or  persuad- 
ing others  by  peaceful  means  so  to  do;  or  from  attending  at 
any  place  where  any  such  person  or  persons  may  lawfully  be, 
for  the  purpose  of  peacefully  obtaining  or  communicating  in- 
formation, or  from  peacefully  persuading  any  person  to  work 
or  to  abstain  from  working;  or  from  ceasing  to  patronize  or 
to  employ  any  party  to  such  dispute  or  from  recommending,  ad- 
vising, or  persuading  others  by  peaceful  and  lawful  means  so  to 
do;  or  from  paying  or  giving  to,  or  withholding  from,  any  per- 
son engaged  in  such  dispute,  any  strike  benefits  or  other  moneys 
or  things  of  value ;  or  from  peaceably  assembling  in  a  lawful 
manner,  and  for  lawful  purposes ;  or  from  doing  any  act  or  thing 
which  might  lawfully  be  done  in  the  absence  of  such  dispute  by 
any  party  thereto;  nor  shall  any  of  the  acts  specified  in  this 
paragraph  be  considered  or  held  to  be  violations  of  any  law  of 
the  United  States. ' '  ^ 

The  Act  of  July  13,  1913,  providing  for  arbitration  between 
carriers  and  employees,  provides:  "Nothing  in  the  Act  con- 
tained shall  be  construed  to  require  an  employee  to  render  per- 
sonal service  without  his  consent,  and  no  injunction  or  other 
legal  process  shall  be  issued  which  shall  compel  the  performance 
of  any  labor  or  service."  ' 

It  has  been  held  by  a  single  judge  that  no  part  of  this  section 
of  the  Clayton  Act  regulating  and  restraining  orders  and  in- 
junctions and  applies  to  an  injunction  issued  to  the  suit  of  the 
United  States.*  It  has  been  suggested  that  it  may  not  apply 
to  a  suit  by  a  customer  of  the  employer.^  It  has  been  held:  to 
apply  to  a  suit  between  the  employer  and  the  officers  of  a  trade 
union  who  have  ordered  a  strike  but  who  are  not  employed  by 
him  when  it  affects  the  conditions  of  employment ;  ^  but  not  to 
employees  who  have  quit  to  enforce  a  secondary  boycott ;  ^*  nor 
to  employees  all  of  whose  positions  have  been  filled.^"* 

2  Ibid.,    §20,    38    St.    at    L.    738,  phone     Co.,     240     Fed.     759,     770. 
Comp.  St.,   §  1243d.  6  Duplex    Printing    Press    Co.    v. 

3  38  S.  at  L.  107,  ch.  6,  §  8,  Comp.  Deering,    C.    C.    A.,    252    Fed.    722, 
St.,   §  8673,  subd.  5.  747,  748. 

4U,   S.  V.  Hayes,  D.   C,  D.  Ind.,  6a  Vonnegut  Mach.   Co.   v.   Toledo 

Anderson,     J.— Nov.,     1919,     infra,  Maeh.    &    Tool    Co.,    263    Fed.    192, 

§  276c.  204,  a  ease  of  doubtful  authority. 

5  Stephens    v.     Ohio    State    Tele-  6b  Dail-Overland     Co.     v.     Willys- 


§  276a] 


RESTKICTIUMS    BY    THE    CLAYTON    ACT 


i:nr) 


It  has  been  said  that  the  words  "peaceful"  and  "lawful"  in 
the  statute  signify  what  would  be  lawful  if  no  strike  existed^ 


Overland,   263    Fed.    171,   188,   190; 
a  case  of  doubtful  authority. 

7  Stephens  v.  Ohio  State  Telephone 
Co.,  240  Fed.  759,  771,  773,  774, 
per  Killits,  J.:  "It  is  well  to  note, 
and  not  to  lose  sight  of,  the  fact 
that  the  words  'lawfully,'  'peace- 
fully,' 'lawful,'  'peaceful,'  domi- 
nate the  thought  of  the  second  para- 
graph of  the  section  in  question; 
they  control  its  meaning,  as  they 
control  both  the  court  and  the  par- 
ties to  a  labor  controversy.  The 
statute  but  enacts  the  position  which 
courts  have  universally  taken ;  there 
is  nothing  new  in  it,  for  we  hold 
that  no  case  exists  where  a  court 
lias  attempted  jurisdiction  to  con- 
trol lawful  and  peaceable  action  by 
injunction,  although  it  may  seem 
that  sometimes  judgment  may  have 
been  faulty  as  to  what  particular 
action  was  'unlawful'  or  provoca- 
tive of  a  disturbed  peace.  The 
challenge  to  the  court  is  to  define 
'peaceful  picketing'  within  the  lim- 
its of  this  section.  This  does  not 
seem  to  be  an  occasion  for  an  at- 
tempt at  an  academic  formula, 
which,  in  any  detail,  would  meet 
all  exigencies  possible  in  labor  con- 
troversies, if  one  could  be  drawn 
up. 

"Each  case  presents  its  own  pe- 
culiar questions.  An  act  may  be 
lawful  and  peaceful,  or  just  the 
opposite,  according  to  its  setting. 
It  is  easier,  and  far  more  practi- 
cable, therefore,  to  deal  in  prohibi- 
tions than  in  affirmations.  Broa<i 
generalizations,  however,  are  easily 
framed,  because,  if  we  just  keep 
in  mind  the  prevalence  in  the  stat- 
ute of  the  qualifying  idea  of  '  peace- 


ful' and  'lawful'  action,  we  can- 
not be  misled.  The  best  we  have 
seen  is  one  lately  appearing  in  a 
newspaper  devoted  to  labor  inter- 
ests.    It  is: 

' '  What  constitutes  peaceful  pick- 
eting may  be  answered  by  any  fair- 
minded  man,  if  this  question  is 
asked,  'Would  this  be  lawful  if  no 
strike  existed?'  " 

"We  accept  this  as  a  very  good 
test,  and  apply  it  to  the  concrete 
questions  of  fact  arising  in  this 
ease,  as  propounded  in  the  several 
informations,  with  conclusions  cer- 
tain to  come  to  every  'fair-minded 
man. '     *     *     * 

' '  It  must  be  borne  in  mind  that 
not  every  act  is  lawful  against 
which  no  positive  provision  of  law 
exists.  Many  acts  are  unlawful  for 
which  no  affirmative  penalty  is  en- 
acted, or  against  which  no  redress 
at  law  is  po.ssible;  and  some  while 
within  the  prohibitions  of  positive 
law,  may  not  offer  a  practicable 
occasion  for  redress  at  law,  yet  a 
court  of  equity  may  be  asked  to 
jirotcct  the  intended  sufferer  from 
the  annoyance  and  damage  they 
may  create,  and  such  a  court  may 
enforce  its  prohibitions.  No  legis- 
lation yet  exists  to  the  contrary, 
if  legislation  depriving  courts  of 
such  power  is  possible.  Some  arts, 
lawful  when  but  once  performed, 
may  become  unlawful  when  repeated 
for  the  purpose  of  annoyance  or 
damage,  and  may  be  restrained  when 
tliat  purpose  becomes  plain. 

' '  The  right  of  free  speech  does 
not  give  anyone  the  privilege  to 
force  his  views  upon  others,  to  com- 
pel  others   to   listen.      The  right   of 


1376 


INJUNCTIONS 


[§  276a 


It  has  been  held  that  the  statute  does  not  forbid  an  injunction 


the  others  to  listen  or  to  decline 
to  listen  is  as  sacred  as  that  of 
free  speech.  It  is  clear  that,  if  one 
does  not  desire  speech  of  another,  he 
may  as  surely  have  his  privacy 
therefrom  as  the  privacy  of  his 
home.  It  is  undeniable  that  the 
so-called  right  of  peaceful  persua- 
sion may  be  lawfully  exercised  only 
upon  those  who  are  willing  to  listen 
to  the  persuasive  arguments. 

"Again,  he  has  the  right  of 
privacy  and  freedom  from  moles- 
tation of  private  persons,  hostile  or 
otherwise,  at  his  home,  at  his  lodg- 
ing, at  his  place  of  work;  he  has 
the  right  to  walk  the  streets  witli- 
out  annoyance  from  the  unwelcome 
attentions  of  others,  so  long  as  he 
is  conducting  himself  in  a  lawful 
manner.  Again,  the  right  of  one 
to  the  privacy  of  his  features,  to 
the  end  that  he  may  not  be  photo- 
graphed without  his  consent,  is 
manifest.  It  has  been  sustained  by 
the  courts  in  actions  for  damages. 
Again,  the  right  of  one  man  to 
work  is  as  much  entitled  to  respect 
as  the  right  of  another  to  cease 
work  or  to  strike. 

"Again,  the  right  of  an  employ- 
er to  engage  whomsoever  he 
chooses  is  as  strong  as  the  right 
of  an  employee  to  refuse  to  work. 
Again,  the  right  of  an  employer  to 
have  access  to  and  from  his  place 
of  business,  and  his  right  to  have 
the  streets  and  public  highways  in 
front  of  his  place  of  business,  kept 
clear  of  crowds,  bystanders,  and 
curiosity  seekers,  is  as  strong  as 
the  right  to  picket,  and  no  picket- 
ing which  is  conducted  in  a  manner 
to  attract  and  retain  the  presence 
of  crowds  can  be  said  to  be  peace- 
ful or  within  the  law. 


"It  is  safe  and  proper  generali- 
zation that  any  action  having  in  it 
the  element  of  intimidation  or  coer- 
cion, or  abuse,  physical  or  verbal, 
or  of  invasion  of  rights  of  privacy, 
when  not  performed  under  sanc- 
tions of  law  by  those  lawfully  em- 
l^owered  to  enforce  the  law,  is  un- 
lawful; every  act,  of  speech,  of 
gesture,  or  of  conduct,  which  'any 
fair-minded  man '  may  reasonably 
judge  to  be  intended  to  convey  in- 
sult, threat  or  annoyance  to  an 
other,  or  to  work  assault  or  abuse 
upon  him,  is  unlawful.  Not  a  syl- 
lable of  the  Clayton  Act,  or  any 
other  law,  whether  of  legislation 
of  Congress  or  of  the  common  law. 
sanctions  any  of  the  incidents  we 
have  referred  to.  They  are  to  be 
condemned  as  legally  inexcusable — 
such  must  be  the  verdict  of  'any 
fair-minded  man  ' — nothing  can  be 
said  in  justification. 

' '  These  propositions  are  so  ele- 
mental that,  but  for  the  confusion 
which  exists  in  many  minds  that 
a  labor  controversy  affects  the  com- 
monest rules  of  life,  it  would  seem 
a  waste  of  time  to  state  them.  The 
existence  of  a  strike  does  not  make 
that  lawful  which  would  otherwise 
be  unlawful.  These  personal  rights 
to  which  we  have  alluded  are,  in 
each  instance,  precisely  those  which 
the  striker  himself  would  insist 
upon  were  conditions  reversed.  They 
are  also  so  plain,  and  the  answers 
to  the  questions  involving  them  so 
certain,  that  one  called  upon  to  en- 
force the  law,  if  he  has  but  ordinary 
intelligence,  will  plainly  fail  to  do 
his  duty  when  in  his  presence  a 
fellow  citizen  suffers  an  invasion  of 
his  rights  of  this  character." 


§  27Ga] 


aKSTKICTlOXS  BY  THE  CLAYTON  ACT 


i:;77 


ajraiiist  a  secoiiclaiy  boycott,^  or  a  strike  to  cumpcl  the  employer 
to  maintain  a  closed  shop  excluding  persons  not  members  of  a 


union. 


9 


The  act  does  not  forbid  an  injunction  against  trespass,  on  an 
emploj^cr's  propert}',^"  or  threats,  abusive  language,  and  insults 
addressed  to  those  who  remain  or  enter  into  his  emploj-ment  or 
deal  with  him.^^ 

It  has  been  held  lliat  thi-  act  does  not  forbid  the  inclusion  in 
the  injunction  of  a  prohibition  in  general  language  such  as  a 
provision  restraining  the  doing  of  "any  acts  or  things  which 
may  interfere  in  any  respect  with  the  performance  of  the  duties 
and  obligations  of  the  defendant  company  as  a  common  car- 
rier." ^^    Prior  to  the  passage  of  this  law  it  was  held  to  be  too 


8  Duplex  Printing  Press  Co.  v. 
Deering,  C.  C.  A.,  2.52  Fed.  722, 
746,  748;  U.  S.  v.  Norris,  255  Fed. 
423.  See  Vonncgut  Maeh.  Co.  v. 
Toledo  Mach.  &  Tool  Co.,  263  Fed. 
192. 

9  Ibid. 

lOHitchnian  Coal  &  Coke  Co.  v. 
Mitchell,  245  U.  S.  229,  262.  Alaska 
S.  S.  Co.  V.  International  Long- 
shoremen 's  Ass  'n,  C.  C.  A.,  236 
Fed.  964;  Kroger  Grocery  and 
Baking  Co.  v.  Eetail  Clerks'  Inter- 
national Protective  Ass'n,  250  Fed. 
890,  895. 

11  Montgomery  v.  Pac  El.  Ey. 
Co.,  C.  C.  A.,  258  Fed.  382;  Alaska 
S.  S.  Co.  V.  International  Long- 
shoremen's Ass'n,  C.  C.  A.,  236 
Fed.  964;  Stephens  v.  Ohio  State 
Telephone  Co.,  240  Fed.  759. 

12  Stephens  v.  Ohio  State  Telojilione 
Co.,  240  Fed.  759,  776,  per  Killets, 
J.:  "That  portion  most  vigorously 
attacked  as  too  broad  and  indefinite 
is  the  provision  restraining  the  do- 
ing of  'any  a<'ts  or  things  which 
may  interfere  in  any  respect  with  the 
performance  of  the  duties  and  obli- 
gations of  the  defendant  company  as 
a  common  carrier. '     This  provision 


is  as  definite  as  it  is  possible  to 
make  it.  It  is  this  paramount  in- 
terest in  the  public  which  may  not 
suffer  interference  as  the  result  of 
the  controversy,  and  it  is  impossible 
to  set  out  every  act  or  line  of  con- 
duct which  might  work  interference. 
Labor  controversies  are  not  unex- 
pected or  unusual ;  courts  recognize 
that  they  are  possible;  courts  also 
notice  that  the  existence  of  one 
produces  some  embarrassment  to 
the  employer  affected  in  the  man- 
agement of  his  business.  Whether 
that  embarrassment  arises  to  a  state 
of  'interference,'  as  that  term 
means  in  cases  of  this  sort,  depends 
upon  liow  the  controversy  is  con- 
ducted on  either  or  both  sides.  A 
total  cessation  of  the  employer's 
business,  even  of  that  of  a  public 
utility,  might  not  indicate  an  illegal 
interference  under  some  circum- 
stances. A  strike  JawfuUy  con- 
ducted is  not  an  illegal  interference, 
although  it  might  effect  even  a  to- 
tal paralysis  of  a  public  utility 's 
activities,  resulting  in  great  public 
suffering  and  loss.  The  right  to 
abandon  employment,  by  individuals 
singly   or   in  association,  is  unques- 


1378 


INJUNCTIONS 


[§276b 


indefinite  to  grant  an  injunction  forbidding  employees  of  a  rail- 
road "from  so  quitting  the  service  of  the  said  receivers  with  or 
without  notice  so  as  to  cripple  the  property  or  prevent  or  hinder 
the  operation  of  said  railroad. ' '  ^^ 

§  276b.  Injunctions  under  the  Antitrust  Law  against  strik- 
ers. The  first  Antitrust  Law  of  July  2,  1890  provides  "Ever;» 
contract,  combination  in  the  form  of  trust  or  otherwise,  or  con- 
spiracy in  restraint  of  trade  or  commerce  among  the  several 
states,  or  with  foreign  nations  is  hereby  declared  to  be  illegal."  ^ 

"Every  contract  combination  in  form  of  trust  or  otherwise, 
or  conspiracy  in  restrain  of  trade  or  commerce  in  any  territory 
of  the  United  States  or  the  District  of  Columbia,  or  in  restraint 
of  trade  or  commerce  between  any  such  Territory  or  Territories 
or  between  any  such  Territory  and  another,  and  any  State  or 
States  or  the  District  of  Columliia,  or  with  foreign  nations,  or 
with  the  District  of  Columbia  and  any  State  or  States  or  foreign 
nations,  is  hereby  declared  illegal."  ^ 


tioued,  and  the  law  maintains  the 
right  of  such  late  employees,  com- 
monly known  as  strikers,  to  'peace- 
fully' persuade  others  to  abandon 
the  same  employment,  or  to  refrain 
from  engaging  in  employment,  and 
to  that  end  'peaceful  picketing'  is 
permitted  for  purposes  of  observa- 
tion and  information  and  'peaceful 
persuasion. '  But  no  single  act,  to 
which  we  have  alluded  above,  can 
be  possibly  considered  to  be  a 
necessary,  and  hence  an  excusable, 
accompaniment  of  peaceful  pickot- 
ijig.  Such  acts  tend  inevitably  to 
that  '  interference '  which  the  law 
condemns. ' ' 

13  Arthur  v.  Oakes,  C.  C.  A.,  63 
Fed.  310,  313,  327,  per  Mr.  Jus- 
tice Harlan:  "In  our  opinion  the 
order  should  describe  more  dis- 
tinctly than  it  does  the  strikes  which 
the  injunction  was  intended  to  re- 
strain. That  employees  and  their 
associates  may  not  unwittingly 
place   themselves    in    antagonism    to 


the  court's  authority,  and  become 
subject  to  fine  and  imprisonment 
as  for  contempt,  the  order  should 
indicate  more  clearly  than  has  been 
done  that  the  strikers  intended  to 
be  restrained  were  those  designed 
to  physically  in  the  operation  of 
the  road,  or  to  interfere  with  tlieir 
employees  who  do  not  wish  to  quit, 
or  to  prevent,  by  intimidation  or 
other  wrongful  modes,  or  by  any 
device,  the  employment  of  others  to 
take  the  places  of  those  quitting, 
and  not  such  as  were  the  result  of 
the  exercise  by  employees  in  peace- 
able ways  of  rights  clearly  belong- 
ing to  them,  and  were  not  designed 
to  embarrass  or  injure  others,  or 
to  interfere  with  the  actual  posses- 
sion and  management  of  the  prop- 
erty by  the  receivers. ' ' 

§  276b.  1  Act  of  .July  2,  1890,  ch. 
647,  §  1,  26  St.  at  L.  209,  Comp.  St., 
§  8820. 

2  Ibid,  §  3,  26  St.  at  L.  209,  Comp. 
St.,  §  8822. 


;^  276(']  AGAINST  STRIKERS   INDKK  INTKRSTATK  COM.MKRCE  l-WV   137'J 

The  Clayton  Act  of  Oct.  1."),  1914  provides  ^'The  several  dis- 
trict courts  of  the  Ignited  States  are  hereby  invested  with  juris- 
diction to  prevent  and  restrain  violations  of  this  Act,  and  it  shall 
be  the  duty  of  the  several  district  attorneys  of  the  United  States, 
ill  ihcir  respective  districts  under  tlic  direction  of  the  Attorney 
General,  to  institute  i)roc(  edinos  in  (Miuiiy  1o  prevent  and  re- 
strain such  violations.''^ 

"Anv  person,   firm,   corporation,    or   association   shall    be   t-ii- 
titled  to  sue  for  and  have  injunctive  relief,  in  any  court  of  the 
United    States-  havint-'    jurisdiction    over    the    parties,    against 
threatened  loss  or  damage  by  a  violation  of  the  antitrust  laws, 
including  sections  two,  three,  seven,  and  eight  of  this  Act,  when 
and  under  the  same  conditions  and  principles  as  injunctive  re- 
lief against  threatened  conduct  that  will  cause  loss  or  damage 
is  granted  by  courts  of  equity,  under  the  rules  governing  such 
proceedings,  and   upon   the  execution  of  proper  bond   against 
damages  for-  an  injunction  improvidently  granted  and  a  show- 
ing that  the  danger  of  irreparable  loss  or  damage  is  immediate, 
a   preliminary  injunction   may    issue;   Provided,    That    nothing 
herein  contained  shall  be  construed  to  entitle  any  person,  firm, 
corporation  or  association,  except  the  United  States,  to  bring 
suit  in  etiuity  for  injunctive  relief  against  any  common  carrier 
subject  to  tlic  provisions  of  the  Act  to  regulate  commerce,  ap- 
proved February  fourth,  eighteen  hundi-ed  and  eighty-seven,  in 
respect  of  any  matter  subject  to  the  regulation,  supervision,  or 
othei-  jurisdiction   of  the  Interstate  Commerce  Commission."* 
Under  the  Act  of  July  2,  1890  it  was  held  at  circuit  that  an 
injunction  might   issue  under  this  statute  to  restrain  a  strike 
which  caused  an  obstruction  to  the  mail  or  an  obstruction  to 
Interstate  Commerce.^ 

§276c.  Injunctions  to  prevent  obstructions  to  interstate 
commerce.     The  United  States  may  sue  to  enjoin  an  obstruc- 

3  Act  of  Oct.  15,  1914,  ch.  323,  5  U.  S.  v.  Debs,  64  Fed.  724,  746, 
U5  38  St.  at  L.  736,  Comp.  St.,  writ  of  error  dismissed  Be  Debs. 
§883511.  Ke-eiiaeting  in  substance  158  X^  S.  564,  573,  39  L.  ed.  109U. 
the  first  sentence  of  §  4  of  the  Act  The  Supreme  Court  reserved  its  do- 
of  July  2,  1890.  cision  on  this  point.     See  Thompson 

4  Ibid,  §16,  ch.  323,  38  St.  at  L.  v.  Cincinnati  N.  O.  &  T.  P.  Ry.  (V... 
737,  Comp.  St.,  §  8835o.     See  f^iipra,  62  Fed.  m\. 

§  77a. 


1380  '  INJUNCTIONS  [  §  276c 

tion  to  Interstate  Commerce  and  to  the  carriage  of  the  mail 
caused  by  a  strike  of  railroad  emplo3'ees.^ 

The  prior  law  provided  "It  shall  be  unlawful  for  any  common 
carrier  subject  to  the  provisions  of  this  act  to  make  or  give  anj- 
undue  or  unreasonable  preference  or  advantage  to  any  particular 
person,  company,  firm,  corporation,  or  locality,  or  any  particular 
description  of  traffic,  in  any  respect  whatsoever,  or  to  subject 
any  particular  person,  company,  firm,  corporation,  or  locality, 
or  any  particular  description  of  traffic,  to  any  undue  or  un- 
reasonable prejudice  or  disadvantage  in  any  respect,  Avhatso- 
ever.  Everj^  common  carrier  subject  to  the  provisions  of  this 
act  shall,  according  to  their  respective  powers,  afford  all  rea- 
sonable, proper,  and  equal  facilities  for  the  interchange  of  traffic, 
between  their  respective  lines,  and  for  the  receiving,  forward- 
ing, and  delivering  of  passengers  and  property  to  and  from 
their  several  lines  and  those  connecting  therewith  and  shall  not 
discriminate  in  their  rates  and  charges  between  such  connect- 
ing lines ;  but  this  shall  not  be  construed  as  requiring  any  such 
common  carrier  to  give  the  use  of  its  tracks  or  terminal  facilities 
to  another  carrier  engaged  in  a  like  business. "  ^  It  was 
held  at  circuit  that  an  injunction  might  be  issued  against  a 
strike  or  boycott  by  the  employee  of  a  railroad  company  who 
refused  to  receive,  handle,  or  haul  interstate  freight  from  an- 
other railroad  company  which  was  the  complainant,  their  em- 
ployer being  joined  with  them  as  a  party  to  the  suit ;  '  and  against 
men  who,  while  remaining  in  the  employ  of  a  railway  company 
refused  to  haul  pullman  cars.* 

Before  and  since  the  amendment  injunctions  have  been  granted 
against  obstructions  to  the  interstate  operations  of  telephone 
companies  by  their  employees.    In  the  former  case  ^  by  conduct 

§  276o.     1  Re  Debs,  158  U.  S.  564,  24  St.  at  L.  380,  Comp.  St.,  §  8565. 

573;    s.  c,  U.   S.  v.  Debs,  61   Fed.  3  Chicago  B.  &  Q.  Ey.  Co.  v.  Bur- 

724;  Chicago  B.  &  Q.  Ry.  Co.  v.  Bur-  liBgton  C.  R.  &  N.  Ry.  Co.,  34  Fed. 

lington  C.  R.  &  N.  Ry.  Co.,  34  Fed.  481 ;    Toledo   A.  A.   &  M.  R.   Co.  v. 

481;   Per  Love,  J.;   see  Re  Lennan,  Pennsylvania  Co.,  54  Fed.  730,  19  L. 

166    U.    S.    548,    41    L.    Ed.    1110;  R.  A.  387. 

Southern     California     Ry.     Co.     v.  4  Southern    California    R.    Co.    v. 

Rutherford,  62  Fed.  796;  see  U.  S.  v.  Rutherford,  62  Fed.  96. 

Cassidy,  67  Fed.  698.  6  Stevens  v.   Ohio   State   Tel.   Co., 

2  Act  of  Feb.  4,  1887,  ch.  104,  §  3,  240  Fed.  759. 


>j  276i']  A(;.\i.\sr  stkikkks  under  i.\tek«tate  commekce  i.aw  IHSl 

otherwise  unlawful.  In  the  latter,^  the  injunction  forbade  call- 
ing of  strikes,  holdino;  that  such  conduct  is  a  criminal  offense; 
but  the  jury  failed  to  convict. 

The  Act  of  August  10,  1917,  provides,  "That  on  and  after 
the  approval  of  this  Act,  any  person  or  persons  who  shall,  dur- 
ing the  war  in  which  the  United  States  is  now  engaged,  know- 
ingly and  willfully,  by  physical  force  or  intimidation  by  threats 
of  physical  force  obstruct  or  retard  or  aid  in  obstructing  or 
retarding,  the  orderly  conduct  or  movement  in  the  T'nited  States 
of  interstate  of  foreign  commerce,  or  the  orderly-  make-up  or 
movement  or  disposition  of  any  train  or  the  movement  or  dis- 
position of  any  locomotive,  car,  or  other  vehicle  on  any  railroad 
or  elsew'here  in  the  United  States  engaged  in  interstate  or  foreign 
commerce  shall  be  deemed  guilty  of  a  misdemeanor,  and  for  every 
such  offense  shall  be  punishable  b}^  a  fine  of  not  exceeding  $100, 
or  by  punishment  for  not  exceeding  six  months,  or  by  both  such 
fine  and  imprisonment,  and  the  President  of  the  United  States 
is  hereby  authorized  whenever  in  his  judgment  the  public  in- 
terest requires,  to  employ  the  armed  forces  of  the  United  States 
to  prevent  any  such  obstruction  or  retardation  of  the  passage  of 
the  mail,  or  of  the  orderly  conduct  or  movement  of  interstate  or 
foreign  commerce  in  any  part  of  the  United  States  or  any  train, 
locomotive  ear  or  other  vehicle  upon  any  railroad  or  elsewhere 
in  the  United  States  engaged  in  interstate  or  foreign  commerce ; 
Provided,  That  nothing  in  this  section  shall  be  construed  to 
repeal,  modify  or  effect  either  section  six  or  section  twenty  of 
an  Act  entitled  "An  Act  to  supplement  existing  laws  against 
unlawful  restraints  and  monopolies,  and  for  other  purposes  ap- 
proved October  fifteenth,  nineteen  hundred  and  fourteen." 

"That  during  the  continuance  of  the  war  in  which  the  United 
States  is  now  engaged  the  President  is  authorized,  if  he  finds  it 
necessary  for  the  national  defense  and  security  to  direct  that 
such  traffic  or  such  shipments  of  commodities  as.  in  his  judgment 
may  be  essential  to  the  national  defense  and  security  shall  have 
preference  or  priority  in  transportation  by  any  common  carrier 
by  railroad,  water,  or  otherwise.  He  may  give  these  directions 
at  and  for  such  times  as  he  mci\-  determine,  and  may  modify, 
change,  suspend,  or  annul  them,  and  for  any  such  purpose  he  is 

6Kinlock   Tel.   Co.  v.  :\9  Strikins:       IT.  S.  D.  C.  Ed.  Mo..  Mar.  3,  1920, 
Wiremen     and     others.      Ex     parte       U.  S.  B.  S.,  §  5440. 
Fed.  Prac.  Vol.  11—17 


1382  INJUNCTIONS  [§  276c 

hereby  authorized  to  issue  orders  direct,  or  through  such  person 
or  persons  as  he  may  designate  for  the  purpose  or  through  the 
Interstate  Commerce  Commission.    Officials  of  the  United  States 
when  so  designated,  shall  receive  no  compensation  for  their  serv- 
ices rendered  hereunder.     Persons  in  the  employ-  of  the  United 
States   so   designated   shall   receive   such   compensation   as   the 
President  may  fix.     Suitable  offices  may  be  rented  and  all  nec- 
essary  expenses,    including  compensation   of  persons   so   desig- 
nated, shall  be  paid  as  directed  by  the  President  out  of  funds 
which  may  have  been  or  may  be  provided  to  meet  expenditures 
for  the  national  security  and  defense.     The  common  carriers 
subject  to  the  Act  to  regulate  commerce  or  as  many  of  them  as  . 
desire  so  to  do  are  hereby  authorized  without  responsibility  or 
liability  on  the  part  of  the  United  States,  financial  or  otherwise, 
to  establish  and  maintain  in  the  city  of  Washington  during  the 
period  of  the  war  an  agency  empowered  by  such  carriers  as 
join  in  the  arrangement  to  receive  in  behalf  of  them  all  notice 
and  service  of  such  order  and  directions  as  may  be  issued  in 
accordance  with  this  Act,  ;iiid  service  upon  such  agency  shall 
be  good  service  as  to  all  the  carriers  joining  in  the  establish- 
ment thereof.    And  it  shall  be  the  duty  of  any  and  all  the  officers, 
agents  or  employees  of  such  carriers  by  railroad  or  water  or 
otherwise,  to  obey  strictly  and  conform  promptly  to  such  orders, 
and  failure  knowingly  and  willfully  to  comply  therewith,  or  to 
do  or  perform  whatsoever  necessary  to  the  prompt  execution  of 
such  order,  shall  render  such  officers,  or  agents  or   employees 
guilty  of  misdemeanor,  and  any  such  officer,  agent  or  employee 
shall  upon  conviction  be  fined  not  more  than  ii^5,000  or  imprison- 
ment for  not  more  than  one  year  or  both  in  the  discretion  of  the 
court.     For  the  transportation  of  persons  or  property,  in  carry- 
ing out  the  orders  and  directions  of  the  President  just  and  rea- 
sonable rates  shall  be  fixed  by  the  Interstate  Commerce  Com- 
mission ;  and  if   the  transportation  be  for  the  Grovernment  of 
the  Ignited  States,   it  shall  be  paid  for  currently  or  monthly 
by  the  Secretary  of  the  Treasury  out  of  any  funds  not  other- 
wise appropriated.     Any  carrier  complying  with  any  order  or 
direction  for  preference  or  priority   herein  authorized  shall  be 
exempt  from  any  and  all  provisions  in  existing  law  imposing 
civil  and  criminal  pains,  penalties  obligations  or  liabilities  upon 


§276d]  AGAINST    STRIKERS    INDEH    I.KVER    ACT  l'^^'^ 

carriers  by  reason  of  oivn.g  preference  priority  in  cou.pliance 
witli  sueh  order  or  direction.""^ 

H  276d    Injunctions  i;nder  the  Act  of  Aug.  10,  1917,  for  the 
conservation  of  supply  and  control  of  distribution  of  neces- 
saries.    The  Act  of  Aug.  10.  IDIT,  t<.r  the  conservat.ou  ..t  sui- 
plv  and  control   of  distribution  of  necessaries,  which  ^s  some- 
times <-alle.l   the  Lever   Act   as   amen.b'd   ..n   October   ^^^   l-'l-'- 
amongst   other   things  provides:     -Tiial    by   reason  of  the  ex- 
istence of  a  state  of  war,  it  is  essential  to  the  national  security 
and  defense,  for  the  successful  prosecution  of  the  war  and  tor 
the  support  and  maintenance  of  the  Army  and  Xavy,  to  assiire 
an  adequate  supply  and  equitable  distribution,  and  to  facditate 
the  movement  of  foods,  feeds,  wearing  apparel    containers  pri- 
marilv   designed    or    intended    for    containing   ^^'^^^ /^^^/^ 
fertilizers;  fuel  in-luding  fuel  oil,  and  natural  gas,  and  feitil./.ei 
and  fertiliser  ingredients,  tools,  utensils,  '-f^'^'^^'T^ 
and  equipment  required  for  the  actual  production  of  foods,  feeds 
and  fuel,  hereafter  in  this  Act  called  necessaries;  to  prevent, 
locallv  or  generally,  scarcity,  monopolization,  hoarding,  injun- 
Ons   speculation,    manipulation,    and    private  ^-^^-^^   f  f  "^'^ 
such  Tupplv,  distribution,  and  movement;  and  to  establish  and 
maintain  governmental  control   of  such   necessaries  during  the 
war     For  such  purposes  th.  instrumentalities,  means,  methods, 
powers,  authorities,  duties,  obligations,  and  prohibitions    here- 
inafter ^et   forth  are  created,  estal)lished,   conferred,  and  pre- 
scribed     The  President  is  authorized  to  make  such  regulations 
and  to  issue  such   orders  as  are  essential   effectively  to   carry 

out  the  provisions  of  this  Act."  ^  -iif^iK-  t,, 

"It  is  herebv  made  unlawful  for  any  person  willfulh  to 
de^-trov  miv  necessaries  for  the  purpose  of  enhancing  the  price 
or'  restricting  the  .supply  thereof;  knowingly  to  commit  wa.te 
o,.  willfullv  to  permit  preventable  deterioration  of  any  neces- 
saries in  or  in  connection  with  their  production  "^a'^"^:^'^^"^^' 
or  distribution;  to  hoard,  as  defined  in  section  six  o.  t^^^  Act 
anv  necessaries;  to  monopolize  or  attempt  to  monopolize.  eith*i 
loCallv  or  generally,  any  necessaries;  to  engage  in  any  discrimi- 
natory and  unfair,  or  any  deceptive  or  wasteful  practice  or  de- 

7  Act  of  A...  10.  T917,  40  St.  at  §  276.1.     1  ^40  St.  at  I.  274.^s 

L     272     ch     .-.1,    ro,u,..    St.,    §8.-.0:;.       =nnondo,l    41    St.    at    L..   Comp.    St., 
subd.  10.  -'l^-^'-^- 


1384  INJUNCTIONS  1  §  276d 

vice,  or  to  make  any  unjust  or  unreasonable  rate  or  charge  in 
handling  or  dealing  in  or  with  any  necessaries;  to  conspire, 
combine,  agree,  or  arrange  with  any  other  person,  (a)  to  limit 
the  facilities  for  transporting,  producing,  harvesting,  manufac- 
turing, supplying,  storing,  or  dealing  in  any  necessaries;  (b) 
to  restrict  the  supply  of  any  necessaries;  (c)  to  restrict  dis- 
tribution of  any  necessaries:  (d)  to  prevent,  limit,  or  lessen 
the  manufacture  oi-  production  of  any  necessaries  in  order  to 
enhance  the  price  thereof;  or  (e)  to  exact  excessive  prices  for 
any  necessaries,  or  to  aid  or  abet  the  doing  of  any  act  made 
unlawful  by  this  section.  Any  person  violating  any  of  the  pro- 
visions of  this  section  upon  conviction  thereof  shall  be  lined 
not  exceeding  $5,000  or  be  imprisoned  for  not  more  than  two 
years,  or  both:  Provided,  That  this  section  shall  not  apply 
to  any  farmer,  gardener,  horticulturist,  vineyardist,  planter, 
ranchman,  dairyman,  stockman,  or  other  agriculturist,  with  re- 
spect to  the  farm  products  produced  or  raised  upon  land  owned, 
leased,  or  cultivated  by  him:  Provided  further,  That  nothing 
in  this  Act  shall  be  construed  to  forbid  or  make  unlawful  col- 
lective bargaining  by  any  cooperative  association  or  other  as- 
sociation of  farmers,  dairymen,  gardeners  or  other  producers  of 
farm  products  with  respect  to  the  farm  products  produced  or 
raised  by  its  members  upon  land  owned,  leased,  or  cultivated 
by  them".  "2 

Under  this  statute  the  United  States  obtained  an  injunction, 
restraining  the  officers  of  the  International  Union  and  United 
Mine  Workers  of  America  from  issuing  an  order  for  a  strike  by 
miners  and  mine  workers  in  bituminous  mines  and  from  any  acts 
of  encouragement  or  assistance  of  from  such  a  strike  includ- 
ing the  payment  for  strike  benefits,  of  any  money  previously 
accumulated  for  assistance  during  strikes  and  also  command- 
ing them  to  issue  a  withdrawal  and  cancellation  of  their 
strike  order  previously  issued  and  to  communicate  the  same  to 
the  district  and  local  unions  and  to  members  of  the  union,  as 
fully  and  completely  as  the  strike  order  had  been  previously 
distributed  and  circulated.^    Before  the  amendment  of  1919,  it 

2  Ibid,    §2,    Comp.    St.,    SllSVsff-  pendix.      Cf.    Montgomery    v.    Pac 

3U.  S.  V.  Hayes,  D.   C,  D.  Ind.,  Elec.   Ey.    Co.,    C.    C.    A.,    258   Fed. 

Anderson,  J.;  Nov.  8,  1919.    The  in-  .■!82. 

junction  is  printed  in  fnll  in  the  ap- 


§277] 


TO    RESTRAIN    INFRINGEMENT    OF   PATENTS 


1385 


was  held  that  the  statute  authorized  an  iujunction  against  the 
order  of  a  strike  of  the  employees  in  a  large  number  of  stores 
where  the  plaintiff  sold  perishable  food.* 

§  277.  Injunctions  to  restrain  the  infringement  of  patents. 
Injunctions  to  restrain  tlie  infringement  of  patents  and  copy- 
rights are  of  ancient  use  in  equity.  They  are  founded  upon  both 
the  irreparable  injury  that  would  otherwise  be  caused  to  the 
complainant,  and  the  desire  of  the  court  to  prevent  a  iiuilti- 
plicity  of  suits.^ 

fense  for  any  person  to  restrict  the 
<listribution  of  any  necessaries,  or  do 
anythinfj  whereby  transportation, 
producing,  harvesting,  manufactur 
ing,  supply,  or  dealing  in  any  neces- 
saries of  life  is  interfered  with.  If 
these  defendants,  by  reason  of  their 
acts,  caused  a  loss  of  all  this  perish- 
able food,  they  were  certainly  guilty 
of  a  violation  of  this  act,  and  in  the 
opinion  of  the  court  it  would  be 
wholly  immaterial  whether  it  was 
done  by  violence,  threats,  intimida- 
tion, or  otherwise.  The  owner  of 
this  perishable  food  would  be  en- 
titled to  the  aid  of  a  court  of  equity 
of  the  United  States  to  restrain 
them  from  acts  which  will  cause  still 
greater  destruction  of  such  food. 
The  evidence  shows  that  this  plain- 
tiff, in  every  one  of  the  stores,  dealt 
Ml  meats,  butter,  eggs,  vegetables, 
oleomargarine,  lard,  and  other  per- 
'shable  goods,  that  they  were  also 
bakers,  and  dealt  in  breads,  cakes, 
pies,  and  pastries;  and,  of  course, 
these  defendants,  who  had  been  em 
ployees  of  the  plaintiff,  knew  these 
facts,  and  they  must  have  known 
that,  if  the  stores  were  closed,  es- 
pecially on  Friday  and  Saturday, 
that  these  food  products  would 
naturally  deteriorate,  if  not  alto- 
gether spoil  and  be  wasted." 

§  277.  1  Eden  on  Injunctions, 
chs.  xii  anil  xiii ;  Daniell  's  Ch.  Pr. 
Mtli    Am.   oi^^    HU2  1R4S;    Hogg   v. 


4  Kroger  Grocery  and  Bakery  Co. 
v.  Ketail  Clerks'  International  Pro- 
tective Ass'n,  250  Fed.  890,  895,  Per 
Trieber,  J.:  "Probably  2,000,000  of 
men  and  women  have  been  taken 
from  their  usual  vocations  to  engage 
in  this  great  struggle.  The  govern- 
ment is  dependent  upon  the  work 
of  wage-earners  and  manufacturers 
in  order  to  carry  this  war  to  success, 
and,  while  the  court  is  not  willing  to 
say  that  an  unjustifiable  strike  in 
times  like  this  is  treason,  it  comes 
mighty  close  to  it,  morally.     *      -     * 

"The  next  question  is:  Were  the 
acts  of  the  defendants  unlawful  by 
reason  of  the  fact  that  by  ordering 
this  strike,  and  inducing  so  many  of 
the  employees  of  the  plaintiff  to 
withdraw  from  employment,  85  of 
the  140  retail  stores  of  this  plain- 
tiff had  to  be  closed  by  reason  of  the 
strikes,  causing  a  loss  of  the  value 
of  $36,000  of  perishable  food,  such 
an  unlawful  act  as  would  justify  the 
court,  in  view  of  the  Food  Conserva- 
tion Act  of  Congress,  to  grant  the 
writ  of  injunction.  That  act  pro- 
vides: 

"  'That  it  is  unlawful  under  this 
act  for  any  person  or  persons  to 
knowingly  commit  waste  or  willfully 
to  permit  preventable  deterioration 
of  any  necessaries  in  or  in  connec- 
tion with  their  production  or  dis- 
tribution. ' 

"And    furthor   it    makes   it   .nr   of 


1366  INJUNCTIONS  [§277 

This  inherent  power  of  the  courts  is  confirmed  in  the  United 
States  by  statute.  The  provision  of  the  Revised  Statutes  author- 
izing injunctions  to  restrain  the  infringement  of  patents  is  as 
follows:  "The  several  courts  vested  with  jurisdiction  of  cases 
arising  under  the  patent  laws  shall  have  power  to  grant  injunc- 
tions according  to  the  course  and  principles  of  courts  of  equity, 
to  prevent  the  violation  of  any  right  secured  by  a  patent,  upon 
such  terms  as  the  court  may  deem  reasonable ;  and  upon  a  decree 
being  rendered  in  any  such  case  for  an  infringement,  the  com- 
plainant shall  be  entitled  to  recover,  in  addition  to  the  profits 
to  be  accounted  for  by  the  defendant,  the  damages  the  com- 
plainant has  sustained  thereby;  and  the  court  shall  assess  the 
same  or  cause  the  same  to  be  assessed  under  its  direction.  And 
the  court  shall  have  the  same  power  to  increase  such  damages, 
in  its  discretion,  as  is  given  to  increase  damages  fdund  by  ver- 
dicts in  actions  in  the  nature  of  actions  of  trespass  upon  the 
case."  ^ 

It  seems  to  have  been  formerly  the  opinion  that  courts  of 
equity  would  not  interfere  to  protect  a  patent  right  by  injunc- 
tion, until  the  right  has  been  established  at  law ;  but  since  Lord 
Eldon's  time  their  jurisdiction  thus  to  interfere,  when  the  title 
of  a  complainant  is  established  by  the  preponderance  of  evi- 
dence, has  been  settled.*  In  a  decree  to  compel  the  assign- 
ment of  a  patent  an  injunction  restraining  its  future  use  by  the 
assignor  may  be  included.*  But  in  a  suit  to  restrain  an  infringe- 
ment there  can  be  no  injunction  against  the  payment  by  the 
defendant  of  dividends  although  it  has  transferred  its  business 
and  tangible  assets.*^  The  remedy  in  such  a  case  is  an  applica- 
tion for  a  receiver.*'' 

Unless  the  validity  of  a  patent  has  been  adjudicated  in  another 
case,  a  preliminary  injunction  to  restrain  its  infringement  will 
nearly  always  be  refused,  if  the  defendant  has  ample  pecuniary'' 

Kirby,  8  Ves.  215;   Wilkins  v.  Aik-  Picrpont   v.  Fowle,   2   W.  &  M.  2.^; 

in,   17  Ves.  422.     See   High   on   In-  Motte    v.    Bennett,    2    Fisher,    642; 

junctions  §§  984-952.  Kerr  on   Injunctions,   272. 

2TJ.  S.  R.  S.,   §4921.     See  mpra,  4  Chadeloid    Chem.    Co.    v.    H.    B. 

§§  146,   175  and  29   St.   at  L.   695;  Chalmers  Co.,  C.  C.  A.,  243  Fed.  606. 

cited  supra,  §  61.  *a  Manton-Gaulin      Mfg.      Co.      v. 

3  Universities  of  Oxford  and  Cam-  Anier.  Bottle  Cap  Co.,  250  Fed.  865. 

bridge    v.    Richardson,    6   Ves.    689 ;  4b  ibid. 
Hill    V.    Thompson,    3    Meriv.    622; 


§277] 


TO    RESTRAIN    INFRIXGEMENT    OF    FATEXTa 


l:{8" 


responsibility,  or  gives  security  against  loss  to  the  plaiutifl!,  and 
is  willing  to  keep  an  account  of  his  manufacture,  use,  and  sale 
of  the  article  claimed  to  be  patented,  and  the  damages  which  the 
plaintiff  will  suffer  can  be  readily  reckoned  in  money.* 

Before  a  preliminary  injunction  will  be  granted  against  the 
alleged  infringement  of  a  patent,  it  should  be  shown:  that  the 
plaintift"s  right  to  the  exclusive  use  of  tlie  invention  is  elear,^ 
and  usually  tiiat  it  has  been  established  by  a  prior  adjudication*^ 
or  by  public  acciuiescenee ;  ^  and  that  tliere  is  no  room  for  reason- 
able doubt  as  to  the  infringement.^ 

Before  the  creation  of  the  Circuit  Courts  of  Appeal,  the  rule 
was  that  if  previous  adjudications  in  the  same  or  other  Circuit 
Courts  had  established  the  validity  of  the  plaintiff's  patent,  a 


6  Foster  v.  Moore,  1  Curt.  279; 
Morris  v.  Shelbourne,  8  Blatchf. 
266;  Gilbert  &  B.  Mfg.  Co.  v.  Buss- 
ing, 12  Blatchf,  426;  Swift  v.  Jenks, 
19  Fed.  641 ;  Hoe  v.  Boston  D.  Adv. 
Co.,  14  Fed.  914;  IT.  S.  Annunciator 
Co.  V.  Sanderson,  3  Blatchf.  184. 
But  see  Gibson  v.  Van  Dresar,  1 
Blatchf.  532;  Tracy  v.  Torrey,  2 
Elatchf.  275;  Parkhurst  v.  Kins- 
man, 2  Blatchf.  78;  McWiUiams 
Mfg.  Co.  V.  Blundell,  11  Fed.  419. 
The  rules  of  decision  upon  motions 
for  injunctions  in  patent  suits  are 
explained  in  §  277,  supra. 

eWelsbach  Lt.  Co.  v.  Cosmopoli- 
tan Inc.  G.  L.  Co.,  100  Fed.  648; 
Bradley  &  H.  Mfg.  Co.  v.  Charles 
Parker  Co.,  17  Fed.  240;  Consol.  S. 
V.  Co.  V.  Crosby  S.  G.  &  L.  Co.,  7 
Fed.  768;  Illingworth  v.  Spalding, 
9  Fed.  1.54.  For  a  ease  where  the 
complainant's  rights  were  held  so 
clear  as  to  warrant  a  preliminary 
injunction  %nthout  a  prior  adjudica- 
tion or  public  acquiescence,  see  Wil- 
son V.  Consol.  S.  S.  Co.,  C.  C.  A., 
88  Fed.  286. 

7  Duff  Mfg.  Co.  V.  Kalamazoo  liy. 
Sig.  Co.,  100  Fed.  357;  Eichniond 
Milk  Co.  V.  DeClyne,  90  Fed.  661. 


8  Palmer  P.  T.  Co.  v.  Newton  K. 
Works,  73  Fed.  218;  Duff  Mfg.  Co. 
V.  Kalamazoo  Ry.  Sig.  Co.,  100  Fed. 
357;  Silver  &  Co.  v.  J.  P.  Eustis 
Mfg.  Co.,  130  Fed.  348.  Ei^lit 
months  of  public  acquiescence  were 
held  to  be  enough.  Wilson  v.  Jeffer- 
son, 78  Fed.  366.  C/.  Johnston  R. 
Co.  V.  Avery  Mach.  Co.,  28  Fed.  193; 
Stahl  v.  Williams,  52  Fed.  645.  Five 
jears  of  public  acquiescence  were 
held  sufficient.  McDowell  v.  Kurtz, 
C.  C.  A.,  77  Fed.  206.  So  of  six 
years.  White  v.  Hunter,  47  Fed. 
819;  Nat.  Typ.  Co.  v.  N.  Y.  Typ. 
Co.,  46  Fed.  144. 

9  Whippany  Mfg.  Co.  v.  United  I. 
F.  Co.,  C.  C.  A.,  87  Fed.  215;  Duff 
V.  Kalamazoo  Ry.  Sig.  Co.,  100  Fe»l. 
357;  Richriiond  Mica  Co.  v.  Do 
Clyne,  90  Fed.  661 ;  Standard  Paint 
Co.  V.  Reynolds,  43  Fed.  304;  Jolm- 
son  R.  R.  S.  Co.  v.  Union  S.  &  S. 
Co.,  C.  C.  A.,  55  Fed.  487;  Hatch  S. 
Ry.  Co.  V.  El.  Storage  Ry.  Co.,  C.  C. 
A.,  100  Fed.  975;  Jefferson  Electric 
Light,  Heat  &  Power  Co.  v.  Westing- 
house  Electric  &  Mfg.  Co.,  C.  C.  A.. 
1.34  Fed.  392.  Cf.  Sawyer  Sj'.  <■ 
V.  Turner,  55  Fed.  979. 


1388 


INJUNCTIONS 


[§277 


preliminary  injunction  would  be  granted  him  almost  as  of  course 
in  a  subsequent  suit,  to  prevent  the  infringement  of  the  same 
by  a  person  not  a  party  to  the  former  proceeding ;  i°  unless  the 
latter  could  produce  new  evidence  that  was  conclusive,^!  ^j.  g^Q^ 
that  such  judgments  were  obtained  by  consent,  collusion  or 
fraud,!^  or  without  any  substantial  contest.^^  This  is  still  the 
rule  in  the  same  circuit,^*  and  has  been  applied  when  the  previous 
adjudication  was  a  judgment  at  law  rendered  upon  a  verdict, 
as  well  as  when  an  interlocutory  decree  in  equity.^^  It  has  spe- 
cial force  when  the  Supreme  Court  of  the  United  States,!^  q^  ^be 
Circuit  Court  of  Appeals  for  that  circuit,"  has  established  the 


lOOrr  V.  Littlefield,  1  W.  &  M. 
13;  Thayer  v.  "Wales,  9  Blatchf 
170;  s.  c,  5  Fisher,  130;  Kirby 
Bung  Mfg.  Co.  V.  Wliite,  1  Fed. 
604;  but  see  Many  v.  Sizer,  1  Fisli. 
Pat.  Cas.  31. 

11  Page  V.  Holmes  B.  A.  Tel.  Co., 
2  Fed.  300;  s.  c,  18  Blatchf.  118; 
Bragg  V.  Mayor,  etc.  of  N.  Y.,  141 
Fed.  118.  But  see  Motion  Picture 
Patents  Co.  y.  Laemmle,  178  Fed. 
104. 

12  Am.  Nic.  P.  Co.  v.  Elizabeth, 
4  Fish.  189;  Page  v.  H.  B.  A.  Tel. 
Co.,  2  Fed.  330;  American  M.  Puri- 
fier Co.  V.  Vail,  15  Blatchf.  31o; 
but  see  Orr  v.  Littlefield,  1  W.  &  M. 
13.  Where,  after  proofs  had  been 
taken,  the  defendant  made  default, 
the  court  merely  examined  the  case 
sufficiently  to  dispose  of  the  actual 
controversy  and  refused  to  pass  up- 
on the  questions  arising  in  detail 
so  as  to  enable  the  decision  to  be 
used  in  a  case  of  a  subsequent  in- 
fringement. Victor  Talking  Mach. 
Co.  V.  Leed  &  Catlin  Co.,  180  Fed. 
778. 

13  N.  Y.  Button  Works  v.  Crescent 
Button   Co.,   185   Fed.  820. 

14  Elite  Pottery  Co.  v.  Dececo  Co., 
C.  C.  A.,  150  Fed.  581;  Cohen  v. 
Stephenson  &  Co.,  C.  C.  A.,  142  Fed. 
467;  A.  B.  Dick  Co.  v.  Pomeroy  Du 


plicator  Co.,  117  Fed.  154;  Walker 
Patent  Pivoted  Bin  Co.  v.  Miller 
&  England,  132  Fed.  823;  Warren 
Bros.  Co.  V.  City  of  Montgomery, 
172  Fed.  414;  Interurban  Ey.  &  T. 
Co.  V.  Westinghonse  E.  &  Mfg.  Co., 
C.  C.  A.,  186  Fed.  166;  Schmeiser 
Mfg.  Co.  V.  Lilly,  189  Fed.  631; 
Mine  &  Smelter  Supply  Co.  v. 
Braeckel  Concentrator  Co.,  197  Fed. 
897;  Johns-Pratt  Co.  v.  Economy 
Fuse  &  Mfg.  Co.,  216  Fed.  639; 
Engineer  Co.  v.  Blaisdell-Canady 
Co.,  C.  C.  A.,  220  Fed.  673. 

15  Panoulias  v.  Hawley,  178  Fed. 
101;  Sherman-Clay  &  Co.  v.  Search- 
light Horn  Co.,  C.  C.  A.,  214  Fed. 
99.  But  see  Fountain  Ele.  Floor 
Box  Corporation  v.  Steel  City  Ele. 
Co.,  C  C.  A.,  223  Fed.  544;  Cheat- 
ham Ele.  Switching  Device  Co.  v. 
Bklyn  Eapid  Transit  Co.,  229  Fed. 
165. 

16  Am.  Bell  Tel.  Co.  v.  McKees- 
port  Tel.  Co.,  57  Fed.  661 ;  Westing 
house  Air-Brake  Co.  v.  Christensen 
Eng.  Co.,  113  Fed.  594;  Cutler-Ham- 
mer Mfg.  Co.  v.  Hammer,  124  Fed. 
222. 

17  Armat  Moving  Picture  Co.  v. 
Edison  Manufacturing  Co.,  121  Fed. 
559;  Penfield  v.  Potts,  C.  C.  A. 
126  Fed.  475,  478;  Grinnell  Wash- 
ing   Mach.    Co.    V.    Clarinda    Lawn 


§277] 


TO    RESTRAIN'    INFRINGEMENT    OF    PATENTS 


1389 


validity  of  the  patent.  It  is  usually  followed  when  the  decision 
was  by  the  Circuit  Court  of  Appeals,"  or  by  a  District  Court," 
of  another  circuit.    The  effect  as  an  adjudication  of  a  decree  sus- 


Mower  Co.,  237  Fed.  98;  Motion 
Picture  Patents  Co.  v.  Laemnilc, 
178  Fed.  104;  Victor  Talking  Maoi. 
Co.  V.  Sonora  Phonograph  Co.,  ISS 
Fed.  330;  Walker  Patent  Pivoted 
Bin  Co.  V.  Bernard  Gloekler  Co., 
188  Fed.  435;  Sanitary  Street 
Flushing  Mach.  Co.  v.  City  of  Am- 
sterdam, 225  Fed.  389;  Todd  Pro 
tectograph  Co.  v.  New  Era  Mly. 
Co.,  236  Fed.  768;  Weber  Ele.  Co. 
V.  Conn.  Ele.  Mfg.  Co.,  257  Fed. 
429. 

18  Leeds   &   Catlin    Co.    v.    Vi.'toi 
Talking  Mach.  Co.,  213  U.  S.  :i("i 
312,  29  Sup.  Ct.  Rep.  495,  53  L.  ed. 
805;   Cohen  v.  Stephenson  &  Co.,  C. 
C.    A.,     142     Fed.     467;     Thomson- 
Houston  Electric  Co.  v.  Holland,  \^ 
Fed.  903;  Calculagraph  Co.  v.  Auto 
matic    Time    Stamp    Co.,    149    Fud 
436;  Badische  Anilin  &  Soda  Fabrik 
V.  A.  Klipstein  &  Co.,  125  Fed.  54o ; 
Consolidated    Eubber    Tire    Co.     v. 
Diamond  Rubber  Co.  of  New  York 
C.  C.  A.,  157  Fed.  677;   Timolat   v. 
Phila.  Pneumatic  Tool  Co.,  123  F.-.l. 
899;  Westinghouse  Electric  &  Mfg. 
Co.   V.   Condit   Electrical    Mfg.    > 
159    Fed.    144;    Gormley    &    .Jefir.v 
Tire  Co.  v.  U.  S.  Agency,  C.  C.  A. 
177    Fed.    691;     Underwood    Tyye 
writer   Co.    v.    Fox    Typewriter    Co., 
181    Fed.    530;    Interurban    Ry.    & 
Terminal  Co.  v.  Westinghouse  Elc' 
trie  &  Mfg.  Co.,  C.  C.  A.,  186  Fed. 
166,  170,  108  C.  C.  A.,  298;  Calcula 
graph  Co.  v.  Automatic  Time  Stamp 
Co.,  C.  C.  A.,  187  Fed.  276;  Parson:- 
Non-Skid  Co.  v.  E.  J.  Wilis  Co.,  190 
Fed.    333;    Acme    Acetylene    Apiii; 
ance    Co.    v.    Commercial    Acetykr,. 
Co.,  C.  C.  A.,  192  Fed.  .321;  Walli-i 


stein  V.  Christian  Feigenspan,  Inc., 
C.  C.  A.,  215  Fed.  919;  Cincinnati 
Butchers'  Supply  Co.  v.  Walker  Bin 
Co.,  C.  C.  A.,  230  Fed.  453;  Thatch- 
er V.  Inhabitants  of  Town  of  Fal- 
mouth, C.  C.  A.,  241  Fed.  869; 
Manton-Gaulin  Mfg.  Co.  v.  Ameri- 
can Bottle  Cap  Co.,  250  Fed.  865; 
Weber  El.  Co.  v.  Cutler-Hammer 
Mfg.  Co.,  C.  C.  A.,  256  Fed.  31; 
Underfeed  Stoker  Co.  of  America  v. 
Riley,  207  Fed.  962;  Hildreth  \. 
Auerbach,  223  Fed.  545. 

19  Leeds  &  Catlin  Co.  v.  Vi.ior 
Talking  Mach.  Co.,  213  U.  S.  3iti 
312,  29  Sup.  Ct.  495,  53  L.  ed.  80.-.; 
Interurban  Ry.  &  Terminal  Co.  v. 
Westinghouse  Electric  &  Mfg.  (  . 
C.  C.  A.,  186  Fed.  166,  170,  108  • 
C.  A.,  298;  Schmeiser  Mfg.  Co.  v. 
Lilly,  189  Fed.  631;  Acme  Acetylene 
Appliance  Co.  v.  Commercial  Acety- 
lene Co.,  C.  C.  A.,  192  Fed.  321  ; 
Fireball  Gas  Tank  &  Illuminating 
Co.  V.  Commercial  Acetylene  Co.. 
C.  C.  A.,  198  Fed.  650;  Wayne  Mftr. 
Co.  V.  Coffield  Motor  Washer  Co.. 
C.  C.  A.,  209  Fed.  614;  Kawueer 
Mfg.  Co.  V.  Vent  well  Store  Fro  i 
Co.,  210  Fed.  459.  See  Westin- 
house  Electric  &  Mfg.  Co.  v.  Sut 
ter,  194  Fed.  888 ;  Hamomnd  Buckl.> 
Co.  v.  Weld,  C.  C.  A.,  72  Fed.  171  : 
Westinghouse  El.  &  Mfg.  Co.  v. 
Royal  Weaving  Co.,  115  Fed.  733; 
Western  El.  Co.  v.  Keystone  Tel. 
Co.,  15  Fed.  809;  Brunswick-Balke- 
Colender  Co.  v.  Koehler  &  Hinri'lis. 
115  Fed.  648;  U.  S.  Gramaphoue 
Co.  v.  Seaman,  C.  C.  A.,  113  Fed. 
745;  Brill  v.  Peckham  Mfg.  Co.. 
129  Fed.  139. 


1390 


INJUNCTIONS 


[§277 


taining  a  patent  is  not  suspended  by  taking  a  decree  therefrom.^ 
It  has  been  held :  that  the  issue  of  a  writ  of  certiorari  from  the 
Supreme  Court  does  not  impair  the  effect  as  a  precedent  of  the 
decision  of  the  Circuit  Court  of  Appeals.^i  When  a  vendee  has 
been  enjoined  from  using  certain  apparatus  and  this  injunction 
has  been  affirmed  by  the  Circuit  Court  of  Appeals,  an  action  for 
the  purchase  price  was  dismissed  although  the  vendor  was  not 
a  party  to  the  suit  in  which  the  injunction  was  granted.^^ 
When  a  preliminary  injunction  has  been  granted  upon  the  faith 
of  such  an  adjudication,  the  appellate  court  should  ordinarily 
affirm  the  same  upon  an  interlocutory  appeal,  without  passing 
upon  the  validity  of  the  patent  or  the  merits.23  But  it  has  been 
said  that  the  doctrine  depends  upon  comity ,2*  and  is  not  a  rule 
of  law,  but  one  of  practice,  convenience  and  expedience.^^  When 
a  judge  is  clear  in  his  conviction  that  a  previous  decision,  made 
in  another  District  Court  against  another  defendant,  has  been 
wrongfully  decided,  he  is  not  bound  to  follow  it.^^    He  will  not 


20  Treibacher  Chemische  Weiki 
Gesellschaft  Mit  Beschrankter  Ha: 
tung  V.  Wolf  Safety  Lamp  Co.  o 
America,  Inc.,  215  Fed.  126. 

21  Minerals  Separation  v.  Butto  >;^ 
Superior  Copper  Co.,  227  Fed.  401. 

22DeForest  Eadio  Tel.  &  Tel.  Co. 
V.  Standard  Oil  Co.,  C.  C.  A.,  2..o 
Fed.  346. 

23  Leeds  &  Catlin  Co.  v.  Victor 
Talking  Mach.  Co.,  213  U.  S.  301, 
312,  29  Sup.  Ct.  495,  53  L.  ed.  805; 
Fireball  Gas  Tank  &  111.  Co.  v. 
Commercial  Acetylene  Co.,  239  U.  S. 
156;  Interiirban  Ey.  &  Terminal 
Co.  V.  Westinghouse  Electric  &  Mfg. 
Co.,  C.  C.  A.,  186  Fed.  166,  17U. 
108  C.  C.  A.  298. 

24  See,  however,  Mine  &  Smelter 
Supply  Co.  V.  Braeekel  Concentrator 
Co.,   197  Fed.   897. 

25  Mast,  Foos  &  Co.  v.  Stover  Mfg. 
Co.,  177  U.  S.  485,  488,  489,  44  L. 
ed.  856,  858.  See  Comity  in  the 
Federal  Courts  by  Arthur  M.  Broun. 
Harv.  Law  Eev.  xxviii,  p.  589. 


26  Welsbach  Lt.  Co.  v.  Cosmopoli- 
tan Inc.  El.  Co.,  100  Fed.  648 ;  Horn 
&  Br.  Mfg.  Co.  V.  Pelzer,  91  Fed. 
665;  Nat.  Cash  Eeg.  Co.  v.  Amer. 
C.  E.  Co.,  C.  C.  A.,  53  Fed.  367; 
Wanamaker  v.  Enterprise  Mfg.  Co 
C.  C.  A.,  53  Fed.  791;  Cimiotti  U. 
Co.  V.  Am.  Fur.  Eef.  Co.,  120  Fed. 
672;  Diamond  Match  Co.  v.  Unio  , 
Match  Co.,  129  Fed.  602;  Westing- 
house  El.  &  Mfg.  Co.  V.  Condit  EI. 
Mfg.  Co.,  159  Fed.  144;  Underwood 
Typewriter  Co.  v.  Fox  Typewriter 
Co.,  181  Fed.  530;  Baldwin  v. 
Abererombie  &  Fitch  Co.,  C.  C.  A., 
228  Fed.  895;  Cheatham  E.  Switch- 
ing D.  Co.  v.  Brooklyn  E.  T.  Co., 
238  Fed.  172;  Vulcan  Soot  Cleaner 
Co.  V.  Amoskeag  Mfg.  Co.,  C.  C.  A., 
255  Fed.  88.  See  also  Hatch  S.  B. 
Co.  V.  El.  St.  Ey.  Co.,  C.  C.  A.,  100 
Fed.  975;  Consol.  El.  S.  C.  v.  Ac- 
cumulator Co.,  C.  C.  A.,  55  Fed. 
485;  Am.  Paper  P.  &  B.  Co.  v.  Nat. 
F.  B.  &  P.  Co.,  C.  C.  A.,  51  Fed. 
259;  N-.  Y.  Filter  Mfg.  Co.  v.  Niag- 


§277] 


TO    RESTRAIN    INFRINGEMENT    OF    PATENTS 


1391 


do  so  when  uew  evidence  is  introduced  of  .such  clear  and  per- 
suasive character  as  to  leave  no  fair  doubt  that  the  court  in  the 
former  case  would  have  reached  a  different  conclusion  had  such 
evidence  been  before  it.^""  A  difference  of  ruling  must  be  ef- 
fected, not  by  a  change  in  the  conclusions  or  judgments  which 
dictated  the  foi-mer  rulings,  but  in  the  evidence  commanding 
different  findings  of  facts  from  those  on  which  the  former  con- 
clusions of  law  were  based.  The  evidence  must  differ  also  in  kind 
as  well  as  the  means  by  which  it  is  introduced.^  Insufficient 
weight  was  given  below  to  the  doctrine  of  eomity.^^ 

When  the  only  disputed  question  was  the  priority  of  invention, 
similar  weight  has  been  given  to  the  decisions  of  the  Supreme 
Court  of  the  District  of  Columbia  or  Court  of  Appeals  of  that 
District  upon  appeals  from  the  decisions  of  the  Patent  Office  in 
interference  proceedings,^"  and  to  the  decisions  of  the  Commis- 
sioner of  Patents  in  such  proceedings ;  ^*  but  not  in  controversies 
concerning  the  patentability  or  novelty  of  the  patent,  or  other 
disputed  points.^^  Decisions  of  the  Canadian  courts  are  also 
entitled  to  great  consideration  upon  such  a  motion.^^ 


ara  Falls  W.  W.  Co.,  C.  C.  A.,  80 
Fed.  924;  Adams  v.  Tannage  P.  Co., 
C.  C.  A.,  81  Fed.  178 ;  Eleetric  Mfg. 
Co.  V.  Edison  El.  L.  Co.,  C.  C.  A.. 
61  Fed.  834;  Overman  Wheel  Co.  v. 
Curtis,  53  Fed.  247;  N.  T.  Filter 
Mfg.  Co.  V.  Jackson,  112  Fed.  678. 
Infra,  §  377. 

27Wayman  v.  Louis  Lipp  Co.,  222 
Fed.  679. 

28  Johns-Pratt  Co.  v.  Economy 
Fuse  &  Mfg.  Co.,  217  Fed.  639,  641, 
per  Dickenson,  J. 

29  Mast,  Foos  &  Co.  v.  Stover  Mfg. 
Co.,  177  U.  S.  485,  488,  489,  44  L. 
ed.  856,  858.  See  Campbell  Print- 
ing-Press  &  Mfg.  Co.  v.  Duplex 
Printing-Press  Co.,  C.  C.  A.,  101 
Fed.  282,  41  C.  C.  A.,  351;  Interur- 
ban  Ey.  &  Terminal  Co.  v.  Westing- 
house  Electric  &  Mfg.  Co.,  C.  C.  A., 
186  Fed.  166,  170,  108  C.  C.  A.  298. 

30  Scott  V.  Laas,  C.  C.  A.,  150 
Fed.  764;  White  Dental  Mfg.  Co.  v. 


.Johnson,   56   Fed.   R.   262;    Hildreti. 
V.  Mastoras,  253  Fed.  68. 

31  Smith  V.  Halkyard,  16  Fed. 
414;  Celluloid  Mfg.  Co.  v.  Chrow- 
lithian  C.  &  C.  Co.,  24  Fed.  275; 
Turner  Brass  Works  v.  Appliance 
Mfg.  Co.,  164  Fed.  195;  Weston  1 
Instrument  Co.  v.  Am.  Instrument 
Co.,  169  Fed.  659;  Perfection  Coolc. 
Co.  V.  Rose  Mfg.  Co.,  175  Fe<l.  12it- 
Thoma  v.  Perri,  C.  C.  A.,  228  Fed. 
904.  Contra,  Wilson  v  Consohdated 
Store-Service  Co.,  C.  C.  A.,  88  Fe.!. 
286,  288.  See  Fenton  Met.  Mfg.  Co.. 
V.  Chase,  73  Fed.  831. 

32  Dickerson  v.  De  La  Vergne  He 
frigcrating  Maeh.  Co.,  35  Fed.  143, 
146;   Turner  Brass  Works  v.   A])pli 
ance  Mfg.   Co.,  164  Fed.   195;    Per- 
fection Cooler  Co.  v.  Rose  Mfg.  Co.. 
175  Fed.  120. 

33  Carter   &   Co.   v.   Wollsehlaeger. 
53  Fed.  573. 


1392 


INJUNCTIONS 


§277 


The  rule  has  been  applied  to  adjudications,  that  a  given  state 
of  facts  does  or  does  not  constitute  an  infringement,  as  well 
as  to  those  upon  the  construction  and  validity  of  a  patent.^* 

It  does  not  include  a  case  where  an  entirely  new  defense  is 
pleaded,  although  then  that  defense  alone  will  be  considered 
upon  the  decision  of  the  motion.^^ 

Where  there  has  been  no  adjudication,  a  preliminary  injunc- 
tion will  not  be  granted  if  there  is  a  fair  doubt  as  to  in- 
vention, anticipation,  construction,  or  infringement.^^  The  bur- 
den of  proving  anticipation  is  upon  the  defendant,  and  every 
reasonable  doubt  is  resolved  against  him.s'^ 


34Byerley   v.   Ellis  Co.,   190   Fed. 
772. 

35  0eneral  El.  Co.  v.  Condit  Kl 
Mfg.  Co.,  191  Fed.  511;  Gamewc:. 
Fire  Alarm  Tel.  Co.  v.  Hackeiisaci. 
Improvement  Commission,  199  F 
182;  Bragg  v.  Mayor,  etc.  of  N.  V. 
141  Fed.  118. 

36Newliall  V.  McCabe  Hanger 
Mfg.  Co.,  C.  C.  A.,  125  Fed.  919,  60 
C.  C.  A.  629;  Vacuum  Cleaner  Co. 
V.  Waldorf-Astoria  Hotel  Co.,  198 
Fed.  865.  See  Hildreth  v.  Norton,  C. 
C.  A.,  159  Fed.  428;  Motion  Picture 
Patents  Co.  v.  N.  Y.  Motion  Picture 
Co.,  174  Fed.  51 ;  Meyers  v.  Skinner, 
179  Fed.  860;  Crown  Cork  &  Seal 
Co.  V.  Brooklyn  Bottle  Stopper  Co., 
190  Fed.  323;  Lovell-McConnell  Mf  g. 
Co.  V.  Automobile  S.  Mfg.  Co.,  193 
Fed.  658;  Gamewell  Fire  Alarm  Tel. 
Co.  V.  Star  El.  Co.,  199  Fed.  185; 
Long  Arm  System  Co.  v.  New  York 
Shipbuilding  Co.,  207  Fed.  955; 
Denison  v.  Gifford,  C.  C.  A.,  209 
Fed.  231;  Layne  v.  Getty,  C.  C.  A., 
222  Fed.  917;  Hurd  v.  James  Goold 
Co.,  C.  C.  A.,  203  Fed.  998;  Cres- 
cent Specialty  Co.  v.  National  Fire- 
works D.  Co.,  219  Fed.  130;  M 'Mas- 
ter V.  Daugherty  Mfg.  Co.,  219  Fed. 
219;  Ryder  v.  Beaver  Silo  &  Box 
Mfg.  Co.,  219  Fed.  242;  Individual 
Drinking  Cup  Co.  v.  Public  Service 


Cup  Co.,  234  Fed.  653;  Safety  Car 
Heating  &  Lighting  Co.  v.  Gould 
Coupler  Co.,  245  Fed.  755. 

37  Wayman  v.  Louis  Lipp  Co.,  222 
Fed.  679;  Eddy  v.  Kramer,  247 
Fed.  962,  965,  967:  "In  order  to 
establish  their  validity,  the  defend- 
ants introduced  in  evidence  several 
calendars  and  patents.  The  first 
was  the  'Tear  Kleen'  calendar  of 
the  Herold  Company  of  Milwaukee 
for  the  year  1915,  defendants'  Ex- 
hibit B.  disclosing  features  or  struc- 
tures similar  to  those  disclosed  in 
the  claims  in  question  in  the  plain- 
tiffs' patents.  They  introduced  a 
circular  describing  the  same  and 
soliciting  orders  for  1915,  defend- 
ants' Exhibit  C,  and  a  blotter  or 
pad,  on  the  back  of  which  is  a  pic 
ture  of  the  Herold  calendar  and 
the  date  'March,  1914.'  This  calen- 
dar, they  alleged  anticipated  the 
Eddy  patents.  It  was  pretty  clearly 
established,  that  the  inventions,  if 
such  they  be,  of  the  first  patent.  No. 
1,153,543,  was  completed  February 
6,  1913,  and  of  the  second.  No. 
1,153,545,  March  20,  1913,  and  that 
ppplication  for  said  patents  were 
filed,  respectively,  on  March  17, 
1913,  and  October  17,  1913.  The 
earliest  date  of  the  Herold  calen- 
dar   established   with   any    certainty 


^2u\ 


TO    RESTRAIN    IN  FK1XGP:-MENT    OF    PATENTS 


1393 


The  existence  and  use  of  an   unpatented  auiieipaling  device 
prior  to  the  invention  covered  by  tlie  patent,  may  be  established 


is  contained  on  the  blotter,  March. 
1914.      Augustus    J.    Keil    testified 
that  he  saw  a  Herold  'Tear  Kloen' 
calendar     in     the     building     of    the 
Franklin  Trust  Company  in  the  fall 
of   1912,  and  that  he  opened  corre- 
spondence with  said  company  early 
in   1913,  and  received  a  number  of 
calendars  from  it,  among  which  wa-- 
one  similar,  so  far  as  he  could  then 
judge,  in  all  respects  to  the  Herold 
calendar.    This  calendar  he  showed, 
he  says,  to  Frank  Hobson,  one  of  the 
defendants.     In  this  Hobson  corrob- 
orates  him.     In   this  way,   the    de- 
fendants seek  by  the  Herold  calen- 
dar to  anticipate  and  antedate  the 
alleged    invention,    constituting    the 
patents  in  question.     The  acceptance 
of  this  testimony,  as  a  fact,  is  met 
with   several   difficulties.     The  testi- 
mony was  not  clear  and  positive,  but 
indefinite  and  in  some  respects  con- 
tradictory.   It  was  based  solely  upon 
memory,  both  as  to  the  date  and  as 
to  the  resemblance  of  the  calendar, 
said  to  have  been  seen  by  them,  to 
defendants'   Exhibit   B,    a   calendar 
for   the   year   191.'j.      The   witnesses, 
even   if   trying   their   best   to   recall 
exactly  what  they  declare  they  saw, 
may  be  mistaken  as  to  the  very  fea- 
tures   constituting    the    novel    ideas 
in   the  Eddy  patents,   for  there  ap- 
pears to   have   been  no   special   rea- 
son to  call  unusual  attention  to  the 
calendar.      After   a   period   of   more 
than   three   years,   it   can  hardly  be 
expected    that    they    would    be    able 
to  recall   with   exactness   the   princi- 
pal  features   and    structures   of   the 
calendar   which    they   saw.     Neither 
of  the  witneses  were  experts  in  me- 
chanics or  patents,  and  had  no  par- 
ticular reason  to  rivet  attention  upon 


that    particular    calendar.      Memory 
after  such  a  long  time,  with  the  best 
of  men,   is   fallible,  and  plays   such 
tricks  upon  us  that  it   is  unsafe   to 
rely    entirely    ujion    it    under    such 
( iiciimstances.       This     is     especially 
tuie  when  possible  interest,  bias,  or 
perjury   is  taken  into  account.     No 
attemjit   wliatever  was  made  to  cor- 
roborate tlie  testimony  of  tliese  wit- 
nesses.    The  defendants  ditl  not  call 
any    officer    of    the    Franklin    Trust 
Company  to  establish  the  fact  that  i' 
received  any  such  calendar  from  the 
Herold  Company   in   1912.     No  wit- 
nesses   from    the    Herold    Company 
or  deposition  of  any  kind  from  any 
one    connected    with    such    company, 
or    correspondence,    was    offered    to 
show  when  the  calendar  like  defend- 
ants' Exhibit  B  was  fir.st  made  by 
that    company,    and   no    explanation 
v,  as    given    as    to    why    no    attempt 
was  made  to  corroborate  these  wit- 
nesses   upon    this    important    testi- 
mony.    I  am  therefore  not  satisfied 
to   accept   the   uncorroborated   testi- 
mony of  the  said  witnesses  as  to  the 
date  when  they  saw  the  Herold  cal- 
endar,  or   as  to  its  resemblance   to 
the  defendants '  Exhibit  B.    The  pos- 
sibility, or  even  probability,  of  mis- 
take is  too  great.     Defendants'  Ex- 
hibits B,  C,  and  D  may  may  there- 
fore be  eliminated  from  further  con 
sideration.       Anticipation     must     be 
made  out  clearly  and  satisfactorily. 
The  law  requires  not  conjecture,  but 
certainty.   The  burden  of  proof  rests 
u]>on  the  defendants,  and  every  rea- 
sonable   doubt    sliould    be    resolved 
against   them.     Coffin   v.   Ogden,   85 
U.  S.  (18  Wall.)   120,  124,  21  L.  ed. 
821;   Clough  v.  Mfg.  Co.,  106  U.  S. 
178,  1  Sup.  Ct.  198,  27  L.  ed.  138." 


1394 


INJUNCTIONS 


[§277 


by  oral  testimony,  when  sutficient  to  prove  the  facts  beyond  a 
reasonable  doubt.^^  The  burden  of  proof  of  anticipation  is 
upon  the  defendant  and  every  reasonable  doubt  is  resolved 
against  him.^^  Where  the  defense  depends  on  the  construction 
of  former  patents  or  of  written  instruments  affecting  the  title 
the  question  may  be  determined  upon  a  motion  for  a  preliminary 
injunction.*"  It  has  been  said  that  the  defendant  cannot  raise 
technical  objections  to  the  title  of  an  assignee  of  a  patent  where 
the  validity  of  the  assignment  is  not  (piestioned  by  the  assignor.*^ 
The  failure  of  complainant  to  call  an  expert  witness  is  no  reason 
for  denying  him  an  injunction.*^  There  is  a  strong  presumption 
of  the  utility  of  an  invention  which  the  defendant  is  using.*^ 
Where  there  is  no  prior  patent  or  publication  submitted,  nor 
any  rooai  for  doubt  as  to  the  infringement,  it  has  been  held 
that  the  presumption  arising  from  the  grant  of  the  patent  is 
sufficient  to  warrant  the  issue  of  an  injunction.**  This  has  been 
described  as  "the  Second  Circuit  Rule,"  but  a  recent  case  states 
that  it  rests  upon  "a  slender  foundation."  *5  It  was  there  said, 
that  tlie  phrase  "fair  doubt"  refers  to  something  more  than  the 
effect  produced  on  tlie  judicial  mind  by  the  direct  evidence  sub- 
mitted on  the  motion,  but  includes  "a  belief  that  other  reach- 


38  De  Laval  Separator  Co.  v.  Town 
Tairy  Separator  Co.,  C.  C.  A.,  19J 
Fed.  423. 

39  Crone  v.  John  J.  Gibson  Co., 
C    C.  A.,  247  Fed.  503. 

40  Individual  Drinking  Cup  v. 
Osmun-Cook  Co.,  220  Fed.  335. 

41  Imperial  Mach.  Co.  v.  N.  E. 
Streeter  &   Co.,   214  Fed.  985. 

42  T'liioii  Sulphur  Co.  v.  Frcoport 
Texas  Co.,   251   Fed.  634. 

43  Davey  Free  Expert  Co.  v.  Van 
Billiard,  248  Fed.  718. 

44  Pelzer  v.  City  of  Binghamton, 
C.  C.  A.,  95  Fed.  823,  37  C.  C.  A., 
288,  which  has  been  said  to  be  the 
only  case  in  which  a  motion  for  a 
preliminary  injunction,  lost  in  the 
court  below,  prevailed  in  the  Circuit 
Court  of  Appeals;  Seidenberg  v. 
Davidson,    112    Fed.    431,    432,    La- 


(-onibe,    J 


A^acuum    Cleaner   Co.    v. 
Waldorf-Astoria  Hotel  Co.,  198  Fed. 

865,  866.  See,  also.  Fuller  v.  Gil- 
more,  121  Fed.  129. 

45  Vacuum    Cleaner    Co.    v.    Wal- 
dorf-Astoria Hotel  Co.,  198  Fed.  865, 

866,  per  Hough,  J.:  "The  function 
of  the  apellate  court  has  more  fre- 
f] neatly  been  directed  to  discovering 
donlit,  and  thus  delaying  decision, 
than  to  adjudicating  matters  far 
more  fully  and  elaborately  present- 
ed to  the  lower  court  than  it  was 
tlie  practice  in  equity  to  do  when  so 
',  ital  a  litigation  as  that  over  the 
Morse  electric  telegraph  reached  the 
Supreme  Court.  The  record  of  that 
case,  compared  with  modern  records, 
is  an  instructive  example  of  deteri- 
oration in  procedure." 


§277] 


TO    RESTRAIN    IN  FRIXdEM  EXT    OF    PATENTS 


130: 


able  testimony  exists  wliich,  by  reasonable  elt'ort,  the  party  may 
ackhiee. "  *^ 

If,  upon  a  motion  for  a  preliminary  injunction,  the  parties  are 
willing  to  rest  their  ease  for  a  final  hearing  upon  the  papers 
then  presented,  without  oral  testimony,  the  court  is  more  in- 
clinetl  to  decide  the  (piestion  uiwn  the  merits.*''' 

Because  of  the  weight  which  the  decision  has  as  a  precedent, 
proof  that  the  defendani  will  not  be  seriously  injured  by  the 
injunction,  does  not  justify  its  issue.*®  although  when  there  is 
evidence  lliat  the  complainant  cannot  suffer  serious  loss  it  may 
afford  a  reason  for  denying  the  wi-it.*^  Laches  by  the  plaint itf 
hefoi-e  the  suit,^''  and  after  the  suit  has  begun.^^  is  a  reason  for 
denying  the  motion.  A  delay  pending  litigation  with  other  in- 
fringers is  not  laches.^2 

If  serious  public  inconvenience  would  result  fi-om  a  prelimi- 
)iary  injunction,  the  application  may  be  denied.^^ 

"Where  some  of  the  claims  in  the  patent  wei-o  sustained  and 


46  Ibid. 

47  Crown  Cork  &  Steel  Co.  v. 
Bklyu  Bottle  Stopper  Co.,  190  Fed. 
323. 

48  Victor  Talking  Mach.  Co.  v. 
Heed  &  Catlin  Co.,  180  Fed.  778. 

49  Meyers  v.  SkinneF,  179  Fed. 
860;  Fire.stone  Tire  &  Rubber  Co. 
V.  Dientenfass,  215  Fed.  747;  Boyce 
V.  Stewart-Warner  Speedometer  Cor- 
poration, C.   C.   C,  220  Fed.   118. 

60  United  Nickel  Co.  v.  New  H. 
S.  M.  Co.,  17  Fed.  528;  Waite  v. 
Chichester  Chair  Co.,  45  Fed.  258; 
Keyes  v.  Pueblo  Sm.  &  Ref.  Co.,  31 
Fed.  560;  Byerley  v.  Standard  As- 
phalt &  Rubber  Co.,  189  Fed.  759; 
Valvona-Marchiony  Co.  v.  Silver- 
stein,  207  Fed.  374;  Hills  v.  Hamil- 
ton Watch  Co.,  248  Fed.  499,  502. 
See  §§  180,  182,  siipi-a.  In  one  ease 
a  delay  of  two  months  was  hell 
such  laches  as  to  defeat  tlie  a]>]ili 
cation.  New  Mfg.  Co.  v.  Superior 
Drill  Co.  (C.  C.  Ohio),  56  Fed.  152 
But  see  Brush  El.  Co.  v.  El.  Imp. 
Co.,    45     Fed.     241;     Nat.     Heeling 


Mach.  Co.  V.  Abbott,  77  Fed.  462; 
Collingnon  v.  Hayes,  8  Fed.  912; 
N.  Y.  G.  S.  Co.  V.  Buffalo  G.  S.  Co.. 
18  Fed.  638;  Todd  Protectograph 
Co.  V.  New  Era  Mfg.  Co.,  236  Fpd 
768. 

51  Vacuum  Cleaner  Co.  v.  Wal- 
dorf-Astoria Hotel  Co.,  198  Fed.  865, 
867,  where,  with  proper  diligence, 
the  case  would  have  been  ready  for 
final  submission.  But  see  Cheatham 
J']l.  Switching  Device  Co.  v.  Transit 
Development  Co.,  226  Fed.  495; 
American  Grain  Separator  Co.  v. 
Twin  City  Separator  Co.,  C.  C.  A., 
202  Fed.  202. 

^CTimoIat  v.  Franklin  Boiler 
Works,  C.  C.  A.,  122  Fed.  69;  (a 
delay  of  three  years).  See  §  182 
snpra. 

53  S.  W.  Brush  El.  &  P.  Co.  v. 
La.  El.  L.  Co..  45  Fed.  893;  Bliss  v. 
Brooklyn,  4  Fisher 's  Pat.  Cas.  596; 
Am.  Ordinance  Co.  v.  Driggs-See- 
bury  Co.,  87  Fed.  947:  Hoe  v.  Bos- 
ton Adv.  Corp.,  14  FV-d.  014;- Robin- 
son on  Partcnts,  *?  1200.     Tiseibauher 


1396 


INJUNCTIONS 


[§277 


found  to  have  been  infringed  and  others  held  to  be  invalid,  the 
complainant  has  been  required  to  disclaim  the  latter  before  the 
injunction  issues.^*  But  the  better  practice  is  not  to  require  a 
disclaimer  until  the  entry  of  the  final  decree  after  any  account- 
ing that  may  be  ordered  has  been  terminated,  in  order  that  the 
complainant  may  have  the  right  to  have  so  much  of  the  adjudi- 
cation as  is  against  him  reviewed  upon  appeal." 

The  combination  of  the  complainant  with  other  patentees,  so 
as  to  create  a  monopoly ,^^  the  absolute  refusal  of  the  owner 
of  the  patent  to  use  the  same,  which  had  deprived  the  public 
of  the  benefit  of  the  invention,^^  and  the  fact  that  the  principal 
use  of  the  invention  was  in  connection  with  gambling,  when  it 
might  be  used  for  other  purposes ;  ^8  were  held  to  be  no  reasons 
for  denying  an  injunction.^^ 

Where  the  defendant  is  pecuniarily  responsible,^'  especially 
where  the  complainants  have  established  a  regular  license  fee.^^ 


Chemische  Werke  Gesellschaft  Mit 
Beschrankter  Haftung  v.  Wolfe 
Safety  Lamp  Co.  of  America,  Inc., 
214  Fed.  414.  Within  a  month  the 
suspension  was  set  aside,  S.  C,  215 
Fed.  126.  But  see  Pelzer  v. 
Bingliamton,  C.  C.  A.,  95  Fed.  823; 
N.  Y.  Filter  Mfg.  Co.  v.  Niagara 
Falls  W.  Co.,  C.  C.  A.,  77  Fed. 
900;  Westiughouse  A.  B.  Co,  v. 
Great    N.    Ry.    Co.,    86    Fed.    132. 

54  F.  D.  Cummer  &  Son  Co.  v.  At- 
las Dryer  Co.,  C.  C.  A.,  193  Fed. 
993.     See  infra,  §  400. 

66  Page  Maeh.  Co.  v.  Dow,  Jones 
&  Co.,  C.  C.  A.,  168  Fed.  703. 

56  Lanyon  Zinc  Co.  v.  Brown,  C. 
C.  A.,  115  Fed.  150;  Edison  El.  L. 
Co.  V.  Sawyer-Man  El.  Co.,  C.  C.  A., 
53  Fed.  592. 

57  General    El.    Co.    v.    Wise,    119 
Fed.    922;    Continental    Paper    B:r 
Co.  V.  Eastern  Paper  Bag  Co.,  210 
U.  S.  405,  52  L.  6d.  1122.    See  infra, 
§400. 

58  Fuller  V.  Berger,  C.  C.  A.,  65 
L.R.A.  381,  120  Fed.  274. 

59  But  see  iiifra,  §  284. 


60  N.  Y.  Grape  Sugar  Co.  v. 
American  Grape  Sugar  Co.,  10 
Fed.  835;  Westiughouse  A.  B.  Co. 
V.  Burton  S.  C.  Co.,  70  Fed.  619; 
Nilsson  V.  Jefferson,  78  Fed.  366; 
Huntington  D.  P.  Co.  v.  Alpha  P.  C. 
Co.,  91  Fed.  534;  Karfiol  v.  Both- 
ner,  151  Fed.  777;  Byerley  v.  Stand- 
ard Asphalt  &  Rubber  Co.,  189  Fed. 
759;  Gamewell  Fire  Alarm  Tel.  Co. 
V.  Star  El.  Co.,  199  Fed.  185.  Con- 
tra, General  El.  Co.  v.  Wise,  119 
Fed.  922.  In  some  cases  the  defend- 
ant is  then  required  to  keep  an  ac- 
count.    See  infra,  §  297. 

61  Overweight  C.  El.  Co.  v.  Cahill 
&  H.  El.  Co.,  86  Fed.  338;  Over- 
weight C.  El.  Co.  V.  Improved  O.  o  ' 
R.  M.  H.  Ass'n,  C.  C.  A.,  94  Fed. 
155;  Nat.  Heeling  Mach.  Co.  v.  Ab- 
bott, 77  Fed.  462.  See  Nat.  Cash 
Peg.  Co.  V.  Navy  C.  R.  Co.,  99  Fed. 
565;  Eastern  B.  P.  Co.  v.  Nixon, 
35  Fed.  752;  McMillan  v.  Conrad, 
16  Fed.  128;  Eagle  Mfg.  Go.  v. 
Chamberlain  Plow  Co.,  36  Fed.  905; 
Hoe  V.  Knap,  27  Fed.  204 ;  Geo. 
.\.      Macbeth      Co.      v.      Lippineott 


§277] 


TO    RESTRAIX    INFRINGEMENT   OF    PATENTS 


l.iO- 


or  where  the  defendant  offers  a  bond  or  undertaking  with  a  suf- 
ficient suretj^  that  he  will  pay  whatever  may  be  awarded  against 
him  for  damages  or  profits,  the  injunction  will  usually  be  denied, 
unless  there  has  been  a  previous  adjudication  sustaining  the 
plaintiff's  patent.^^  Sometimes  even  where  there  had  been  such  an 
adjudication,63  especially  when  an  appeal  from  such  an  adjudi- 
cation is  pending.6*  An  injunction  may  be  dissolved  where  the 
plaintiff  has  sent  a  false  or  misleading  description  of  the  same 
to  the  trade. ^5  The  complainant  may  be  restrained  from  sending 
out  circulars  which  misrepresent,  directly  or  by  innuendo  the 
scope  of  the  decree  and  contain  veiled  threats  of  suits  for  in- 
fringement.6^  But  notices  of  the  claim  of  infringement  and 
threats  of  suit  when  made  in  good  faith  are  not  unfair  competi- 
tion and  should  not  be  enjoined.^''' 

An  ex  parte  application  for  an  injunction  to  i-estrain  the  in- 
fringement of  a  patent  should,  it  seems,  be  supported  by  an 
affidavit,  or  an  allegation  in  a  bill  verified  by  affidavit  of  the 
plaintiff,  stating  that  he  believes  that  the  person  to  whom  the 
patent  was  issued  was  the  original  inventor  thereof,  or  that  the 
invention  was  new,  or  had  not  been  introduced  into  public  use 
in  the  United  States  for  more  than  two  years  prior  to  the  appli- 
cation upon  which  the  patent  was  issued. ^^  An  injunction 
against  the   manufacture   or  sale   of  articles   in   violation   of  a 


Glass  Co.,  54  Fed.  1H7;  Wash- 
burn &  M.  Mfg.  Co.  V.  H.  B.  SeotT 
&  Co.,  22  Fed.  710;  Edison  El.  Lt 
Co.  V.  Columbia  Inc.  L.  Co.,  ."16 
Fed.  496;  N.  Y.  Belting  &  P.  Ci.. 
V.  Magowan,  23  Fed.  596;  Gnen 
wood  V.  Bracher,  1  Fed.  856.  Co.t- 
tra,  Warren  Bros.  Co.  v.  City  of 
Montgomery,  172  Fed.  414;  Kryp- 
tok  Co.  V.  Haussman  &  Co..  2 In 
Fed.  196. 

62McWilliams  Mfg.  Co.  v.  Blun- 
deU,  11  Fed.  419;  Campbell  Pi. 
Press  Co.  v.  Prieth,  77  Fed.  97tj: 
Carter  &  Co.  v.  WoUschlaeger,  5:; 
Fed.  573.     See  ijifra,  §  297. 

63  Westinghouse  A.  B.  Co.  v.  Bur 
ton   S.   Car  Co.,  C.   C.    A.,   77   Fed. 
Fed.  Pra.-.  Vol.  IT— IS 


301;  Norton  v.  Eagle  Auto  Can  ^   • 
61  Fed.  293. 

64  Hills  V.  Hamilton  Wati'li  t'o.. 
248  Fed.   499,  505. 

66  Meyers  v.  Skinner.  186  Ft-. I. 
347.     See  infra,  §§  284,  296. 

66  Rollman  Mfg.  Co.  v.  Universal 
Hardware  Works,  C.  C.  A.,  238  Fe.l. 
568.     See  infra,  §  284a. 

67  Clip  Bar  Mfg.  Co.  v.  Steel  Pro 
tected  Concrete  Co.,  209  Fed.  874: 
Kryptok  Co.  v.  Haussmann  &  Co.. 
216  Fed.  196. 

68  Hill  V.  Thompson,  3  Meri\. 
622;  Sturz  v.  De  La  Rue,  5  Rus.«. 
322,  329;  Sullivan  v.  Redfield.  ] 
Paine,  441;  U.  S.  P.  «..  S:;  4^'R 
4887:   supni.   i  147. 


1398 


INJUNCTIONS 


[§277 


patent  right  is  violated  by  their  sale  or  niaiiufacture  within  the 
United  States,  beyond  the  jurisdiction  of  the  court.^^ 

After  an  injunction  against  the  infringement  of  a  patent,  the 
defendant  or  his  trustee  in  bankruptcy  may  be  enjoined  from 
selling  the  infringing  apparatus  pending  his  appeal  from  the 
decree. '•* 

It  has  been  held,  that,  after  an  interlocutory  decree  grant- 
ing an  injunction,  the  complainants  cannot  sue  in  another  dis- 
trict for  the  sole  purpose  of  obtaining  an  adjudication  that  other 
parties  therein  located  have  been  the  real  parties  in  interest  in 
the  prior  suit  and  are  bouud  by  the  injunction."''^ 

Where  the  question  of  infringement  is  doubted  "the  fact  that 
the  patent  is  a  mere  paper  patent  may  turn  the  scale  against 
infringement  as  it  may  resolve  a  light  doubt  of  validity. " '^ 
Evidence  that  defendant  had  an  infringing  device  in  his  pos- 
session, without  proof  that  it  made,  used,  or  sold  the  same,  does 
not  make  out  a  case  of  infringement. '''^  The  publication  of  a  cut 
of  an  infringing  article  with  a  general  description  from  which 
a  skilled  mechanic  may  make  the  same  is  not  a  contributory  in- 
fringement when  no  such  machine  has  been  made.''^*  Because  a 
patent  has  been  infringed  by  another  justifies  no  inference  that 
the  defendant  was  guilty  of  infringement.'''^ 

After  a  defendant  has  once  infringed  a  patent  owned  by  the 
plaintiff',  it  seems  that  the  court  will  usually  enjoin  him  from 
doing  so  in  the  future  ''^  even  though  he  has  gone  out  of  the 
business  and  sold  his  property  "^"^  and  even  though  he  swears  that 
he  has  no  intention  of  doing  so  again,  unless  he  further  proves 
that  he  has  paid  all  damages  occasioned  by  his  infringement, 


69  Macaulay  v.  White  S.  M.  Co.,  9 
Fed.  698. 

70  United  Wireless  Tel.  Co.  v.  Nat. 
El.  Signaling  Co.,  C.  C.  A.,  198  Fed. 
385. 

71Kelioe  V.  Bradford  &  Lasher, 
175  Fed.  800. 

72  Heels  v.  Hamilton  Watcli  Co., 
248  Fed.  499,  505. 

73  Sheffield  Car  Co.  v.  Buda  Fouu- 
drj  &  Mfg.  Co.,  177  Fed.  713. 

74  Popular  Mechanics  Co.  v. 
Brown,  C.  C.  A.,  245  Fed.  859. 


75  Kryptok  Co.  v.  Harris,  216  Fed. 
642 ;  Gilliland  v.  Adamson,  C.  C.  A., 
227  Fed.  93. 

76  Goshen  Mfg.  Co.  v.  Hubert  A. 
Meyers  Mfg.  Co.,  242  U.  S.  202; 
Van  Kannel  Eevolving  Door  Co.  v. 
ITlirich,  247  Fed.  344. 

77  Goshen  Mfg.  Co.  v.  Hubert  A. 
Myers  Mfg.  Co.,  242  TJ.  S.  202;  Man- 
ton-Gaulin  Mfg.  Co.  v.  American 
Bottle  Cap  Co.,  250  Fed.  865. 


S278I  TO    KliSTKAIN    1NKKING1:.M1:NT    OF    COPYKKiHTS  13U9 

and  has  desisted  from  it; ''8  but  not  where  it  clearly  appears 
that  the  infringement  ceased  before  the  suit  was  brought  and 
was  made  without  knowledge  of  the  complainant's  rights,"'® 
especially  when  the  complainant  knew  of  the  cessation  before 
the  suit  was  brought.^" 

It  has  been  held  that  after  the  expiration  of  a  patent  an 
injunction  may  issue  to  prevent  the  use  of  a  machine  made  while 
the  patent  was  in  force,"  and  it  has  been  said  that  an  injunc- 
tion pi'eviouslv  issued  will,  until  dissolved  by  order,  remani  ui 
force  so  far  as  still  to  forbid  such  a  use.s^  But  a  bill  prayuig 
for  such  an  injunction  must  allege  either  that  the  defendani: 
is  using  machines  manufactured  during  the  term  of  tlic  patent 
and  in° violation  of  it,  or  that  the  plaintiff  has  cause  to  fear 

such  use.*' 

§278.  Injunctions  to  restrain  the  infringements  of  copy- 
rights. The  Act  of  .March  4.  IDU!),  provides:  "That  if. any 
person  shall  infringe  the  copyright  in  any  work  protected  under 
the  copyright  laws  of  the  United  States  such  person  shall  ba 
liable-  (a)  To  an  injunction  restraining  such  infringement."  ^ 
-That  anv  such  court  or  judge  thereof  shall  have  power,  upon 
bill  in  equity-  tile.l  bv  any  party  aggrieved,  to  grant  injunctions 
to  prevent  and  restrain  the  violation  of  any  right  secured  by 
said  laws,  according  to  the  course  and  principles  of  courts  of 
equitv,  on  such  terms  as  said  court  or  judge  may  deem  reason- 
able '  Anv  injunction  that  may  be  granted  restraining  and  en- 
joining the  doing  of  anything  forbidden  by  this  Act  may  be 
served  on  the  parties  against  whom  such  injunction  may  l)e 
granted  anywhere  in  the  United  States,  and  shall  be  operative 

78  .Tonkins  v.  Greenuakl,  1  Bond.  81  Am.  D.  E.  B.  Co.  v.  Rutlaa.l 
lofi.  s  c,  2  Fisher,  37  Slekels  v.  M.  Co.,  2  Fed.  3.55.  But  see  Am. 
Mitc-hell,  3  Blatchf.  548;  Poppen-  Cable,  Ry.  Co.  v.  Chicago  City  Ry. 
husen,  V.  N.  Y.  G.  P.  C.  Co.,  4  Co.,  41  Fed.  ^f  ^ /^f "f  °";;;- 
Blatc-hf.  184;  Celluloid  Mfg.  Co.  v.  Carpenter,  C.  C.  A.,  43  led.  894. 
Arlington  Mfg.  Co.,  34  Fed.  324;  Am.  Sulphite  Pulp.  Co.  v.  Hmekley 
Morton  Tr  Co.  v.  Standard  Steel  Fiber  Co.,  217  Fed.  57.  See  uifra. 
Car  Co.,  C.  C.  A.,  177  Fed.  931.  §§  287,   296.                          ^  ,,      i  R 

79  General  El.  Co.  v.  Pittsburgh-  82  Am.  D.  R.  B.  Co.  v.  Rutland  B. 
Buffalo    Co.,    144    Fed.    439.       See  Co.,  2  Fed.  35o. 

Home   Ins.    Co.    v.   Nobles,   63   Fed.  83  Am.   D.   R.    B.    Co.   v.   Rutland 

,.^o  :M.  Co.,  2   Fed.   355. 

'  SOKennieott    Water    Softener    Co.  §278.     135   St.  at  I-   ^^ 7-^-   « -■'• 

V   B-iin   C   C    A.,  185  Fed.  520.  Pieree  Fed.  Code  (Supp.),  §  1^87. 


1400 


INJUNCTIONS 


[§278 


throughout  the  United  States  and  be  enforcable  bj'  proceedings 
in  contempt  or  otherwise  by  any  other  court  or  judge  possessing 
jurisdiction  of  the  defendants. "  ^ 

This  statute  is,  however,  merely  declaratory  of  the  previous 
rule  in  equity  which,  it  is  said  by  Lord  Eldon,  was  "founded 
upon  this;  that  the  law  does  not  give  a  complete  remedy  to 
those  whose  literary  property  is  invaded ;  for  if  publication  after 
publication  is  to  be  made  a  distinct  cause  of  action,  the  remedy 
would  soon  become  worse  than  the  disease.  This  court,  there- 
fore, interposes  by  injunction ;  but  not  in  cases  wliere  an  action 
cannot  be  maintained."  ^  The  rules  regulating  the  issue  of  in- 
junctions to  prevent  the  infringement  of  copyrights  are  in  gen- 
eral similar  to  those  regulating  the  issue  of  injunctions  restrain- 
ing the  infringement  of  patents;  but  decisions  which  relate  to 
patent  eases  are  not  absolutely  controlling  in  cases  arising  under 
the  copyright  law.* 

The  plaintiff  must  show  a  clear  title  to  his  copyright,  and  an 
infringement  or  threatened  infringement  by  the  defendant.^  It 
has  been  held  that  an  injunction  is  void  when  obtained  and 
served  before  tM'o  copies  of  the  work,  of  which  a  copyright  is 
sought,  have  been  deposited  in  the  copyright  office  or  mailed 
addressed  to  the  register.^  A  preliminary  injunction  will  not 
be  granted  where  the  validity  of  the  copyright  and  the  infringe- 
ment are  denied  and  not  clearly  established.'' 

The  injunction  will  be  denied  if  the  defendant  shows  that  the 
plaintiff  has  consented  to  his  infringement,  or  has  been  guilty 
of  unreasonable  delay  after  he  learned  that  it  had  occurred  or 
was  threatened.^     How  long  a  time  must  have  elapsed  to  bar 


2  Ibid.,  §  36,  Pierce  Fed.  Code 
(Supp.),    §  1589. 

3  Lawrence  v.  Smith,  Jacob,  471 , 
472. 

4  Bobbs-Merrill  Co.  v.  Straus,  210 
U.  S.  .339,  345,  52  L.  ed.  1086,  1091; 
Park  &  Sons,  v.  Hartman,  12  L.E.A. 
(N.S.)  135,  153  Fed.  24.  Contra 
Seribner  v.   Straus,  130  Fed.   389. 

5  Chase  v.  Sanborn,  6  Off.  Gaz. 
932;  Parkinson  v.  Lflselle,  3  Saw. 
330 ;  Lawrence,  v.  Dana,  4  Cliff.  1 ; 
Yuengling    v.    Schile,    12    Fed.    97; 


Drone     on     Copyright,     ch.     xi.     pp 
496-543. 

6  N.  Y.  Times  Co.  v.  Star  Co.,  19.5 
Fed.   110. 

7  Nixon  V.  Doran,  168  Fed.  575. 

8  Eundell  v.  Murray,  Jacob,  311; 
Saunders  v.  Smith,  3  Myl.  &  Cr. 
711;  Chappell  v.  Sheard,  1  Jur. 
(N.  S.)  996;  Tinsley  v.  Lacy,  1 
Hem.  &  M.  747;  Keene  v.  Clarke, 
5  Robertson  (N.  Y.),  38,  66,  67-, 
Miller  v.  M'Elroy,  1  Am.  Law.  Eeg. 
198;    Haas   v.   Leo   Feist,  Inc.,   234 


Jj  278 


I'O    KKSTKAIN     1.\KK].\(;1:.M1:NT    ok    COl'VKKillTS 


1401 


the  plaintiff's  right  to  an  injunction  has  not  been  definitely 
settled.  It  has  been  held  in  England,  however,  that  an  injunc- 
tion may  be  obtained  after  the  copyright  has  been  infringed  to 
the  plaintiff's  knowledge  during  four  years.^  Moreover,  delay 
will  not  prejudice  him,  if  caused  solely  by  his  waiting  until  the 
result  of  litigation,  whether  prosecuted  by  himself  or  others,  to 
settle  a  doubtful  question  of  law  involving  the  validitv  of  his 
title.io 

As  has  been  said,  an  injunction  will  not  be  granted  unless  tlie 
plaintiff'  shows  a  plain  title  to  the  copyright  which  he  claims: 
but  the  copyright  is  prima  facie  evidence  that  he  is  the  author, 
and  the  burden  of  proof  is  upon  the  defendant  to  show  the  con- 
trary,^^  or  that,  for  some  othei-  reason,  there  is  a  defect  in 
the  title  claimed. ^^  When  copyright  was  obtained  under  the 
Act  of  January  3,  1831,"  the  certified  copy  of  its  title  as  de- 
posited and  recorded,  signed  and  sealed  by  the  clerk  of  the  court, 
is  prima  facie  evidence  of  the  deposit  of  the  title  at  the  date 
therein  named.^*  When  copyright  was  obtained,  undei-  the  later 
statutes,  in  force  prior  to  1909,  the  certificate  of  the  librarian 
of  Congress  duly  signed  is  sufficient  evidence  of  the  deposit  and 
date  of  deposit  of  the  title  and  of  the  copies  of  the  book  in  his 
office,^^  although  not  under  seal.^^  An  unsigned  memorandum 
of  the  deposit  of  the  copies  of  the  book,  written  upon  a  certifi- 
cate to  a  copy  of  the  record  of  the  deposit  is  not  competenl 
evidence.^' 

The  Act  of  ]\Iarch  4,  1907,  expressly  provides  that  the  certi- 
ficate under  seal  of  the  register  of  copyright  shall  be  "admitted 
in  any  court  as  primci  facie  evidence  of  the  facts  stated  therein.'' 


Fed.  105;  Flanagan  v.  Coleman,  255 
Fed.  178. 

9  Hogg  V.  Seott,  L.  R.  18  Eq. 
444,  454;  Drone  on  Copyright,  504, 
512. 

10  Buxton  V.  James,  5  Dc  G.  & 
Sm.  80;  Eumford  Chem.  Works  v. 
Vice,  14  Blatchf.  179. 

11  Taney,  C.  J.,  in  Reed  v.  Carusi, 
Taney,  72,  74. 

12  Drone  on  Copyright,  499; 
Story 's  Eq.  Jur.,  §  936,  note  6. 

13  4  St.  at  L.  486,  §  4,  Act  of  Jan. 
3,  1831. 


14  Callahan  v.  Myers,  128  U.  S. 
617,  655,  656,  9  Sup.  Ct.  177,  187, 
:^2  L.  ed.  547. 

ISBelford  v.  Scribner,  144  U.  S. 
488,  505,  506,  12  Sup.  Ct.,  734. 
739,  36  L.  ed.  514;  Uebches  v.  Ar- 
thur H.  Christ  CI.,  209  Fed.  885. 
890. 

16Belford  v.  Scribner,  144  U.  S. 
488,  505,  506.  12  Sup.  Ct.,  7.34.  739. 
36  L.  ed.  514. 

17  Merrill  v.  Tice,  104  Fed.  557, 
ee  L.  ed.  854. 


1402  INJUNCTIONS  [§278 

namely  the  name  and  address  of  the  claimant  of  the  copyright, 
the  title  of  the  work,  the  date  an^  the  deposit  of  the  copies,  such 
marks,  as  shall  fully  identify  the  entry  and  in  the  case  of  a 
book  the  receipt  of  the  affidavit  provided  for  by  the  Act  and  the 
date  of  the  completion  of  the  printing  or  the  date  of  the  publica- 
tion as  stated  in  the  affidavit. ^^ 

Certificates  of  the  officers  with  whom  law  reports  were  required 
1o  be  deposited,  that  such  deposits  were  made  in  their  offices  on 
specified  dates  as  required  by  law,  are  competent  evidence  of 
the  date  of  publication.^^  The  date  on  the  title  page,  if  any 
evidence  of  the  date  of  publication,  is  not  conclusive.^"  The 
certificate  of  registration  is  not  evidence  that  the  work  was  not 
previously  pu))lished.2i  Testimony  that  the  witness  heard  a 
piece  of  music  from  printed  sheets  is  not  evidence  that  the  music 
had  not  previously  been  published  as  a  book.22  Testimony  by 
an  artist's  neighbors  that  they  did  not  know  that  he  ever  ex- 
hibited a  painting  of  his  own,  outside  of  his  own  parlor,  or  gave 
anyone  permission  to  copy  it  previously  to  the  application  for 
copyright,  "was  held  to  be  insufficient  to  prove  non-publication.^^ 

Evidence  by  the  complainant  that  he  ordered  the  book  printed 
l)y  a  firm  in  the  United  States  creates  a  presumption  that  it  was 
there  printed. 2* 

The  court  will  protect  an  equitable  title  against  infringement, 
unless  the  defendant  possesses  superior  equities  to  those  of  the 
complainant.^^  The  equitable  owner  cannot  obtain  an  injunc- 
tion against  the  licensee  for  value  of  the  legal  owner,  who  has 
acted  without  notice  of  the  complainant's  equitable  rights.'^^ 
The  complainant  may  obtain  an  injunction  against  future  in- 
fringements without  proving  title  to  the  copyright  when  it  was 

18  Act  of  Mar.  4,  1907,  35  St.  at  23  Booselman  v.  Richardson,  C.  C. 
L.,  eh.  320,  §  55,  p.  1075.                 '  A.,  174  Fed.  622,  624. 

19  Callahan  v.  Myers,  128  U.  S.,  24  Uebches  v.  Arthur  H.  Christ 
617,  9  Sup.  Ct.,  177,  32  L.  ed.  547.  Co.,  209  Fed.  885,  889. 

20  Lover  v.  Davidson,  1  C.  B.  N.  26  Little  v.  Gould,  2  Blatchf.  165. 
S.  182.  26  Brady   v.  Reliance  Motion   Pic- 

ZlBoosey  v.  Davidson,  13  Q.  B.  ture  Corp.,  C.  C.  A.,  229  Fed.  137. 
257.  Cf.  T.  B.  Harms  &  Francis,  Day  & 

aSDavies  v.  Bownes,  C.  C.  A.,  219       Hunter  v.  Stern,  222  Fed.  581. 
Fed.  128,  see  Hale  on  Copyright  and 
Literary  Property,   13   Corpus  .Juris 
1210. 


§  278]  TO    RESTRAIN-    INFRINGEMENT    OF    COPYRIGflTS  UO-i 

previously  infringed  by  the  defendaiH."  When  the  copyright 
was  entered  in  the  name  of  a  fictitious  company  it  was  held  that 
it  could  not  be  enforced  by  the  eourts.28 

The  complainant   is  not  obli-cd   lo  prove  damage  from  the 
breach  of  copvriglit.2»     Ordinarily,  the  injunction  forbids  the 
publication  of  onlv  so  much  of  the  defendant's  work  as  infringes 
upon  the  copyright  of  the  i>laintiif.3o     Where  the  defendant's 
publication    intenningles   matter    infringing   the    complaniant's 
copyright  with  other  matter  which  does  not,  the  entire  publica- 
tion may  be  enjoined,  with  permission  to  the  defendant  to  apply 
for  a  modification  of  the  injunction  after  he  has  eliminated  the 
objectionable  matter  :3i  but  where  the  piratical  matter  is  insig- 
nificant in  amount  and  value  when  compared  with  the  rest  of 
the  defendant's  publication,  an  injunction  should  be  refused  and 
the  plaintiff's  right  limited  to  a  trial  by  jury  of  the  damages 
actually  siistained.32     If  there  is  any  doubt  concerning  the  in- 
frino-ement,  and  its  ascertainment  will  necessitate  the  examina- 
tion^'of  a  great  deal  of  matter,  the  court,  in  this  country-,  usually 
directs  a  reference  to  a  master  to  hear  testimony  and  state  the 
facts    together   with   his   opinion   for  its  consideration,  before 
-ranting  an  injunction.33     Such  a  reference  is  usually  ordered 
before  the  final  hearing,  but  may  be  at  the  decree.^*     In  Eng- 
land,   however,    laborious    examinations    have    frequently   been 
made  by  the  judges  themselves,  unassisted,  except  by  counsel.  ^ 

27  Historical    Pub.    Co.    v.    Jones       Webb   v.   Powers,   2   W    &  M.   497; 
Pros    Pub    Co.,   C.   C.   A.,  231   Fed.       Story    v.    Derby,    4    McLean,    160. 

28  Haas    v.    Leo    Fiest    Inc.,    234       rence  v.  Dana,  4  Cliff.  1 ;  West  Pub. 
Pp^    J05  Co.   V.    La^Vye^s'    Co-operative   Pub. 

^^.Kee.  V.  Holliday,  19  Fed.  323,  ^"^  ^   ^f  •t/JJ'^ilo^'i 

^ioWebb   V.    Powers,    2   W.   &    M.  Fed.  756;  Drone  on  Copyright,  513. 

497;   Story  v    Holcombe,  4  McLean.  But  see  Smith  v.  Johnson,  4  Blatchf. 

.SOei     Farmer    v.    Elstuer,    33    Fed.  252. 

494;    Historical   Pub.    Co.    v.    Jones  .    34  Lawrence   v.   Dana    4   Chff.   1. 

Bros.  Pub.  Co.,  et  al.,  C.  C.  A..  231  Droue   on   Copyright.  ol3. 

j,^^    g39  35  Lewis    V.     FuUarton,     2     Bea%. 

Vpark   &   Pollard   Co.   v.   Keller-  6:    Murray  v.  Bogue,  1  ^rew,  353: 

,  ,,,    -.oi  y^A    401  .Tarrold    v.    Houlston,    3    Kay   &   J. 

strass.  181  X  ea.  •1.51.  -^t-  i.  1        t     t?    ■^  fTi 

32  Dun     V.     Lumbermen's     Credit  708;   Pike  v.  Nicholas,  L.  R  o  Ch. 

Ass'n,  209  U.  S.  20,  52  L.  ed.  663.       251 ;   Drone  on  Copyright,  51o. 

33Folsoni  v.  Marsh,  2  Story,  100; 


]404 


INJUNCTIONS 


[§278 


Instead  of  a  reference,  an  issue  at  law  may  be  directed.^^ 

The  plaintiff  need  not  specify  in  either  his  bill  or  his  affidavit 
the  parts  of  the  defendant's  publication  which  he  thinks  have 
been  taken  from  his  work.  A  general  allegation  of  infringement 
accompanied  by  a  verification  by  affidavit  of  the  two  works  is 
sufficient.3^  The  practice  has  been  that,  when  the  injunction 
has  been  moved  for,  the  two  works  have  been  brought  into  court, 
and  the  counsel  have  pointed  out  to  the  court  the  passages  which 
they  rely  upon  as  showing  the  piracy.^^  g^t  in  a  suit  for  an 
accounting  of  profits  by  the  publication  of  a  song,  the  allega^ 
tion  that  the  publication  was  based  upon  an  idea  or  theme  which 
was  conceived  by  the  plaintiff  for  a  popular  song  and  upon  a 
chorus,  verse,  or  lyrics,  written  by  a  plaintiff'  for  his  song  with- 
out setting  forth  in  words  or  substance  the  idea,  theme,  verse, 
or  chorus  which  the  plaintiffs  claim  have  been  conceived  and 
written;  was  held  to  be  insufficient.^^ 

When  copies  of  the  two  works  are  not  filed  in  accordance  with 
the  rules,  an  injunction  will  be  denied.*"  Clearer  proof  and  a 
stronger  case  than  would  be  sufficient  to  entitle  a  plaintiff'  to  an 
injunction  after  the  hearing  is  often  required  before  he  can  ob- 
tain an  interlocutory  injunction.*^  Where  there  is  doubt  about 
the  infringement,  an  injunction  may  be  withheld  upon  the  filing 
of  a  bond  by  the  defendant. *2  The  difficulty  of  accurately  deter- 
mining the  damages  resulting  from  an  unauthorized  publica- 
tion of  his  work  will  often  have  weight  in  leading  the  court 
to  grant  a  preliminary  injunction,  when  otherwise  it  might  re- 
fuse one.*'  But,  on  the  other  hand,  the  court  will  often  refuse 
an  injunction  before  the  hearing,  when  it  is  plain  that  the  de- 
fendant would  suffer   more  injury  from  being  obliged  to  dis- 


36Jollie  V.  Jacques,  1  Blatchf. 
618. 

37  Farmer  v;  Calvert  L.  Co.,  1 
Flip.  228,  235;  Sweet  v.  Maugham, 
11  Sim.  51;  Drone  on  Copyright, 
513. 

38  Sweet  v.  Maugham,  11  Sim.  51, 
.53. 

39  Kennedy  v.  Pease,  N.  Y.,  Sup. 
Ct.,  Sp.  Tm.,  N.  Y.  L.  J.,  May  28, 
1919,  per  Lehman,  J. 

40Tully  V.  Trianglo  Fihn  Co.,  229 


Fed.  297;   Copyright  rule  No.  2,  214 
V.  S.  536;  supra,  §  150. 

41  Johnson  v.  Wyatt,  2  De  G.,  J. 
&  S.  18;  Drone  on  Copyright,  517, 
518. 

42  Louis  De  Jouge  &  Co.  v.  Breu- 
ker  &  Kessler  Co.,  147  Fed.  763. 
See  supra,   §  277. 

43  Matthewson  v.  Stockdale,  12 
Ves.  270;  Wilson  v.  Luke,  1  Viet. 
Law  R.  127;  Prince  Albert  v. 
Strange,  1  Mac.  &  G.  25,  46;  Little 


§278]  TO    RESTKAIX    INFRINGEMENT    OF    COI'YRIOilTS  1 40.'» 

continue  the  publication  thian  can  result  to  ihr  plaiutitt'  frum 
his  continuing.^* 

It  has  been  held  in  England  that  if  a  work  be  libelous,  im- 
moral, or  blasphemous,  which  last  named  term  would  include 
one  "which  impugned  the  doctrines  of  the  immateriality  and 
immortalitj^  of  the  soul,"*^  there  can  be  no  copyright  therein, 
and  a  piratical  edition  thereof  will  not  be  enjoined.*^  These 
decisions,  however,  one  of  which  stigmatized  as  unworthy  of 
protection  Byron's  "Cain,"*'  have  been  severely  criticised," 
and  it  is  not  likely  that  they  would  be  fully  sustained  if  the 
question  should  be  raised  in  the  United  States;  although  in  a 
case  in  the  Federal  courts  Judge  Deady  assigned  as  one  among 
several  reasons  for  refusing  to  enjoin  an  unauthorized  repre- 
sentation of  "The  Black  Crook,"  that  it  "only  attracts  atten- 
tion as  it  panders  to  a  prurient  curiosity  or  an  obscene  imagina- 
tion by  very  questionable  exhibitions  and  attitudes  of  the  female 
person."  *^ 

"An  author  who  has  pirated  a  large  part  of  his  book  from 
others  is  not  entitled  to  have  his  copyright  protected."  5°  h 
has  been  held :  that  the  fact  that  a  complainant  is  a  member  of 
an  illegal  combination,  formed  to  restrain  interstate  commerce, 
is  no  defense  to  a  suit  for  the  infringement  of  a  copyright. ^^ 
Injunctions  to  restrain  breaches  of  copyright  may  be  served  and 
enforced  by  contempt  proceedings,  anywhere  in  the  United 
States;  52  and,  at  least  when  they  protect  dramatical  and  musical 

V.  Gould,  2  Blatchf.  16;"3;   Droue  on  Chancellors,    ch.    cexiii;     Drone    on 

Copyright,  516-519.  Copyright,  181-196. 

44  Spottiswoode  v.   Clarke,  2  Phil.  49  Martinetti  v.  Maguire,  1  Doady, 

154;  Cox  V.  Land  &  W.  J.  Co.,  L.  R.  216,  223. 

9    Eq.    324;    Lodge    v.    Stoddart,    9  50  Edward   Thompson   Co.   v.   Am. 

Rep.  137.     But  see  Emerson  v.  Dav-  Law   Book   Co.,   C.   C.  A.,   122   Fed. 

ies,  3  Story,  768.  922,  926,  per  Cox,  J.,  62  L.R.A.  607. 

«  Lawrence  v.  Smith,  Jacob,  471.  But  see  Beutley  v.  Tibbals,  C.  C.  A., 

46Waleot    v.    Walker,    7    Ves.    1;  223   Ted.   247,   S.   E.   Hendricks  Co. 

Stockdale  v.  Onwhyn,  5  Barn.  &  Cr.  v.  Tlionipson  Pub.  Co.,  242  Fed.  ?.7. 

173;    Murray  v.  Benbow,  6  Petersd.  40  Halo  on  Copyright  and  Literary 

Abr.  559;  Lawrence  v.  Smith,  Jacob,  Property,     13    Corpus    Juris.     1197. 

471;   Southey  v.  Sherwood,  2  Meriv.  See   supra,    §182. 

435.     But  see  Burnett  v.  Chetwood,  61  Seribner    v.    Straus,    130    Fed. 

2  Meriv.  441.  389. 

47  Murray   v.   Benbow,   6   Petersd.  62  35    St.   at   L.    1084,   Comp.   St., 
Alir.  559.  jj  95.57. 

48  Campbell 's   Lives    of    the    Lord 


1406  INJUNCTIONS  [§278 

compositions,  the  defendant  may  move  to  dissolve  the  same  in 
any  circuit  in  which  he  is  engaged  in  such  performance ;  ^^  and 
suits  for  such  injunctions  may  be  instituted  in  any  district 
where  the  defendant  or  his  agent  may  be  found.^^ 

§  279.  Injunctions  to  restrain  the  unlawful  use  of  trade- 
marks. Injunctions  to  restrain  tlie  use  of  trade-marks  by 
others  than  their  owners  are  granted  by  courts  of  equit}',  it  has 
])een  said,  partly  to  prevent  the  fraud  upon  the  public  which 
would  otherwise  be  perpetrated,  and  partly  on  account  of  the 
difficulty  of  estimating  the  injury  which  would  be  caused  the 
owner  of  a  trade-mark  from  its  improper  use.^  The  former 
ground  of  the  interference  of  the  court  has,  however,  been  ex- 
pressly repudiated  by  a  great  judge.  Lord  Westbury,  who  said, 
when  Lord  Chancellor,  in  delivering  the  judgment  in  a  leading 
case:  "Imposition  upon  the  public  becomes  the  test  of  the 
property  in  the  trade-mark  having  been  invaded  and  injured,  but 
not  the  ground  on  which  the  court  rests  its  jurisdiction."  ^ 

"Trade-marks  are  of  two  kinds.  They  may  consist  of  pic- 
tures or  symbols  or  a  peculiar  form  and  fashion  of  label,  or 
simply  of  a  word  or  words,  which,  in  whatever  form  printed  or 
represented,  continue  to  be  the  distinguishing  mark  of  the  manu- 
facturer who  has  appropriated  it  or  them,  and  the  name  by 
which  his  products  are  known  and  dealt  in. "  ^  "  Where  the  trade- 
mark consists  of  a  picture  or  sj^mbol,  or  in  any  peculiarity  in  its 
appearance  of  the  label,  the  imitation  must  be  such  as  to  amomnt 
to  a  false  representation,  liable  to  deceive  the  public,  and  enable 
the  imitator  to  pass  off  his  goods  as  those  of  the  person  whose 
trade-mark  is  imitated.  And  when  there  is  such  an  absence  of 
resemblance  that  ordinary  attention  would  enable  customers  to 
discriminate  between  the  trade-marks  of  different  parties,  the 

62  .35  St.  at  L.  1075,  §  25,  Pierce  's  2  Leather  C.  Co.  v.  American  L. 
Fed.  Code  Supp.  §  1587.                             C.  Co.,  10  Jiir.  (N.  S.)  81.    But  see 

63  Ibid.    §  .35,  Pierce  Supp.  §  1589.       the  language   of  Coxe,   J.,   in   Shaw 
§  279.     1  Perry  v.  Truefit,  6  Beav.       Stocking  Co.  v.  Mack,  12  Fed.   707, 

66,   73;    Croft  v.  Day,  7  Beav.   84;       710. 

Leather   C.    Co.    v.    American   L.    C.  8  Judge  Rapallo  in  Hier  v.  Abra- 

Co.,  10  .Jur.'(N.  S.)   81;   Walton  v.       hams,   82   N.   Y.   519,   523,   37    Am. 

Crowley,     3     Blatehf.     440;      Shaw       Rep.  589. 

Stocking  Co.  v.  Mack.  12  Fed.  707. 

See  High  on  Injunctions,    (4th  ed.) 

§§  1063-1084. 


5;  279]  TO    RESTRAIN    INFRINGEMENT   OK    TRADE-MARKS  1  JH" 

court  will  not  interfere."*  "But  where  the  trade-mark  con- 
sists of  a  word,  it  may  be  used  by  the  manufacturer  who  has 
appropriated  it,  in  any  style  of  print,  or  in  any  form  of  label, 
and  its  use  by  anothoi-  is  unlawful.  Tke  statute"  of  New  York 
"re(iuircs  only  that  the  imitation  should  be  either  the  same  to 
the  eye,  or  in  sound  to  the  oar,  as  the  genuine  trade-mark,  and 
this  accords  with  the  authorities."^ 

"To  make  an  exclusive  right  to  use  a  name  or  syinl)ol  as  a 
trade-mark,  such  use  must  be  new;  if  ever  before  used  as  ai)pli- 
cable  to  a  like  article,  it  cannot  be  exclusively  appropriated,  if 
the  article  is  known  to  commerce  in  general,  by  the  term  claimed, 
as  a  trade-mark,  the  claim  is  ill-founded.  If  the  term  employed 
indicates  the  nature,  kind,  or  quality  of  the  article,  instead  of 
showing  its  origin,  an  exclusive  right  to  its  use  is  not  main- 
tainable."^ 

A  voluntary  association  for  religious,  fraternal,  benevolent  or 
social  purposes  may  enjoin  the  use  of  another  of  a  name  or 
emblem  so  similar  to  its  own  as  to  be  likely  to  induce  persons 
to  join  or  deal  with  the  defendant,  as  the  plaintiff.'  But  it  has 
been  held  that  Vassar  College  has  no  right  to  enjoin  the  sale 
of  confectionery  as  Vassar  Candy.* 

By  the  Act  of  February  20,  1905,  "No  action  or  suit  shall  be 
maintained  under  the  provisions  of  this  Act  in  any  case  when  the 
trade-mark  is  used  in  uidawful  business,  or  upon  any  article 
injurious  in  itself,  or  which  mark  has  been  used  witli  the  design 
of  deceiving  the  public  in  the  purchase  of  merchandise,  or  has 
been  abandoned,  or  upon  any  certificate  of  registration  fraud- 
idently  obtained. ' '  ^  Before  this  enactment  in  accordance  with  the 
maxjim  that  he  who  seeks  equity  must  come  with  clean  hands, 
it  is  well  established  that,  if  the  trade-mark  for  which  pro- 
tection is  sought  contains  representations  calculated  to  deceive 
the  public,  an  injuiiction  will  be  denied  the  plaintitf.i" 

An  act  of  Congress  allowing  suits  to  enjoin  the  use  of  trade- 

4  Ibid.  Biscuit  Co.,  197  Fed.  982. 

6  Ibid.  9  Act   of   Fob.    20.    IDO.-),   Vh.   .^i!>2. 

6  Van  Beil  v.  Prescott    (The  Eye       §21,  .'..'l  St.  at  L.  721). 

&  Rock  Case),  82  N.  Y.  630.  10  lA'athor  ('.   Co.  v.  Anierifaii   I-. 

7  Talbot  V.  Independent  order  of  C.  Co.,  11  H.  L.  C.  523;  s.  c.  in  a 
Owls,  C.  C.  A.,  220  Fed.  660.  lower    court,    10    Jur.    (X.    S.)    81; 

8  Vassar    College    v.    Loose-Wiles  Fowle  v.  Spear,  7  Penu.  L.  J.  176; 


1408 


INJUNCTIONS 


[§279 


marks  to  be  brought  in  a  Federal  court  against  a  citizen  of  the 
same    State    as   the    complainant    was    held   unconstitutional." 
The    later    statutes    give    the    Federal    courts    jurisdiction    of 
such  a  suit  when  the  plaintiff  has  registered  his  trade-mark  for 
use  in  commerce  with   foreign   nations,   or   among  the   several 
States,  or  with  Indian  tribes;  provided  he  is  domiciled  within 
the  territory  of  the  United  States,  or  resides  in,  or  is  located  in, 
any  foreign  country  which  affords  similar  privileges  to  the  citi- 
zens of  the  United  States ;  and  provided,  that  the  defendant  has 
used    the   trade-mark    in   the    course    of    commerce   among   the 
several  States,   or  with  a   foreign  nation,  or  with  the   Indian 
tribes.i2     ''The  several  courts  vested  with  jurisdiction  of  cases 
arising  under  the  present  Act  shall  have  power  to  grant  injunc- 
tions, according  to  the  course  and  principles  of  equity  to  prevent 
the  violation  of  any  right  of  the  owner  of  a  trade-mark  regis- 
tered under  this  Act  on  such  terms  as  the  court  may  deem  rea- 
sonable. "^^     Such  an  injunction  may  be  served  anywhere  in 
the  United  States  and  may  be  enforced  by  contempt  proceedings 
by  the  District  Court  of  any  district  or  by  the  Supreme  Court  of 
tiie  District  of  Columbia,  or  by  any  judge  of  either  of  such 
courts.i3a     This  statute  does  not  give  the  Federal  courts  juris- 
diction of  a  suit  betAveen  citizens  of  the  same  State  to  enjoin  un- 
fair competition  in  trade,  where  the  complainant  has  no  valid 
and  exclusive  trade-mark.^* 

A  delay  of  eighteen  months  before  an  application  for  a  pre- 
liminary injunction  against  unfair  competition  was  held  suffi- 
cient laches  to  defeat  the  motion. ^^ 

A  disuse  of  complainant's  trade-mark  before  suit  will  not  de- 
feat the  complainant's  right  to  an  injunction,  when  the  de- 
fendant continued  to  use  the  trade-mark  sometime  after  notice 


Heath  v.  Wright,  3  Wall.  Jr.  141; 
Ginter  v.  Kinney  Tobacco  Co.,  12 
Fed.  782.     See  supra,  §  79a. 

11  Trade-Mark  Cases,  100  U.  S. 
82,  25  L.  ed.  550. 

12  Act  of  Feb.  20,  1905,  Ch.  592, 
§§  1,  16,  17,  33  St.  at  L.  724,  728, 
729,  as  amended  May  4,  1906,  Ch. 
2081.  34  St.  at  L.  168,  Feb.  18, 
1909,  Ch.  144,  35  St.  at  L.  628. 
Comp.  St.   §0485,  9501,  9502. 


13  -.v.)  St.  at  L.  729,  §  19,  Comp. 
St.   §9504. 

13a  33  St.  at  L.  729,  Comp.  St., 
§  9505.     See  infra,  §  429. 

14El5jin  Nat.  Watch  Co.  v.  Illi- 
nois Tr.  C.  Co.,  179  U.  S.  665,  45 
L.  ed.  365. 

15  C.  O.  Burns  Co.  v.  W.  F.  Burns 
Co.,  118  Fed.  944.  See  supra,  §  181. 
Thomas  G.  Plant  Co.  v.  May  Mer- 
cantile  Co.,  153  Fed.  229. 


§281] 


TO   KXFOKCE   CONTRACTS  NOT   AFFECTING    LAND 


140') 


to  desist,  and  in  the  suit  contest  the  complainant's  exclusive  right 
to  the  same.^® 

A  preliminary  injunction  against  the  infringement  of  a  trade- 
mark will  not  be  granted  if  the  title,  validity  or  infringement 
are  doubtful.^''' 

The  writ  may  contain,  in  addition  to  an  injunction  again.st 
the  infringement  of  a  tratle-mark,  a  proiiibition  of  the  use  of 
any  mark  "so  similar  to  com])lainant's  as  to  be  likely  to  deceive 
purchasers. ' '  ^* 

§280.  Injunctions  to  prevent  the  opening  of  letters.  In- 
junctions may  be  granted  to  restrain  the  opening  of  business 
letters.^ 

§  281.  Injunctions  to  compel  the  performance  or  prevent  the 
breach  of  contracts  not  affecting-  land.  The  perfonuance  (if 
a  contract  not  affecting  lands  will  be  enforced  in  equity  by 
means  of  an  injunction  when,  and  only  when,  a  judgment  for 
damages  would  be  no  adequate  remedy  for  its  breach ;  ^  and  it 
does  not  require  a  purely  personal  act  which  it  would  be  impos- 
sible for  the  court  to  enforce,^  or  continued  acts  for  an  inde- 
terminate term,  which  will  require  the  constant  supervision  by 
the  court  subsequent  to  the  decree.^ 

The  inadequacy  of  the  remedy  at  law  which  will  entitle  one 
to  specific  performance  of  a  contract  may,  it  has  been  held,  be 
proved  by  the  fact  that  the  damages  in  money  cannot  be  ascer- 
tained.* 

In  some  cases  an  injunction  may  be  obtained  to  i-estrain  a 
defendant  from  violating  a  negative  promise  contained  in  a 
contract,  although  the  court  has  no  power  specifically  to  enforce 
the  affirmative  promises  contained  therein.^     Thus,  when  opera 


16  11)1,1. 

17Esta  Co.  V.  Burke,  257  Fed. 
743.     See  supra,  §  277. 

18  Capewpll  Hors;^  Nail  Co.  v. 
Green,  C.  C.  A.,  188  Fed.  20. 

§  280.  1  Schelle  v.  Brackell,  11  W. 
R.  796;  David  Kennedy  Corp.  v. 
Konnp.ly,   105  N.  Y.  353,  359. 

§281.     1  Buxton  v.  Lister,  3  Alk. 
383;      Robinson      v.      Cathcart,      2 
Cranch    C.   C.   590;    Tayloo   v.   Mor 
chants'   Fire   Ins.   Co.,   0    How.    -.',90. 
1.3    I..    o<\.    187;    Verv    v.    T>pvv,    13 


How.  345,  14  L.  tnl.  173.     ftco  .vi//././. 
§  148. 

2  Clarke  v.  Price,  2  Wilson  Ch. 
Cas.  157;  Mair  v.  Himalaya  T.  Co., 
L.  R.  1  Eq.  411. 

3  Sewerage  and  Water  Board  v. 
Howard,  C.  C.  A.,  175  Fed.  555. 

4  Addorley  v.  Dixon,  1  Sim.  &  Stu. 
607;  Sullivan  v.  Tut-k,  1  Md.  Ch. 
"9 ;  Finley  v.  Aiken,  1  Grant 's  Cases 
(Pa.)    83;   Bispham 's  Eq.,  §369. 

5  Montjromcry  IJjrlit  &  Power  ('••. 
v.     Mont^dinoiy     TraitioJi    Co.,     191 


1410  INJUNCTIONS  [§281 

singers  of  extraordinary  talent  had  contracted  to  sing,^  or 
dancers  of  extraordinar}'  character  had  contracted  to  dance,''' 
at  the  plaintiff's  theatre  and  nowhere  else,  or  a  ball  player  had 
contracted  to  give  his  exclusive  services  to  a  baseball  club ; ' 
injunctions  have  been  granted  to  restrain  them  from  perform- 
ing in  rival  establishments,  although  they  could  not  be  com- 
pelled to  sing,  dance,  or  play  for  the  plaintiffs.  An  injunction, 
however,  will  not  issue  to  prevent  a  similar  breach  of  his  con- 
tract of  employment  by  a  person  whose  abilities  are  not  so  ex- 
traordinary that  his  place  cannot  be  filled,*  nor  when  the  con- 
tract is  not  mutual ;  ^^  nor  when  the  complaint  shows  that  the 
damages  for  the  breach  of  contract  might  easily  be  liquidated. ^^ 
Where  a  traction  company  had  agreed  to  hire  electric  power 
from  another  company  during  a  period  of  years,  the  court  while 
refusing  specific  performance  enjoined  the  traction  company 
from  taking  electric  power  from  anyone  except  the  plaintiff.^^ 
The  rule  has  been  thus  stated  by  Judge  Lowell:  "I  think  the 
fair  result  of  the  later  cases  may  be  thus  expressed :  If  the  case 
is  one  in  which  the  negative  remedy  of  injunction  will  do  sub- 
stantial justice  between  the  parties,  by  obliging  the  defendant 
either  to  carry  out  his  contract  or  lose  all  benefit  of  the  breach. 

Fed.  657;  S.  C,  219  Fed.  963;  aff 'd,  nati  Exhibition  Co.  v.  Marsans,  216 

C.    C.    A.,    229    Fed.    672,    where    a  Fed.    269;    Star    Co.    v.   Press   Pub. 

street     railway     company     was     en-  Co.,  162  App.  Div.   (N.  Y.)   486. 

joined  from  refusing  to  perform   a  9  Ibid. ;    Metropolitan    Ex.    Co.    v. 

contract  binding  itself  to  take  from  Ewing,    42    Fed.     198;     Burney     v. 

the  plaintiff,  at  an  agreed  price,  all  Ryle,   91    S.   E.    701,   17    S.    E.    986 

the  electric  power  which  it  required  (an  insurance   agent)  ;    Johnston   v. 

for  a  term  of  years.  Hunt,  66  Hun  (N.  Y.),  504;  Strow- 

6  Lumley  v.  Wagner,  1  De  G.,  M.  bridge   L.    Co.    v.    Crane,   35   N.   Y. 

&  G.    604;    McCaull   v.   Braham,    16  State  Rep.  73    (a  designer  of  litho- 

Fed.  37.     It  is  not  a  prerequisite  to  graphs)  ;    Cort    v.    Lassard,    18    Or. 

the  injunction   that   the   defendants  221,  6  L.  E.   A.   653    (an  acrobat)  ; 

are  the  stars  of  complainant's  enter-  S  ]51e,  supra. 

tainment  or  that  the  entertainment  10  Lerner  v.  Tetrazzini,  71  Misc. 
would  be  stopped  because  of  their  (N.  Y.),  182.  See  Cincinnati  Ex- 
withdrawal.  Comstock  V.  Lopoko-  hilntion  Co.  v.  Marsans,  216  Fed. 
wa,  190  Fed.  599.  See  High  on  In-  269.  High  on  Injunctions  (4th  ed.), 
junctions    (4th   ed.),    §§  1163-1164c.  §  1109a. 

'i  Comstock  V.  Lopokowa,  190  Fed.  H  Sewerage   and  Water   Board  v. 

599.     See  High  on  Injunctions   (4th  Howard,  C.  C.  A.,  175  Fed.  555. 

ed.),  §§  1163-1164C.  12  Montgomery     Light     &     Water 

8  Philadelphia  Ball  Club  v.  Lajoie,  Power  Co.  v.   Montgomery   Traction 

202  Pa.  210,  58  L.R.A.  227,  90  Am.  Co.,  191  Fed.   657;    s.   c,   219   Fed. 

St.  Rep.   627,  51   Atl.   973;    Cinciu-  963,  aff'd  C.  C.  A.,  229  Fed.  672. 


§  281a]     TO  RESTRAIN   RKVOCATIOX   OR  REFUSAL  OF  LICENSE  1411 

and  the  remedy  at  law  is  inadequate,  and  there  is  no  reason  of 
policy  against  it,  the  court  will  interfere  to  restrain  cojiduct 
which  is  contrary  to  the  contract,  although  it  may  be  unable  to 
enforce  a  specific  performance  of  it."  ^^  lUit  wliere  the  affirma- 
tive promise  cannot  be  specifically  enforced,  the  court  will  not 
import  into  it  a  negative  covenant,  which  is  neither  expressly 
nor  by  a  fair  implication  contained  therein.^* 

So  an  employee  may  be  enjoined  from  carrying  away  docu- 
ments containing  trade  secrets,^^  or  from  disclosing  to  others 
the  trade  secrets  of  his  master.^^  Where  irreparable  injury 
would  be  otherwise  caused,  an  injunction  may  be  granted  to 
prevent  a  stranger  from  inducing  a  party  to  a  contract  to  violate 

the  same.^' 

§  281a.  Injunctions  to  prevent  the  revocation  or  refusal  of 
a  permit  or  license.  When  irreparable  injury  would  otherwise 
result  by  damages  to  the  complainant's  business  or  otherwise, 
a  Federal  court  of  equity  may  enjoin  the  revocation  by  a  pub- 
lic officer  of  a  permit  or  license  for  the  transaction  of  business,^ 
or  in  certain  cases  the  refusal  of  a  license  or  permit.^  Such  in- 
junctions have  been  granted  to  restrain  the  revocation  of  a 
license  to  transact  business  in  a  State  which  has  been  issued 


13  Singer  Co.  v.  Union  Co.,  1 
Holmes,  2.53,  2.58.  See  also  Ood- 
(lard  V.  Wilde,  17  Fed.  84.5;  W.  U. 
Tel.  Co.  V.  Union  Pae.  Ry.  Co.,  ?, 
Fed,  423;  W.  U.  Tel  Co.  v.  St. 
Joseph  &  W.  Ry.  Co.,  3  Fed.  430; 
Met.  El.  Supply  Co.  v.  Ginder 
(1901),  L.  R.  2  Ch.  799;  Harrison 
V.  Clucose  Sugar  Ref.  Co.,  C.  C.  A., 
;58  L.R.A.  915,  116  Fed.  304.  Dela- 
ware L.  &  W.  R.  Co.  V.  Switchmen's 
Union,  158  Fed.  541. 

14  Clarke  v.  Price,  2  Wilson  Ch. 
C.  157;  Pickering  v.  Bishop  of  Ely, 
2  Y.  &  C.  Ch.  C.  249;  .Jolmson  v. 
S.  &  B.  Ry.  Co.,  3  De  G.,  M.  &  G. 
914;  Bispham's  Eq.,  §4(14;  Kerr 
on  Injunctions,  524. 

15  Union  Switch  &  Signal  Co.  v. 
Sperry,  169  Fed.  926. 


16  Ibid. ;  High  on  Injunctions 
(4th  ed.),   §§19,  984,  1108. 

17  Beeknian  v.  Marsters,  195  Mass, 
205,  11  L.R.A.  (N.S.)  201,  122  Am. 
St.  Rep.  232,  80  N.  E.  817,  11  Ann. 
Cas.  332 ;  Am.  Law  Book  Co.  v.  Ed- 
ward Thompson  Co.,  Bishoff,  J.,  N. 
Y.  Special  Term,  1907.  The  Lloyd 
Sabaudo  v.  Cubicciotti,  159  Fe«1, 
191,     See  §  276,  supra. 

§281a.  1  Wisconsin  v.  Phila.  & 
Reading  Coal  Co.,  241  U,  S.  331. 

2  .Jacob  lloflfnian  Brewing  Co.  v. 
McElligott,  C.  C.  A.,  259  Fed.  525; 
I'rodenberg  v.  Wliitniv,  24li  Fed. 
819  (a  mate's  license).  Contra, 
Manchester  Fire  Ins.  Co.  v.  Herriott, 
91   Fed.  711  716. 


J  412 


INJUNCTIONS 


§282 


to  a  foreign  corporation,^  such  as  an  insurance  company,*  or 
a  railroad  company,^  or  a  coal  company.^  The  court  refused 
to  issue  an  injunction  against  the  refusal  to  issue  an  annual 
license  to  an  insurance  company,  which  had  refused  to  obey  the 
statutory  prerequisites,  because  it  contended  that  these  were  un- 
constitutional.' An  injunction  was  issued  forbidding  a  Fed- 
eral collector  of  internal  revenue  from  refusing  to  sell  revenue 
stamps  to  brewers.^  An  injunction  has  been  granted  to  restrain 
forfeiture  of  the  interest  of  a  part  owner  of  mining  claims.* 

Under  a  municipal  ordinance,  providing  that  permits  for  the 
exhibition  of  moving  pictures  shall  not  be  granted,  if  the  picture 
be  immoral  or  obscene,  or  portrays  any  riotous,  disorderly,  or 
other  unlawful  scenes,  or  has  a  tendency  to  disturb  the  public 
peace,  a  permit  to  exhibit  a  moving  picture  film,  which  contains 
scenes  of  torture  that  may  be  terrif.ving  and  horrifying,  cannot 
be  denied;  the  picture  not  being  one  falling  within  those  pro- 
hibited.io 

An  exclusive  license  under  a  patent  is  a  unique  property  right, 
against  the  destruction  of  which  a  court  of  equity  will  give  pro- 
tection by  injunctive  relief. ^^ 

One  who  has  not  been  injured  thereby  has  no  standing  to  at- 
tack the  validity  of  an  ordinance  on  the  ground  that  it  vests  an 
arbitrary  power  to  a  board  to  grant  or  refuse  licenses. ^^ 

§  282.  Injunctions  to  compel  the  delivery  of  personal  prop- 
erty tortiously  w^ithheld.     Under  very  extraordinary  circum- 


3  Fox  Film  Corp.  v.  City  of -Chi- 
cago, 247  Fed.  231;  Greenwicli  Ins. 
Co.  V.  Carroll,  125  Fed.  121,  p.  394; 
Met.  Life  Ins.  Co.  v.  McNall,  81 
Fed.  888;  Chicago  E.  I.  &  P.  Ey. 
Co.  V.  Ludwig,  156  Fed.  152;  Chi- 
cago, E.  I.  &  P.  Ey.  Co.  V.  Swanger, 
157  Fed.  783;  Wisconsin  v.  Phila. 
&  Eeading  Coal  Co.,  241  U.  S.  331. 

4  Ibid.  Met.  Life  Ins.  Co.  v.  Mc- 
Nall, 81  Fed.  888. 

5  Chicago,  E.  L  &  P.  Ey.  Co.  v. 
Ludwig,  156  Fed.  152;  Chicago,  E. 
I.  &  P.  Ey.  Co.  V.  Swanger,  157  Fed. 
783.     See  Harrison,  232   U.   S.  318. 

6  Wisconsin  v.  Philadelphia  & 
Eeading  Coal  &  Iron  Co.,  241  U.  S. 


329,  affirming  216  Fed.  199.  See 
Harrison  v.  St.  Louis  &  San  Fran- 
cisco E.  E.  Co.,  232  U.  S.  318. 

7  Manchester  Fire  Ins.  Co.  v.  Her 
riott,  91  Fed.  711,  716. 

8  Jacob  HofiPman  Brewing  Co.  v. 
McElligott,  C.  C.  A.,  259  Fed.  525. 

9  Under  U.  S.  E.  S.,  §2324;  Pack 
V.  Thompson,  C.  C.  A.,  223  Fed.  641, 
643. 

10  Fox  Fihn  Corp.  v.  City  of  Chi 
eago,  247  Fed.  231. 

llBarnett  v.  Q.  &  C.  Co.,  C.  C. 
A.,  226  Fed.  935. 

l2Yee  Gee  v.  City  &  County  of 
San  Franciseo,  235  Fed.  757. 


§  288a]   To  KK^TKAIN   KXFORCEMEXT  OF  DISTRESS!   WARRANTS         141:J 

stances,  equity  will  interfere  to  eompel  by  injunction  the  de- 
livery or  return  of  letters,  documents,  or  other  articles  of  such 
a  unique  character  tiiat  it  would  be  impossible  to  i-eplace  them, 
when  they  are  tortiously  withheld  from  their  rijrhtful  owners.^ 

§283.  Injunctions  authorized  by  statute.  The  statutes  «»f 
the  L'nited  States  also  autliorize  an  injunction  in  the  following 
cases,  amongst  others,  besides  those  ai'ising  from  infringeuients 
of  patents,^  copyrights,^  trademarks,^  and  anti-monopoly  laws,* 
which  are  elsewhere  discussed.  Compliance  with  the  Interstate 
Coinmerce  Act  ma}'  also  in  certain  cases  be  compelled  by  an  in- 
junction.^ 

§  283a.  Injunctions  to  restrain  enforcement  of  warrants  of 
distress.  '"An^'  person  who  considers  himself  aggrieved  Ijv 
any  warrant  of  distress  issued  under  the  provisions  of  the 
statutes  authorizing  one  to  be  issued  by  the  Solicitor  of  tiie  Treas- 
ury against  an  ot^cer  in  default  for  not  accounting  for  and  pay- 
ing over  pul)lic  money  received  by  him,  'may  prefer  a  bill  of 
complaint  to  any  district  judge  of  the  United  States,  setting  forth 
therein  the  nature  and  extent  of  the  injury  of  which  he  com- 
plains; and  thereupon  the  judge  may  grant  an  injunction  to  stay 
proceedings  on  such  warrant  altogether,  or  for  so  much  thereof  as 
the  nature  of  the  case  requires.  But  no  injunction  shall  issue  till 
the  party  aj)plying  for  it  gives  bond  with  sufficient  .security, 
in  a  sum  to  he  prescribed  by  the  judge,  for  the  performance  of 
such  judgment  as  may  be  awarded  against  liim ;  nor  shall  the 
issuing  of  .such  injunction  in  any  manner  impair  the  lien  pro- 
duced by  the  issuing  of  the  warrant.  And  the  same  proceed- 
ings shall  be  had  in  such  injunction  as  in  other  cases,  except 
that  no  answer  shall  be  necessary  on  the  part  of  the  United 
States;  and  if.  u]X)n  dissolving  the  injunction,  it  appears  to  the 
satisfaction  of  the  judge  that  the  application  for  the  injunction 
was  merely  for  delay,  the  judge  may  add  to  the  lawful  interest 
a.ssessed  on  all   sums   found   due  against  the  complainant  such 

§  282.     1  Pusey  v.  Pusey,  1  Vein.  §  283.     1  See  supra,  §  277. 

273;   Duke  of  Somerset   v.  Cookson,  ^^eempra,  §278. 

3  P.  Wins.  389;  Clarke  v.  White,  12  3  See  supra,  §  279. 

Pet.  178,  9  L.  ed.  1046;   Priuee  Al-  4  2fi  St.  at  L.  209,  snpni.  «S  l.'la. 

bert  V.   Strange,   1    Maeu.   &  G.   23,  276c'. 

42;   McGowiu  v.  Remington,  12  Pa.  6  24   St.  at   L.  380,  supra.  §§  77g, 

St.  56.  2761). 
Fe.l.  Prac.  Vol.  11—19 


1414  INJUNCTIONS  [  §  283b 

damages  as,  with  such  lawful  interest,  shall  not  exceed  the  rate 
of  ten  per  centum  a  year.  Such  injunction  may  be  granted  or 
dissolved  by  the  district  judge  either  in  or  out  of  court. '  ^ 
'When  the  district  judge  refuses  to  grant  an  injunction  to  stay 
proceedings  on  a  distress  warrant,  as  aforesaid,  or  dissolves  such 
injunction  after  it  is  granted,  any  person  who  considers  himself 
aggrieved  by  the  decision  in  the  premises  may  lay  before  the 
circuit  justice,  or  circuit  judge  of  the  circuit  within  which  such 
district  lies,  a  copy  of  the  proceedings  had  before  the  district 
judge;  and  thereupon  the  circuit  justice  or  circuit  judge  may 
grant  an  injunction,  or  permit  an  appeal,  as  the  case  may  be,  if, 
in  his  opinion,  the  equity  of  the  case  requires. '  ^ 

§  283b.  Injunctions  to  restrain  comptroller  of  the  currency. 
"Whenever  an  association  against  whic-h  proceedings  have 
been  instituted,  on  account  of  an  alleged  refusal  to  redeem  its 
circulating  notes  as  aforesaid,  denies  having  failed  to  do  so,  it 
may,  at  any  time  within  ten  days  after  it  has  been  notified  of 
the  appointment  of  an  agent,  as  provided  in  section  fifty-two 
hundred  and  tM^enty-seven '  of  the  Revised  Statutes  of  the  United 
States,  'apply  to  the  nearest  District,  or  Territorial  court  of 
the  United  States  to  enjoin  further  proceedings  in  the  premises ; 
and  such  court,  after  citing  the  Comptroller  of  the  Currency 
to  show  cause  why  further  proceedings  should  not  be  enjoined, 
and  after  the  decision  of  the  court  or  finding  of  a  jury  that  such 
association  has  not  refused  to  redeem  its  circulating  notes,  when 
legally  presented,  in  the  lawful  money  of  the  United  States, 
shall  make  an  order  enjoining  the  Comptroller,  and  any  receiver 
acting  under  his  direction,  from  all  further  proceedings  on  ac- 
count of  such  alleged  refusal. ' '  ^ 

§283c.  Injunctions  to  enforce  orders  of  the  United  States 
Shipping  Board.  The  Act  of  September  7,  1916,  which  creates 
the  United  States  Shipping  Board,  provides:  "In  case  of  vio- 
lation of  any  order  of  the  board,  other  than  an  order  for  the 
payment  of  money,  the  board,  or  any  party  injured  by  such  vio- 
lation, or  the  Attorney  General,  may  apply  to  a  district  court 
having  jurisdiction  of  the  parties ;  and  if,  after  hearing  the  court 
determines  that  the  order  was  regularly  made  and  duly  issued, 

§  283a.  1  U.  S.  E.  S.,  §  3636.        §  283b.  1  U.  S.  E.  S.,  §  5237. 
'2U.  S.  E.  S.,  §3637. 


§  283cl]  TO    REGULATE   COAL    MINING  1415 

it  shall  enforce  obedionce  thereof  by  a  writ  of  injunetiou  or 
other  proper  process,  mandatory  or  otherwise."^ 

**In  case  of  any  violation  of  any  order  of  the  board  for  the 
payment  of  money  the  person  to  whom  such  award  was  made 
may  file  in  the  district  court  for  the  district  in  which  such  per- 
son resides  or  in  which  is  located  any  office  of  the  carrier  or 
other  person  to  whom  the  order  was  directed,  or  in  which  is 
located  any  point  of  call  on  a  regular  route  operated  by  the 
carrier,  or  in  any  court  of  general  jurisdiction  of  a  State,  Terri- 
tory, District,  or  possession  of  the  United  States  having  juris- 
diction of  the  parties  a  petition  or  suit  setting  forth  briefly 
the  causes  for  wiiich  he  claims  damages  and  the  order  of  the 
board  in  the  premises. 

"In  the  district  court  the  findings  and  order  of  the  court  shall 
be  prima  facie  evidence  of  the  facts  therein  stated,  and  the  pe- 
titioner shall  not  be  liable  for  costs,  or  shall  he  be  liable  for 
costs  at  any  subsequent  stage  of  the  proceedings  unless  they 
accrue  upon  his  appeal.  If  a  petitioner  in  a  district  court  finally 
prevails,  he  shall  be  allowed  a  reasonable  attorney's  fee,  to  be 
taxed  and  collected  as  part  of  the  costs  of  the  suit. 

"All  parties  in  whose  favor  the  board  has  made  an  award  of 
reparation  by  a  single  order  may  be  joined  as  plaintiffs  and  all 
other  parties  to  such  order  may  be  joined  as  defendants,  in  a 
single  suit  in  any  district  in  which  any  one  such  plaintiff  could 
maintain  a  suit  against  any  one  such  defendant.  Service  of 
process  against  any  such  defendant  not  found  in  that  may  be 
made  in  any  district  in  which  is  located  any  office  of,  or  point 
of  call  on  a  regular  route  operated  by,  such  defendant.  Judg- 
ment may  be  entered  in  favor  of  any  plaintiff  against  the  de- 
fendant liable  to  that  plaintiff. 

"No  petition  or  suit  for  the  enforcement  of  an  order  for  the 
payment  of  money  shall  be  maintained  unless  filed  within  one 
year  from  the  date  of  the  order. ' '  ^ 

§  283d.  Injunctions  to  regulate  coal  mining  or  the  operar- 
tion  of  coal  mines.  The  Act  of  March  3,  1891,  regulating  the 
operation  of  coal  mines  in  Territories  of  the  United  States,  pro- 
vides:   "As  a  cumulative  remedy  in  case  of  the  failure  of  any 

§  28.3c.     1  Act  of  September,  1916,  2  Tlie    Act    of   Sept.    7.    1916,   vh. 

ch.  451,  §29.  .19  St.  at  L.  737,  Comp.       451,   §.30,   39   St.   at   L.   737,  Conip. 
St.,   §  81461111.  St.  §  81460. 


1416 


INJUNCTIONS 


[§  283e 


owner  or  manager  of  any  mine  to  comply  with  the  requirements 
contained  in  the  notice  of  the  Governor  of  such  Territory  or 
the  Secretary  of  the  Interior,  given  in  pursuance  of  this  act,  any 
court  of  competent  jurisdiction,  or  the  judge  of  such  court  in 
vacation,  may  on  application  of  the  mine  inspector  in  the  name 
of  the  United  States  and  supported  by  the  recommendation  of 
the  Governor  of  said  Territory,  or  the  Secretary  of  the  Interior, 
issue  an  injunction  restraining  the  further  operation  of  such 
mine  until  such  requirements  are  compiled  with,  and  in  order 
to  obtain  such  injunction  no  bond  shall  be  required."^ 

"Wherever  the  term  'owner  or  manager"  is  used  in  this  act 
the  same  shall  include  lessees  or  other  persons  controlling  the 
operation  of  any  mine.  And  in  case  of  the  violation  of  the  pro- 
visions of  this  act  by  anj'  corporation  the  managing  officers  and 
superintendents,  and  other  managing  agents  of  such  corporation, 
shall  be  personally  liable  and  shall  be  punished  as  provided  in 
act  for  owners  and  managers. ' '  ^ 

Compliance  with  the  Interstate  Commerce  Act  may  also,  in 
certain  cases,  be  compelled  by  an  injunction.' 

§  283e.  Injunctions  to  protect  political  rights.  A  Federal 
court  of  equity  will  net  grant  an  injunction  to  protect  rights 
which  are  purely  political  even  though  a  right  to  property  may 
be  thereby  incidentally  effected.^  Such  are :  a  bill  by  a  State  to 
enjoin  interference  with  its  government  by  the  President ;  ^  or 
by  the  Secretary  of  War:  '  or  by  a  general  of  the  army,*  and  a 
bill  by  a  citizen  of  a  State  on  behalf  of  himself  and  others  sim- 


§  28;!(1.  1  The  Act  of  March  3, 
1891,  eh.  564,  §  16,  26  St.  at  L.  1106, 
Comp.   St.,   §  3517. 

2  The  Act  of  March  .'5,  1891,  ch. 
564,  §  17,  26  St.  at  L.  1106,  Comp. 
St.  §  3518. 

3  24  St.  at  L.  380 ;  mpra,  §  276c. 

§  283e.  1  Georgia  v.  Stanton,  6 
Wall.  50,  18  L.  ed.  721;  Green  v. 
Mills,  C.  C.  A.,  30  L.  R.  A.  90,  69 
Fed.  852;  Anthony  v.  Burrow,  129 
Fed.  783;  Dallas  v.  Dallas  Consol. 
El.  St.  Ry.  Co.  (s.  c,  Texas,  June, 
1812),.  148  S.  W.  292;    Cf.  Georgia 


V.  Grant,  6  Wall.  241,  18  L.  ed.  848; 
Clough  V.  Curtis,  134  U.  S.  361,  33 
L.  ed.  945.  But  see  People  ex  rel. 
Miller  v.  Tool  (Colo.  Sup.  Ct.),  86 
Pae.  224,  defended  by  Henry  J. 
Hersey  before  Colo.  Bar  Ass  'n.  Sept, 
27,  28,  1906,  criticized  20  Harv.  L. 
Rev.  157. 

2  Mississippi   v.   Johnson,  4  Wall. 
475. 

3  Georgia  v.  Stanton,  6  Wall.  50, 
18  L.  ed.  721. 

4  Georgia  v.  Grant,  6  Wall.  241,  18 
L.  ed.   848. 


§  28;JeJ 


WiJEN  IXJLXCTIUNS  Wll.L  NOT  ISSUP: 


1U7 


ilarly  situated  to  enjoin  a  State  officer  from  the  execution  of  a 
State  registration  law  which  he  alleged  denied  him  his  rights 
under  the  Fifteenth  Amendment.^  But  a  taxpayer  who  was 
threatened  with  increased  taxation  was  given  an  injunction 
against  the  canvass  of  the  returns  of  an  unauthorized  election 
for  the  incorporation  of  a  city.^ 

The  Sui)reme  Court  of  the  Ijiited  States  has  taken  eognizance 
of  a  writ  of  error  to  review  a  decision  of  a  State  court"  upon  a 
question  involving  the  api)ortionment  of  Congressional  Dis- 
tricts.''' 

In  England  the  Kmpcror  of  Austria  and  Kiug  of  Iluufarv 
was  allowed  an  injunction  to  pi-event  Kossuth  and  his  asso- 
ciates from  manufacturing  in  England  paper  currency  not 
purporting  to  be  issued  by  imperial  authority,  intended  for 
eirculation  in  Hungary,  upon  the  ground  that  his  property 
rights  were  thereby  injured.8  In  a  Fedei-al  court  a  bill  Avas 
sustained  when  filed  by  the  consul  of  Austria  and  Iluiifrarv 
to  restrain  a  beneficial  associatii.n  from  using  the  name  of 
the  Emperor  of  those  countries  as  a  part  of  its  corporate 
name,  and  from  the  use  of  that  Empei-or's  portrait  as  a  part 
of  its  advertising  literature,  in  order  fraudulently  to  induce 
his  subjects  who  i-esided  in  the  United  States,  to  believe  that 
the  association  Wris  conducted  under  the  customs  of  their  own 
country,  and  that  tlieii-  Emperor  was  identified  with  the  same 
and  a  patron  thereof.^  A  Federal  court  Avill  not  compel  the 
enrollment  of  a  man  upon  a  voting  list  ">  to  certify  his  nomina- 
tion for  Congress  "  to  restrain  a  removal  from  public  office.12 

§284.  When  injunctions  will  not  issue.     As  a  general  rule, 
it  may  be  stated  that  an  injunction  will  not  issue  at  the  prayer 


6  Green  v.  Mills,  C.  C.  A..  30  L.  R. 
A.  90,  69  Fed.  852. 

6  Smith  V.  Board  County  Com  'rs 
Skagit  County,  45  Fed.  725. 

7  State  of  Ohio  v.  Hildohmnt,  241 
U.  S.  565,  570. 

8  Eni|)eror  of  Austria  v.  Day.  2 
Giff.  628 ;  s.  c.  on  ajipeal,  3  De  G  . 
F.  &  J.  217. 

9  Von  Thodorovich  v.  Franz 
Josef  Beneficial  Ass'n,  154  Fed.  911. 


10  Giles  V.  Harris,  189  T'.  8.  475, 
23  L.  ed.  909,  23  Sup.  Ct.  639. 

11  Anthony  v.  Burrow,  139  Fed. 
783. 

12i?r  Sawyer,  124  U.  S.  200.  31 
L.  ed.  402;  Wliite  v.  Berry,  171  U. 
S.  366,  18  Sup.  Ct.  917,  43  L.  ed. 
199,  a  gauger:  Cooper  v.  Smyth, 
84  Fed.  757,  an  assistant  postmaster, 
Morgan  v.  Nunn,  84  Fed.  5.^1,  clerk 
in    the   office   of   collector;    Page   v. 


1418 


INJUNCTIONS 


[§284 


of  one  who  will  suffer  no  pecuniary  injury  from  the  act  which 
he  wishes  to  prevent.^  Thus,  one  will  not  be  granted  at  the  suit 
of  a  State  to  prevent  the  invasion  of  a  purely  political  right ;  ^ 
or  of  adjacent  property  owners  and  church  members  to  prevent 
a  railroad  from  outraging  their  religious  feelings  by  running 
cars  upon  Sunday ;  ^  nor  at  the  suit  of  a  minister  of  the  gospel 
to  prevent  the  use  of  his  building  for  theatrical  purposes,  under 
a  lease  the  validity  of  which  he  disputes.*  An  injunction  will 
not  issue  to  prevent  an  injury  which  is  not  actually  threatened 
to  the  complainant.^  Thus  an  injunction  will  not  be  granted 
to  prevent  an  injury  to  a  navigable  stream,  at  the  suit  of  an 
individual  who  is  not  engaged  in  navigating  the  same ;  ^  nor,  at 
the  suit  of  a  coupon  holder  who  is  not  liable  to  the  payment  of 
taxes  to  a  State,  to  prevent  the  State  officers  from  refusing  to 
receive  his  coupons,  when  tendered  by  others  to  whom  he  has 
agreed  to  assign  them  for  the  payment  of  their  taxes,  in  pur- 
suance of  a  contract  made  by  the  State  with  its  creditors  and 
their  successors.'  "No  court  sits  to  determine  questions  of  law 
in  thesi."  ^  A  threat  of  irreparable  injury  to  a  right  actually 
enjoyed  and  exercised  by  the  complainant,  or  acts  indicating  a 
preparation  to  commit  such  a  wrong,  are,  however,  always  a 
ground  for  the  issue  of  an  injunction.^  The  Circuit  Court  of 
the  Southern  District  of  New  York  has  refused  to  grant  a  pre- 


Moffett,  85  Fed.  38,  Deputy  of  In- 
ternal Eevenue;  contra  Pridle  v. 
Thompson,  82  Fed.  686. 

§  284.  1  High  on  Injunctions, 
§20. 

2  Georgia  v  Stanton,  6  Wall.  .50, 
18  L.  ed.  721.     Supra,  §  283e. 

SSparhawk  v.  Union  P.  R.  Co., 
54  Pa.  St.  401. 

4Bodwell  V.  Crawford,  26  Kan. 
292,  40  Am.  Rep.  306. 

6  Slessinger  v.  Buckingham,  17 
Fed.  454. 

6  Spooner  v.  McConnell,  1  Mc- 
Lean, 337.  See  also  Mason  v.  Rol- 
lins, 2  Bliss.  99.  Cf.  Works  v.  .Junc- 
tion R.  Co.,  5  McLean,  425. 

7  Virginia    Coupon    Cases,    Marye 


V.  Parsons,  114  U.  S.  325,  29  L.  ed. 
205. 

8  Matthews,  J.,  in  Virginia  Cou- 
pon Cases,  Marye  v.  Parsons,  114 
U.  S  325,  330,  29  L.  ed.  205,  206. 
An  injunction  against  the  enforce- 
ment of  an  order  of  a  Railroad  Com- 
mission was  denied  where  the  Com- 
mission had  suspended  the  operation 
of  the  order.  Grand  Trunk  Ry.  Co. 
V.  Michigan  R.  R.  Com.,  198  Fed. 
1009. 

9  St.  Louis  V.  Knapp  Co.,  104 
U.  S.  658,  26  L.  883;  Sherman  v. 
Nutt,  35  Fed.  149;  Butz  Thermo- 
El.  Reg.  Co.  V.  Jacobs  El.  Co.,  36 
Fed.  191:  McArthur  v.  Kelly,  5 
Ohio,  139;  Frearson  v.  Loe,  L.  R.  9 


§284] 


WHEN    INJUNCTION'S    WILL  NOT    ISSl'E 


1419 


liminary  injunction  to  restrain  an  obstruction  to  navigation  in 
a  navigable  channel  coming  up  from  the  Bay  of  New  York, 
caused  by  a  structure  projecting  from  the  New  Jersey  shore. ^° 
An  injunction  cannot  be  issued  against  the  United  States ;  ^^ 
nor  against  an  officer  to  interfere  with  the  exercise  of  his  dis- 
cretion ;  **  nor  against  an  officer  of  the  United  States  to  prevent 
the  infringement  of  a  patent  by  him  while  in  the  exercise  of 
his  official  duties.^' 

The  Revised  Statutes  provide  that  "Xo  suit  for  the  pur- 
pose of  restraining  the  assessment  or  follee-tion  of  any  tax" 
imposed  by  the  United  States  for  i)urposes  of  internal 
revenue,  "shall  be  maintained  in  any  court. "^*  Under  this 
provision,  it  has  been  held  that  wherever  a  tax  is  imposed 
by  a  person  in  office  having  authority  over  the  assessment  of 
taxes  for  the  United  States,  and  acting  under  color  of  a  statute, 
no  injunction  will  be  issued  to  restrain  its  collection,  no  matter 
how  erroneous  the  assessment  may  be,  and  although  the  person 
against  whom  the  assessment  is  made  does  not  own  the  property 


Ch.  D.  48.    See  also  Piek  v.  C.  &  N. 
W.  Ky.  Co.,  6  Biss.  177. 

10  Atlantic  D.  Co.  v.  Bergen  Neck 
Ey.  Co.,  44  Fed.  208. 

11  U.  S.  V.  McLemore,  4  How.  286, 
11  L.  ed.  977;  HUl  v.  U.  S.,  9  Hov:. 
386,  13  L.  ed.  185;  mpra,  §  100. 

12  Mississippi  v.  Johnson,  4  Wall. 
475,  18  L.  ed.  437 ;  Walker  v.  Smith, 
21  How.  579,  16  L.  ed.  223;  McEl- 
rath  V.  Mcintosh,  1  Law  R.  (N.S.) 
399;  Warner  V.  S.  Co.  v.  Smith,  165 
U.  S.  28,  41  L.  ed.  621;  Smith  v. 
Reynolds,  9  D.  C.  App.  287,  166  U. 
S.  717,  41  L.  ed.  1186.  An  injunc- 
tion has  been  issued  to  restrain  the 
Secretary  of  the  Interior  from  the 
commission  of  an  act  beyond  his 
jurisdiction  which  would  cause  an 
irreparable  injury  to  the  plaintiff. 
Noble  V.  Union  R.  L.  R.  Co.,  147 
U.  S.  163,  37  L.  ed.  123;  Cf.  U.  S.  v. 
Nourse,  9  Pet.  8,  9  L.  ed.  31;  Kir- 
wan  V.  Murphy,  C.  C.  A.,  83  Fed. 
275,  s.  c,  49  U.  S.  App.  659.  It  has 
been  held  that  a  State  court  has  no 


power  to  enjoin  an  officer  of  the 
United  States.  People  ex.  rel.  Brow- 
er  V.  Kidd,  23  Mich.  440.  It  has 
been  held  that  an  injunction  will 
not  issue  to  restrain  the  Commis- 
sioner of  Patents  from  issuing  let- 
ters-patent. See  Illingworth  v. 
Atha,  42  Fed.  141;  supra,  §§95, 
100. 

13  James  v.  Campbell,  104  U.  S. 
356,  26  L.  ed.  786;  Hollister  v. 
Benedict  &  B.  Mfg.  Co.,  113  U.  S. 
59,  67,  28  L.  ed.  901,  903;  Belknap 
V.  Schild,  161  U.  S.  10,  40  L.  ed. 
599;   mpra,   §100;    infra.   §671. 

14  U.  S.  R.  S.,  §  3224.  It  has 
been  held  that  a  mandatory  injunc- 
tion requiring  a  collector  of  inter- 
nal revenue  to  accept  an  export 
bond  for  spirits  in  a  warehouse  anil 
to  allow  their  withdrawal  for  ex- 
port, without  payment  of  taxes,  is 
in  effect  a  bill  to  restrain  the  col- 
lection of  internal  revenue  and  can- 
not be  granted.  Miles  v.  John.stoii, 
59  Fed.  3S. 


1420 


INJUNCTIONS 


[§284 


taxed. ^^  "It  is  sufficient  that  a  statute  has  authorized  the  as- 
sessor to  entertain  the  general  subject  of  taxation;  that  it  was 
in  fact  entertained,  and  a  judgment,  lawful  or  unlawful,  was 
rendered  concerning  it. "  ^^  It  seems  that  the  unconstitutional- 
ity of  the  statute  imposing  the  tax  will  not  authorize  the  issue 
of  an  injunction ;  ^^  but  it  has  been  held  that  a  bill  to  restrain 
a  trustee  from  voluntarily  making  a  return  of  his  income  and 
from  paying  an  unconstitutional  income  tax  is  not  within  the 
prohibition  of  the  statute.^^  It  has  been  said  that  a  stockholder's 
bill  for  a  similar  purpose  may  in  a  proper  case  be  filed.^* 

An  injunction  cannot  issue  against  a  State  at  the  suit  of  a 
citizen  of  another  State  or  of  a  foreign  State.^o  Nor  can  a  man- 
datory injunction  issue  against  an  officer  of  a  State  so  as  to 
compel  the  action  of  the  State  against  its  expressed  will.^i  But 
an  officer  of  a  State  may  be  enjoined  from  an  invasion  of  private 
rights  which  would  cause  irreparable  injury,  when  about  to  act 
under  an  unconstitutional  State  statute.22  As  has  been  said 
before,  an  injunction  will  not  ordinarily  be  granted  to  stay  pro- 
ceedings in  a  State  court.^^  In  England,  a  person  may  be  re- 
strained from  petitioning  or  applying  to  the  legislature  in  order 
to  procure  the  passage  of  an  act  relating  solely  to  private  in- 
terests, provided  he  be  under  an  express  or  implied  agreement 


15Kensett  v.  Stivers,  10  Fed.  517; 
Pullan  V.  Kinsinger,  2  Abb.  U.  S. 
94;  Howlaiid  v.  Soule,  Deady,  413; 
Delaware  E.  Co.  v.  Prettyman,  17 
Int.  Eev.  Rec.  99;  Alkan  v.  Bean,  23 
Int.  Rev.  Eee.  351 ;  Kissinger  v. 
Bean,  7  Biss.  60;  U.  S.  v.  Black,  11 
Blatchf.  538.  But  see  Frayser  v. 
Russell,  3  Hughes,  227. 

16  Emmons,  J.,  in  Pullan  v.  Kin- 
singer,  2  Abb.  U.  S.  94,  99. 

17  Robbing  v.  Freeland,  14  Int. 
Rev.  Eee.  28;  Moore  v.  Miller,  5  D. 
C.  App.  413. 

18  Pollock  V.  Farmers '  L.  &  Tr. 
Co.,  157  U.  S.  429,  4.54,  653,  39  L. 
ed.  759,  844. 

19  Brnshaber  v.  Union  Pac.  E.  E. 
Co.,  240  U.  S.  1,  10. 

20  Eleventh  Amendment  of  the 
Constitution,  supra,  §  105. 


21  Louisiana  v.  Jumel,  107  U.  S 
711,  27  L.  ed.  448;  Antoni  v.  Green 
how,  107  U.  S.  769,  782-784,  27  L 
ed.  468,  474,  475;  Cunningham  v.  M 
&  B.  E.  Co.,  109  U.  S.  446,  27  L.  ed 
992 ;  sup^-a,  S  105c.  But  see  Me 
Cauley  v.  Kellog,  2  Woods,  13. 

22  0sborn  v.  Bank  of  U.  S.,  9 
Wheat.  738,  6  L.  ed.  204;  Davis  v. 
Gray,  16  Wall.  203,  21  L.  ed.  447; 
Board  of  L.  v.  McComb,  92  U.  S. 
531,  23  L.  ed.  623;  Virginia  Coupon 
Cases,  114  U.  S.  269,  29  L.  ed.  185; 
Louisiana  v.  Layarde,  60  Fed.  186; 
Ex  parte,  Young,  209  U.  S.  123,  52 
L.  ed.  714.  See,  however,  In  re 
Ayers,  123  U.  S.  443,  31  L.  ed.  216; 
supra,   §  105c. 

23  U.     S.     E.     S.,     §  720 ;     supra, 


>i  270;    infra,  S  554. 


ii  284a] 


AGAINST    SLANDERS    AND    LIBELS 


li2l 


uot  to  do  so,  or  his  doing  so  would  amount  to  a  breach  of  trust.** 
This  doctrine  has,  however,  never  been  upheld  iu  the  United 
States  and  in  a  well-eonsidered  case  in  New  Jersey  was  express- 
ly repudiated. 2^  An  injunction  will  not  issue  to  aid  in  the 
maintenance  of  a  monopoly  injurious  to  public  policy;*^  nor  in 
any  other  case  when  its  operation  would  be  repugnant  to  public 
policy.*'''  An  injunction  will  not  issue  when  the  removing  party 
has  a  plain,  adequate,  and  complete  remedy  at  law.*^ 

The  Revised  Statutes  of  the  United  States  provide  that  "no 
attachment,  injunction  or  execution  shall  be  issued  against  a 
'national  bank'  association  or  its  property  before  final  judg- 
ment in  any  suit,  action,  or  proceeding  in  any  State,  county,  or 
municipal  court.  ""*^  An  injunction  will  never  be  issued  mere- 
ly because  it  will  do  no  harm.^" 

§284a.  Injunctions  against  slanders  and  libels.  Tlie  early 
English  cases  held  that  an  injunction  would  not  issue  to  restrain 
the  publication  of  a  slander  or  libel,  no  matter  how  injurious 
it  might  be  to  the  complainant.^  Since  the  passage  of  the  Judi- 
cature Act,  however,  such  injunctions  have  been  granted  there 
in  order  to  protect  rights  of  property'.* 


24  Ware  v.  Grand  J.  W.  W.  Co., 
2  Russ.  &  M.  470;  Stockton  &  H. 
Ry.  Co.  V.  Leeds  &  Th.  Ry.  Co.,  2 
Phil.  666;  Heathcote  v.  N.  S.  Ry. 
Co.,  2  Mac.  &  G.  100. 

25  Story  v.  J.  C.  &  B.  P.  P.  R. 
Co.,  1  C.  E.  Green  (16  N.  J.  Eq.), 
1.3,  84  Am.  Dec.  1.34. 

26  Pullman  P.  C.  Co.  v.  Texas  & 
Pac.  Ry.  Co.,  11  Fed.  62.5;  s.  C,  4 
Woods,  317;  Foil's  Appeal,  91  Pa. 
St.  434,  438,  36  Am.  Rep.  671.  But 
see  Edison  El.  Lt.  Co.  v.  Sangerman 
El.  Co.,  C.  C.  A.,  53  Fed.  592;  suimi, 
§  277. 

27  Bryant  v.  W,  U.  Tel.  Co.,  17 
Fed.  825;  Blake  v.  Greenwood  Cem., 
14  Blatchf.  342;  Denehey  v.  Harris- 
burg,  2  Pearson  (Pa.),  330,  334. 

28  U.  S.  R.  S.,  §  723 ;  High,  In- 
junctions, §  28. 

29  U.  S.  R.  S.,  §  5242. 

SO  Teller  v.  V.  S.,  C.  C.  A..  113 
Fed.  463. 


§  284a.  1  Prudential  Assur.  Co. 
V.  Knott,  L.  R.  Ch.  142;  Clark  v. 
Freeman,  11  Beav.  112.  See  also 
Brandreth  v.  Lance,  8  Paige  (N. 
Y.),  24,  34  Am.  Dec.  368;  Mauger 
V.  Dick,  55  How.  Pr.  (N.  Y.)  132; 
Singer  Mfg.  Co.  v.  Domestic  S.  M. 
Co.,  49  Ga.  70,  15  Am.  Rep.  674; 
Boston  D.  Co.  v  Florence  Mfg.  Co., 
114  Mass.  69.  19  Am.  Rep.  310; 
Whitehead  v.  Kitson,  119  Mass.  484; 
Smith  V.  Hutchinson  S.  B.  Co.,  110 
Mo.  492,  16  L.R.A.  243,  33  Am.  St. 
Rep.  476. 

2  Thorley  's  C.  F.  Co.  v.  Massani, 
L.  R.  6  Ch.  D.  582;  Saxhy  v.  Easter- 
brook,  L.  R.  3  C.  P.  D.  339;  Wren 
V.  Weild,  L.  R.  4  Q.  B.  730.  See  al- 
so Grand  Rapiils  S.  F.  Co.  v.  Haney 
S.  F.  Co.,  92  Mich.  558,  16  L.R.A. 
721,  31  Am.  St.  Rep.  611,  s.  c,  52 
N.  W.  1009.  Contra,  Marlin  Fire 
Arms  Co.  v.  Shields,  171  N.  Y.  384, 
59  L.R.A.  310;   Boston  Diatite  Co. 


1422 


INJUNCTIONS 


[§284a 


The  Federal  courts  have  no  power  to  restrain  slanders  or 
libels  except  in  extraordinary  cases  ^  to  protect  property.* 

When,  however,  a  litigant  is  subject  to  the  jurisdiction  of  a 
court,  it  may,  by  a  motion  in  a  suit  *  to  which  he  is  a  party  re- 
strain him  from  improper  statements  concerning  the  order  or 
decree,  by  misrepresentations,  direct  or  indirect,  concerning  its 
eflPect,  for  such  conduct  might  be  held  to  be  a  contempt  of 
court.^  When  the  injunction  against  infringement  had  been 
suspended  pending  an  appeal  upon  the  filing  of  a  bond  by  de- 
fendants to  cover  profits  and  damages,  the  complainant  was  re- 
strained from  sending  circulars  to  their  customers  warning 
against  purchases  of  their  goods.'''  The  issue  of  a  false  re- 
port may  be  a  reason  for  dissolving  an  injunction  against  the 
infringement  of  a  patent.'  A  dissolution  was  threatened  in  case 
the  complainant  advertised  in  any  manner  a  decree  restraining 


V.  Florence,  etc.,  Co.,  114  Mass.  69, 
19  Am.  Rep.  310.  See  Harv.  Law 
Eeview,  XVI,  67. 

3  Francis  v.  Flynn,  118  IT.  S.  385, 
30  L.  ed.  165;  Kidd  v.  Horry,  28 
Fed.  773,  U.  S.  C.  C,  E.  D.  Pa.,  by 
Bradley  and  McKennan,  JJ. ;  Balti- 
more C.  W.  Co.  V.  Bemis,  29  Fed. 
95,  U.  S.  C.  C,  D.  Mass.,  by  Colt  and 
Carpenter,  JJ.;  Kelley  v.  Ypsilanti, 
D.  S.  M.  Co.,  10  L.E.A.  686,  44  Fed. 
19,  23;  Fougeres  v.  Murbarger,  44 
Fed.  292,  U.  S.  C.  C,  D.  Indiana,  by 
Woods,  J.;  International  T.  C.  Co. 
V.  Carmichael,  44  Fed.  350,  351,  U. 
S.  C.  C,  E.  D.  Wis.,  by  Jenkins,  J.; 
Davison  v.  National  Harrow  Co., 
103  Fed.  360,  N.  D.  N.  Y.;  Edison 
V.  Thomas  A.  Edison,  Jr.,  Chemical 
Co.,  128  Fed.  957;  Am.  Malting  Co. 
V.  Kittle,  C.  C.  A.,  209  Fed.  351; 
Willis  V.  O'Connor,  237  Fed.  1004. 
The  Missouri  rule  seems  to  be  that 
after  a  verdict  for  damages  of  a 
libel  the  court  in  the  same  case  upon 
another  court  may  enjoin  subsequent 
publication  thereof,  provided  at 
least  that  the  defendant  is  insol- 
vent. Flint  V.  Hutchinson  Smoke 
Burner  Co.,  110  Mo.,  loc.  cit.,  500, 
19  S.  W.,  804,  16  L.R.A.,   243,  33 


Am.  St.  Rep.,  476;  Life  Ass 'n  v. 
Boogher,  3  Mo.  App.  173;  Wolf  v. 
Harris,  (March,  1916,  184  S.  W., 
1138). 

4Ide  V.  Ball  Engine  Co.,  31 
Fed.  901,  U.  S.  C.  C,  S.  D.  Illinois, 
by  Allen,  J.;  Emack  v.  Kane,  34 
Fed.  46;  U.  S.  C.  C,  N.  D.  Illinois, 
by  Blodgett,  J.;  Home  Ins.  Co.  v. 
Nobles,  63  Fed.  642.  Cf.  Palmer  v. 
Travers,  20  Fed.  501,  U.  S.  C.  C, 
S.  D.  N.  Y.,  by  Wheeler  J.;  Cellu- 
loid Mfg.  Co.  V.  Goodyear  D.  V. 
Co.,  13  Blatchf.  375,  U.  S.  C.  C, 
S.  D.  N.  Y.,  by  Hunt,  J.;  Lewin  v. 
Welsbach  Light  Co.,  81  Fed.  904,  E. 
D.  Pa.;  A.  B.  Farquhar  Co.  v.  Na- 
tional Harrow  Co.,  C.  C.  A.,  Third 
Circuit,  49  L.R.A.  755,  102  Fed.  714. 
See  Shoemaker  v.  South,  etc.  Co., 
135  Ind.  471,  22  L.R.A.  332. 

5  Asbestos  Shingle,  Slate  & 
Sheathing  Co.  v.  H.  W.  Johns-Man- 
ville  &  Co.,   189  Fed.  611. 

8  RoUman  Mfg.  Co.  v.  Universal 
Hardware  Works,  C.  0.  A.,  229  Fed. 
579.  But  see  Hobbs  Mfg.  Co.  v. 
Gooding,  C.  C.  A.,  113  Fed.  615. 

7  Freeman-Sweet  Co.  v.  Lumin- 
ous Unit  Co.,  C.  C.  A.,  253  Fed.  958. 

8  Meyers  v.  Skisner,  186  Fed.  347. 


§  284a] 


AGAINST    SLANDERS    AND    LIBELS 


1423 


unfair  competition  where  it  appeared  that  the  defendant  luul 
acted  in  good  faith.*  An  injunction  was  denied  when  sought 
to  prevent  a  defendant  from  advertising  that  a  patent  was  void, 
and  it  appeared  that  he  honestly  believed  it  to  be  soj^"  and  pub- 
lished the  statement  for  the  sole  purpose  of  protecting  what  he 
believed  to  be  his  rights,^^  but  after  tiie  decree  adjudging  that 
a  patent  was  void,  the  patentee  was  enjoined  from  tlircatening 
complainant's  customers  with  suits  for  an  infringement  tiicreof.^^ 
Where  the  decree  adjudging  his  patent  void  was  made  in  an- 
other circuit  the  defendant  was  not  enjoined  from  making  sucii 
threats.^^  A  patentee  was  enjoined  from  continuing  similar 
threats,  which  it  had  made  for  two  years,  without  beginning  a 
suit  for  an  infringement ;  ^*  and  an  injunction  was  granted 
against  a  trade  circular,  issued  by  the  defendant  to  a  pending 
suit  for  infringement,  which  asserted  that  its  device  was  not 
an  infringement,  that  complainant's  patent  was  invalid,  and 
contained  cuts  of  prior  devices  which  it  claimed  anticipated 
such  patent.^^ 

Where  the  defendant  has  been  in  plaintiff's  employ  his  trust 
relation  may  be  a  reason  for  enjoining  him  from  threatening 
plaintiff's  customers.^^  Attempts  orally  or  in  writing  to  induce 
plaintiff's  customers  or  employees  to  l)reak  their  contracts  with 
him,  although  slanderous  and  libelous,  may  be  enjoined. ^^  An 
injunction  may  issue  against  the  publication  and  circulation  of 
posters  and  handbills  in  aid  of  an  unlawful  Ijoycotl,^^  and  of 
threats  to  commit  an  unlawful  act.^* 


9  Champion  Spark  Plug  Co.  \.  L. 
RTTlosley,  233  Fed.  112,  118.  But 
see  Eollman  Mfg.  Co.  v.  Universal 
Hardware  Works,  229  Fed.  579. 

lOHalsey  v.  Brotherhood,  45  L.  T. 
(N.S.)  640;  Celluloid  Mfg.  Co.  v. 
Goodyear  D.  V.  Co.,  13  Blatchf. 
375;  Pentlarge  v.  Pentlarge,  11 
Repr.  579;  N.  F.  Filter  Co.  v. 
Schwartzwalder,  58  Fed.  577. 

U  Ibid. 

12  Rubber  Tire  Wheel  Co.  v,  Good- 
year Tire  &  Rubber  Co.,  C.  C  A., 
183  Fed.  978. 

13  Clip.  Box  Mfg.  Co.  V,  Steel  Pro- 
tective Concrete  Co.,  209  Fed.  74. 


14  Electric  Eenovater  Mfg.  Co.  v. 
Vacuum  Cleaner  Co.,  189  Fed.  754. 

15  LovellMcConnell  Mfg.  Co.  v. 
Automobile  S.  Mfg.  Co.,  193  Fi;.!. 
658. 

16  Baker  &  Bennet  Co.  v.  John  C. 
Dettra  &  Co.,  406  Fed.  251. 

17  Am.  Malting  Co.  v.  Kittle,  C. 
C.  A.,  209  Fed.  351,  s.  c,  217  Fed. 
672. 

18  Casey  v.  Cincinnati  Typ.  Union 
No.  3,  12  L.R.A.  193,  45  Fed.  135; 
Cocur  d'Alene  Con.s.  &  Min.  Co.  v. 
Miners'  Union,  19  L.R.A.  382,  51 
Fed.  260  ;  High,  Injunctions,  $  1415a. 

19  Continental  Ins.  Co.  v.  Board 
of  Fire   Underwriters,  67  Fed.  310. 


1424 


INJUNCTIONS 


[§285 


§  285.  Distinction  between  the  judicial  writ  and  the  writ 
remedial.  Injunctions  were  formerly  either  judicial  writs  or 
writs  remedial.  A  judicial  writ  was  a  direction  to  yield  up,  to 
quiet,  or  to  continue  the  possession  of  lands,  and  is  said  to  be 
in  the  nature  of  a  writ  of  execution.^  It  was  issued  in  aid  of, 
and  only  after  a  final  decree  in  equity;  and,  in  extraordinary 
circumstances,  in  aid  of  a  judgment  at  law.^  Under  the  equity 
rules,  however,  it  is  never  necessary ;  and  it  had  previously 
fallen  into  disuse  in  England.  All  other  injunctions  are  writs 
remedial. 

§  286.  Distinction  between  mandatory  and  prohibitory  in- 
junctions. Injunctions  are  either  mandatory  or  prohibitory. 
A  mandatory  injunction  is  one  that  commands  a  defendant  to 
perform  a  certain  act  or  acts ;  a  prohibitory  injunction,  one  that 
forbids  a  defendant's  doing  a  certain  act  or  acts. 

Mandatory  are  far  less  common  than  are  prohibitoiy  injunc- 
tions. They  are  usually  issued  to  compel  a  restoration  of  the 
status  quo. 

Those  most  frequently  issued  have  been  such  as  commanded 
a  defendant  to  abate  a  nuisance,^  or  to  deliver  the  possession  of 
land,^  or  to  make  restitution  after  a  reversal  by  a  court  of  re- 
view.3  They  have  been  granted  to  compel  the  return  of  letters 
and  other  documents,*  the  deliverj^  of  personal  property  whose 
loss  could  not  be  compensated  in  damages,^  the  giving  of  eol- 


§  285.  1  Eden  on  Injunctions, 
clis.  i  and  xvii,  pp.  1,  2,  261,  262; 
Beamers'  Orders,  8,  16. 

2Boult  V.  Blunt,  Gary,  72;  Eden 
on  Injunctions,  262. 
•  §  286.  1  Gaines  v.  Baltimore  & 
G.  S.  S.  Go.,  234  Ted.  786;  Lane 
V.  Newdigate,  10  Ves.  192;  Robin- 
son V.  Lord  Byron,  1  Bro.  G.  G.  588 ; 
Hervey  v.  Smith,  1  K.  &  J.  389; 
Rankin  v.  Huskisson,  4  Sim.  13; 
Bickett  V.  Morris,  L.  R.  1  H.  L. 
Sc.  47;  Gole  S.  M.  Go.  v.  Virginia 
&  G.  H.  W.  Go.,  1  Saw.  470. 

2  Hepburn  v.  Auld,  5  Granch,  262, 
3  L.  ed.  96 ;  Hepburn  v.  Dunlop,  1 
Wheat.  179,  4  L.  ed.  65;  Eindlay 
V.  Hinde,  1  Pet.  241,  7  L.  ed.  128; 


Pokegama  S.  P.  L.  Go.  v.  Klanioth 
R.  L.  &  L  Go.,  86  Fed.  528. 

3  U.  S.  Bank  v.  Washington  Bank, 
6  Petin  8,  8  L.  ed.  299;  Haebler 
V.  Myers,  132  N.  Y.  363;  Morris 
V.  Cotton,  8  Wall.  507.  Ex  parte, 
Morris,  9  Wall.  605,  79  L.  ed.  799; 
N.  W.  Euel  Go.  v.  Brock,  139  U.  S. 
216,  11  Sup.  Ct.  523,  35  L.  ed.  151. 

4  Evitt  V.  Price,  1  Sim.  483 ;  Seton 
on  Decrees  (4th  ed.),  179.  See  also 
Glarke  v.  White,  12  Pet.  178,  9  L. 
ed.  1046.     - 

5  Pusey  v.  Pusey,  1  Vern.  273; 
Duke  of  Somerset  V.  Gookson,  3  P. 
Wms.  389;  Greatrex  v.  Greatrex,  1 
De  G.  &  Sm.  692 ;  McGowin  v.  Rem- 
ington, 12  Pa.  St.  56,  51   Am.  Dec. 


§  286 


.\I  AMI  \'l'<)|{\'     IN. I  1    NC  I  |(  INS 


1425 


latei-al  security  in  ohedieiiee  to  a  (•oiitract,^  the  making  of  a 
policy  of  insurance,"''  the  stopping  of  the  receipt  of  freight  l>y  a 
railroad  company  at  a  particular  place,^  the  performance  of  a 
contract  by  one  railroad  company  to  allow  a  telephone  com- 
pany the  use  of  its  right  of  way,^  to  send  freiglit  over  the  lines 
of  another  railroad,^"  the  receipt  of  freight  cars  and  passengers 
from  one  railroad  company  by  another,  and  the  transportation 
of  the  same,"  the  furnishing  of  eipial  facilities  by  a  raili-oad  com- 
pany to  another  railroad  company, ^^  ,,,.  |,,  y  shij>pei.^^  and  tlic 
I'escission  of  an  oi-der  for  the  boycott  of  a  railway  c(imi)any,^* 
and  to  enjoin  a  reduction  of  charges  for  the  transportation  of 
freight  and  passengers,  wliidi  deprived  the  complainant  of  its 
prop(>rty  Avithout  due  compensation.^^ 

It  has  been  said  that  they  may  always  lie  issued  to  compel  the 
performance  of  an  act  which  could  be  enforced  by  one  of  the  ex- 


r)84;  Dinsnioie  v.  L.  C.  &  L.  Ry. 
Ca,  2  Fed.  465;  Dinsmore  v.  L.,  N. 
A.  &  C.  R.  Co.,  ?,  Fed.  59;',;  Coe  v. 
L.  &  N.  R.  Co.,  .",  Fed.  775;  Onnsliy 
V.  TTiiion  I'ac.  R.  Co.,  4  Fed.  700; 
Texas  Exp.  Co.  v.  Texas  &  V.  Ry. 
Co.,  6  Fed.  426;  Chicago  &  A.  Ry. 
Co.  V.  N.  Y.,  L.  E.  &  W.  R.  Co.,  34 
Fed.  516;  C.  S.  M.  Co.  v.  V.  &  G. 
H.  W.  Co.,  1  Saw.  685;  Chieago,  B. 
&  Q.  Ry.  Co.  V.  Builijigton,  C.  R.  i: 
N.  Ry.  Co.,  34  Fed.  481;  Soiitlieni 
Pac.  R.  Co.  V.  City  of  Oakland,  58 
Fed  50;  In  re  Leiinon,  166  U.  S. 
548,  41  L.  ed.  1110;  Pokegama  S. 
P.  L.  Co.  V.  Klanioth  R.  L.  &  I.  Ry. 
Co.,  86  Fed.  528;  Fairfield  Floral 
Co.  V.  Bradlniry,  87  Fed.  415;  Mot- 
ley V.  Southern  Ry.  Co.,  184  Fed. 
956,  stock  in  a  corporation;  Higli  on 
Injunctions  (4th  ed.),  §§  2,  5a,  3, 
708,  &<'.  See  Mandatory  Iiijunc-i 
tions,  by  Judge  Jacob  Klein,  12 
Harv.  Law.  Rev.  95. 

6  Robin.son    v.   Cathcart,   2   Cranch 
C.  C.  590. 

7  l^uion  M.  Ills.  Co.  v.  Coinmen'ial 
Mut.  M.  Ins.  Co.,  2  Curt.  524. 

8  Coe   V.    I.ouisxilh-  &  X.    R.  Co.,  :! 


Fed.   775;    McCoy   v.   Cincinnati,    I., 
St.  L.  &  C.  R.  Co.,  13  Fed.  :'.. 

9  Western  I'nioii  Telegraph  Co.  v. 
Postal  Telegraph  Co.,  C.  C.  A.,  217 
Fod.  533. 

10  Chicago  &  A.  Ry.  Co.  v.  N.  Y., 
L.  E.  &  W.  R.  Co.,  34  Fed.  516. 

11  Chicago,  B.  &  Q.  Ry.  Co.  v.  Bur- 
lington, C.  R.  &  N.  Ry.  Co.,  34  Fed. 
481 ;  Toledo,  A.  A.  &  N.  M.  R.  Co. 
V.  Pennsylvania  Co.,  19  L.B..V.  .'.87, 
5  Inters.  Com.  Rep.  522,  54  Fed. 
7;;(i;  111  10  Lennoii,  166  U.  S.,o4S, 
41  L.  ed.  1110. 

12  Ibid. 

13  Butchers  &  D.  St.  Co.  v.  Louis 
ville,  S.  &  N.  R.  Co.,  C.  C.  A.,  67 
Fed.  35;  Wells,  F.  &  Co.  v.  X.  Pac 
Ry.  Co.,  23  Fed.  469. 

14  Chicago,  B.  &  Q.  Ry.  Co.  v. 
Burlington,  C.  R.  X.  Ry.  Co.,  34 
Fed.  481  ;  Toledo,  A.  A.  &  X.  M.  R. 
Co.  v.  Pennsylvania  Co.,  54  Fed. 
730;  In  re  Lennon,  116  V.  S.  548, 
41  L.  ed.  1110.  See  So.  Cal.  Ry. 
Co.  V.  Rutherford,  62  Fe.l.  796. 

15  Love  V.  Atchison,  T.  &  S.  F.  Ry. 
Co.,  C.  C.  A.,  185  Fed.  321. 


1426 


INJUNCTIONS 


[§287 


traordinary  writs  at  common  law,  were  it  not  for  some  technical 

difficulty.  16 

In  a  case  involving  the  constitutionality  of  certain  Kentucky 
statutes,  the  court  refused  a  mandatory  injunction  compelling 
a  distribution  of  the  money  raised  by  a  tax  upon  white  people 
partly  among  public  schools  for  colored  children,  in  the  absence 
of  any  contract  right  or  legislative  authority  for  such  a  distri- 
bution; but  granted  "a  decree  enjoining  and  restraining  the 
proper  parti&s  from  applying  to  the  use  of  the  schools  organized 
for  and  at  which  white  children  only  are  allowed  to  attend,  one- 
fourth  of  the  money  heretofore,  or  which  may  be  hereafter,  col- 
lected under  the  authority  of  the  Act  of  1871  and  its  amend- 
ments. ' '  1^  Mandatory  injunctions  are  usually  issued  in  a  nega- 
tive form,  restraining  a  defendant  from  desisting  or  refusing  to 
do  an  act."  They  are  rarely  granted  upon  interlocutory  mo- 
tions,!^  except  to  preserve  the  status  quo. 

§  287.  Distinction  between  provisional  and  perpetual  injunc- 
tions. Provisional,  also  called  preliminary  or  interlocutory, 
injunctions  are  such  as  are  to  continue  until  a  certain  time 
usually  specified  therein;  for  example,  until  the  coming  in  of 
the  defendant's  answer,  the  hearing  of  the  cause,  the  master's 


16  Stevens  v.  Ohio  State  Tel.  Co., 
240  Fed.  759,  766,  769.  But  see 
§287. 

17  Barr,  J.,  in  Claybrook  v.  Owens- 
boro,  23  Fed.  634,  636. 

18  Southern  Exp.  Co.  v.  St.  Louis, 
I.  M.  &  S.  Ey.  Co.,  10  Fed.  210, 
869;  Smith  v.  Smith,  L.  E.  20  Eq. 
500,  504;  Cole  S.  M.  Co.  v.  Virginia 
&  G.  H.  W.  Co.,  1  Saw.  470. 

19Denvei-  &  N.  O.  E.  Co.  v.  At- 
chison, T.  &  S.  F.  E.  Co.,  13  Fed. 
546;  MeCauley  v  Kellogg,  2  Woods 
13 ;  Camblos  v.  Phil.  &  E.  E.  Co.,  9 
Phila.  (Pa.)  411;  s.  c,  4  Brews. 
(Pa.)  563;  Eogers  L.  Works  v.  Erie 
Ey.  Co.,  5  C.  E.  Green  (20  N.  J. 
Eq.),  379;  Miles  v.  Johnston,  59 
Fed.  38;  Am.  Lead  Pencil  Co.  v. 
Schneegass,  178  Fed.  735;  Winton 
Motor  Carriage  Co.  v.  Curtis  Pub. 
Co.,   196  Fed.   906.     But  see  Bach- 


man  V.  Harrington,  184  N.  Y.  458, 
infra,   §  291.      But   see   Dinsmore  v. 
L.    C.    &   L.    Ey.   Co.,   2    Fed.    465; 
Dinsmore  v.  L.,  N.  A.  &  C.  E.  Co., 
3  Fed.  593 ;  Coe  v.  L.  &  N.  E.  Co.,  3 
Fed.  775 ;  Ormsby  v.  Union  Pac.  E. 
Co.,  4  Fed.  706;   Texas  Exp.  Co.  v. 
Texas  &   P.    Ey.    Co.,    6   Fed.   426; 
Chicago  &  A.  Ey.  Co.  v.  N.  Y.  L. 
E.  &  W.  E.  Co.,  34  Fed.  516;  C.  S. 
M.  Co.  V.  V.  &  G.  H.  W.  Co.,  1  Saw. 
685;    Chicago,   B.   &   Q.   Ey.   Co.   v. 
Burlington,  C.  E.  &  N.  Ey.  Co.,  34 
Fed.   481;    Southern  Pac.   E.   Co.   v. 
City  of  Oakland,  58  Fed.  50;  In  re 
Lennon,   166   U.   S.    548,   41   L.   ed. 
1110;    Pokegama    S.    P.    L.    Co.    v. 
Klamoth  E.  L.  &  I.  Ey.  Co.,  86  Fed. 
528;    Fairfield   Floral   Co.   v.    Brad- 
bury, 87  Fed.  415.     See  Mandatory 
Injunctions,  by  Judge  Jacob  Klein, 
12  Harv.  Law.  Eev.  95. 


§288] 


COMMON    AND   SPECIAL    INJUNCTIONS 


1427 


report,  or  tlie  furtlier  order  of  the  court.^  Perpetual,  also  called 
final,  injunctions  are  those  which,  as  their  name  denotes,  per- 
petually restrain  the  defendant  from  the  same  act  or  acts. 
Provisional  injunctions  may  be  granted  at  any  time  during  the 
progress  of  a  suit.  Perpetual  injunctions  can  never  be  granted 
except  at  the  time  of  the  entry  of  the  decree.^  The  setting  up 
of  outstanding  terms  can,  it  lias  been  said,  only  be  restrained 
by  a  perpetual  injunction.'  ^Mandatory  injunctions  also  will 
very  rarely  be  granted  before  a  decree,*  except  to  maintain  the 
status  quo.^ 

"It  is  a  rule  of  practice  in  the  Circuit  Courts  of  the  United 
States  not  to  allow  an  injunction  to  stay  an  ejectment  suit  until 
it  can  be  investigated  in  equity,  unless  a  judgment  be  entered 
therein.  "6 

§  288,  Distinction  between  common  and  special  injunctions. 
Injunctions  were  formerly  of  two  kinds,  common  and  special. 
Common  injunctions  were  granted,  as  of  course,  upon  the  de- 
fendant's default  either  in  appearing  or  answering,  and  were 
only  applicable  to  restrain  proceedings  at  common  law.^  Special 
injunctions  were  those  granted,  not  as  a  matter  of  course,  but 
upon  the  special  circumstances  of  the  case  as  disclosed  by  the 
answer  of  the  defendant  or  upon  affidavits.^  Common  injunc- 
tions have  been  abolished  by  the  Revised  Statutes.'  The  learn- 
ing upon  the  subject,  which  is  very  technical,  seems  now,  there- 
fore, useless,  and  will  not  be  repeated  here.* 


§287.  IDaniell's  Ch.  Pr.  (2a 
Am.  ed.)  1810;  High,  Injunctions, 
§  .3;  Eden,  Injunctions,  ch.  xv. 

ZDaniell's  Oh.  Pr.  (2d  Am.  ed.) 
1903;  Adams  v.  Crittenden,  17  Fed. 
42. 

SHylton  v.  Morgan,  6  Ves.  293; 
Byrne  v.  Byrne,  2  Sch.  &  Lef.  537; 
Barney  v.  Luekett,  1  Sim.  &  S.  419; 
Northey  v.  Pearce,  1  Sim.  &  S.  420. 

4  Gambles  v.  Phila.  &  K.  K.  Co., 
9  Phila.  (Pa.)  411;  s.  c,  4  Brewst. 
(Pa.)  563;  Rogers  L.  M.  Works  v. 
Erie  Ry.  Co.,  5  C.  E.  Green  (N.  J.), 
379.  But  see  Dinsmore  v.  L.,  C.  & 
L.   Ry.   Co.,  2  Fed.   465;    Coe   v.   L. 


&  N.  R.  Co.,  3  Fed.  775,  and  other 
eases  cited  under  §  225. 

6  Gaines  v.  Baltimore  &  C.  S.  S. 
Co.,  234  Fed.  786. 

6  Billings,  J.,  in  Heirs  of  Szy- 
wauski  V.  Zunts,  20  Fed.  361,  363, 
citing  Turner  v.  Am.  B.  M.  Union, 
5  McLean,  344. 

§288.  IDaniell's  Cb.  Pr.  (2d 
Am.  ed.)   1877. 

ZDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1833. 

3  Perry  v.  Parker,  1  W.  &  M.  280 ; 
Lawrence  v.  Bowman,  1  McAll.  419. 

4  See  Daniell's  Ch.  Pr.  (2d  Am. 
ed.)    1811-1833. 


1428 


INJUNCTIONS 


[§289 


§  289.  Time  and  place  of  applications  for  interlocutory  in- 
junctions. An  iiijiuictioii  may  be  obtained,  at  any  time,  as 
well  in  vacation  as  in  term,  and  whether  the  court  be  sitting  or 
not,  at  any  place  wnthin  which  the  judge  granting  it  has  juris- 
diction and  at  almost  any  stage  of  the  cause.^  "But  no  justice 
of  the  Supreme  Court  shall  hear  or  allow  any  application  for  au 
injunction  or  restraining  order  in  any  cause  pending  in  the 
circuit  to  which  he  is  alloted,  elsewhere  than  within  such  circuit, 
or  at  such  place  outside  of  the  same  as  the  parties  may  stipulate 
in  writing,  except  when  it  cannot  be  heard  by  the  district  judge 
of  the  district."  ^  in  England  it  has  'been  held,  that,  in  a  very 
extraordinary  case,  an  injunction  may  be  granted  upon  peti- 
tion before  the  filing  of  a  bill  or  the  service  of  a  subpcena.^  In 
a  court  of  the  United  States  an  injunction  has  been  issued  upon 
the  filing  of  the  bill  and  before  service  of  the  subpoena ;  *  and 
a  restraining  order  was  granted  upon  the  presentment  of  a  bill 
to  the  court  before  its  filing,  when  a  notice  of  an  application 
for  leave  to  file  the  same  had  previously  been  given  to  the  de- 
fendants.^ 

It  has  been  held  that  a  non-resident  defendant  who  cannot 
be  served  with  process  may  be  enjoined  from  infringing  a  patent 
within  the  district.^  

An  injunction  will  ordinarily  be  refused  while  a  demurrer  or 
plea  to  the  bill  is  pending.''  But  in  cases  of  emergency,  the 
court  may  order  the  sufficiency  of  such  a  pleading  to  be  argued 
before  the  regular  time  for  such  a  proceeding,  together  with 
tlie  motion  for  the  injunction ;  ^  or  even  grant  a  restraining  order 
without  waiting  for  the  argument.^     Should  a  motion  be  heard 


§289.  IDaniell's  Ch.  Pr.  (.5tli 
Am.  ed.)  166.3;  Kerr  on  Injunctions, 
543,  545;  Bacon  v.  Jones,  4  Myl.  & 
Cr.  433. 

2Jud.  Code,  §264,  36  St.  at  L. 
1087. 

3  Mayor  of  London  v.  Bolt,  5  Ves. 
129. 

4  Sehernierliorn  v.  L  'Espenasse,  2 
Dall.  360,  1  L.  ed.  415. 

5  St.  Louis  &  S.  F.  E.  Co.  v.  Had- 
ley,  155  Fed.  220.  Cf.  V.  S.  E.  S., 
§  718 ;  infra,  §  291. 


6  Kennedy  v.  Penn.  I.  &  Coal.  Co., 
67  Fed.  339. 

7  Cousins  V.  Smith,  13  Ves.  164; 
Ketehum  v.  Driggs,  6  McLean,  13. 

8  Anon.  v.  Bridgewatcr  C.  Co.,  9 
Sim.  378;  Daniell's  Ch.  Pr.  (5th 
Am.  ed.)   1671. 

9  Frowd  V.  Lawrence,  1  J.  &  "W. 
Maltby  v.  Bobo,  14  Blatchf.  53; 
Fremont  v.  Merced  M.  Co.,  1  McAll. 
267. 


§290]  ix.irxcTKtN.s  mit  i-riWED  Ffnj  IN  mix  1120 

while  a  demurrer  is  oii  the  file  and  undisposed  of,  it  seems  that 
upon  the  hearing  of  the  motion  the  allegations  in  the  bill  will 
be  considered  as  admitted. i°  An  ap])lication  for  an  injunction 
has  been-  refused  because  the  bill  ha<l  been  referred  for  scan- 
dal.^^  An  application  for  an  injunction,  which  has  been  de- 
nied, or  may  be  renewed  by  leave  of  the  court ;  but  leave  to 
renew  will  rarely  be  granted  except  upon  new  affidavits  and  in 
a  clear  ease.^^ 

§290.  Injunctions  not  prayed  for  in  the  bill.  The  English 
rule  was  that  an  injunction  would  not  issue  against  a  i)crson 
not  made  a  i)arty  to  a  bill  specifically  praying  an  injunction 
against  him  :  ^  and  the  injunction  had  to  Ije  prayed  for  not  only 
in  the  prayer  for  relief,  but  also  in  the  prayer  for  process.^  To 
this,  however,  there  were  four  exceptional  classes  of  cases.  If 
the  court  had  by  its  decree  taken  the  distribution  or  control  of 
property  into  its  own  hands,  it  would  prevent  injury  thereto 
either  by  the  pai'ties  litigant  or  others,  although  no  injunction 
had  been  prayed  in  the  bill.^  Thus,  in  a  foreclosure  suit,  it 
would  restrain  waste  by  the  mortgagor  after  a  decree  for  an 
account ;  *  and  after  a  decree  for  the  administration  of  the  as- 
sets of  a  dead  man.  it  would  enjoin  a  creditor  not  a  party  to  the 
suit  from  proceeding  at  law  against  the  estate  of  the  testator  or 
intestate  to  satisfy  his  individual  claim,  provided  that  the  execu- 
tor made  an  affidavit  stating  what  assets  he  had  in  his  hands,  or 
had  previously  admitted  their  amount.^  If  the  suit  were  brought 
by  a  legatee,  such  a  statement  or  admission  was  not  indispensa- 
ble.^ Secondly,  an  injunction  was  granted  without  a  bill  being 
filed,  for  the  express  purpose  of  preventing  a  plaintiff  from  suing 
both  at  law  and  in  equity  at  the  same  time  and  for  the  same 
matter,  and  to  compel  him  to  make  an  election.'     Thirdly,  an 

lOBaypiqiio  v.  Cohen,  McAll.  113.  4  Wriglit    v.    Atkyns,    1    V.    &    B. 

11  Davenport      v.      Davenport,      fi       81.S. 

Madd.  251.  6  Daniell '^i  Cli.  Pr.   (oth  Am.  cd.) 

12  Louisville  &  X.  R.  Co.  v.  Ken-  Ifil?:  Paxton  v.  Douglas,  8  Ves. 
tut'ky  R.  R.  Commission,  214  Fed.  520;  Thompson  v.  Brown,  4  J.  Ch. 
465.  (X.  Y.)  619. 

§290.     IDaniell's    Ch.    Pr.     (5tli  6  RatelifTe     v.     Winch,     16     Beav. 

Am.  ed.)   1614-1617.  576;    Daniell's    Cli.    Pr.     (5th    Am. 

ZW'ood  V.  Beadell,  3  Sim.  273.  ed.)    1617. 

3  Daniell's  Ch.  Pr.   (5th  Am.  ed.;  TRogers    v,    Voslnirgh,    4    .1.    Ch. 

1614.  (X.  Y.)    84. 

Fed.  Prae.  \'ul.  11—20 


1430 


INJUNCTIONS 


[§291 


injimction  could  always  be  obtained  to  compel  respect  and  en- 
force obedience  to  the  decrees  and  orders  of  the  court:  Thus, 
publications  which  were  disrespectful  to  the  court,  or  which  un- 
fairly reported  its  proceedings,  could  be  enjoined.^  So,  too,  an 
injunction  could  issue  to  restrain  an  action  at  law  to  recover 
damages  for  false  imprisonment  under  process  of  contempt  im- 
properly issued ;  *  to  compel  compliance  with  the  terms  and 
spirit  of  a  decree  by  one  who  had  bought  land  under  it ;  ^^  to 
compel  compliance  with  his  lease  by  the  tenant  of  a  receiver ; " 
and  to  prevent  an  unauthorized  action  against  a  receiver.^^  ^nd 
fourthly,  there  seems  to  be  a  class  of  cases  not  clearly  defined 
in  which  the  court  granted  an  injunction,  when  without  it  "the 
whole  object  of  the  proceedings  would  be  defeated,"  although  it 
was  not  prayed  for  in  the  bill.^® 

§  291.  Special  practice  of  the  Federal  courts  in  the  issue  of 
injunctions.     The  Equity  Rules  provide:  that  a  bill  in  equity 
shall  contain  "a  statement  of  any  prayer  for  any  special  relief 
pending  the  suit  or  on  final  hearing,  which  may  be  stated  and 
sought  in  alternative  forms.     If  special  relief  pending  the  suit 
be  desired  the  bill  should  be  verified  by  the  oath  of  the  plain- 
tiff, or  someone  having  knowledge  of  the  facts  upon  which  such 
relief  is  asked. ' '  ^     Where  a  District  Court  upon  an  affidavit 
of  defendant's  counsel  in  the   State  court,  issued  an  injunc- 
tion restraining  plaintiff  in  an  action  in  the  latter  court  from 
proceeding  in  such  court  it  was  held  that  such  issuance  was 
improper,   since   the  filing  of  a   properly  verified  bill   in   the 
Federal  court  is  a  necessary  condition  precedent  to  the  issu- 
ance of  an  in  junction. 2 

"No  preliminary  injunction  shall  be  granted  without  notice 
to  the  opposite  party.  Nor  shall  any  temporary  restraining 
order  be   granted  without  notice   to   the   opposite   party,   un- 


8  Anon.,  2  Ves.  Sen.  520;  Brook 
V.  Evans,  29  L.  J.  Ch.  61fi;  Cole- 
man V.  West  H.  Ey.  Co.,  8  W.  K. 
734;  Mackett  v.  Com'rs  of  Heme 
Bay,  24  W.  E.  845.  But  see  U.  S. 
E.  S.,  §  725 ;  Hobbs  Mfg.  Co.  v. 
Gooding,  C.  C.  A.,  113  Fed.  615. 

9  Prowd  V.  Lawrence,  1  J.  &  W. 
655;  Ex  parte  Clarke,  1  E.  &  M. 
563;  Daniell's  Ch.  Pr.  511. 


lOCasamajor  v.  Strode,  1  Sim.  & 
Stu.  381;  Kerr  on  Injunctions,  543. 

11  Walton  V.  Johnson,  15  Sim.  352. 

12  Angel  V.  Smith,  9  Ves.  335. 

13  Blomfield  v.  Eyre,  8  Beav.  250. 
See  Shainwald  v.  Lewis,  6  Fed.  766. 

§  291.     1  Eq.  Eule  25. 
2  Cathey  v.  Norfolk  &  W.  Ey.  Co., 
C.  C.  A.,  228  Fed.  26. 


§  291]  SPECIAL   PILVCTICE   IX    FEDERAL    COURTS  1431 

less  it  shall  clearly  appear  from  specific  facts,  shown  by  af- 
fidavit or  by  the  verified  bill,  that  immediate  and  irrepa- 
rable loss  or  damage  will  result  to  the  applicant  before  the 
matter  can  be  heard  on  notice.  In  case  a  temporary  restraining 
order  shall  be  granted  without  notice,  in  the  contingency  speci- 
fied, the  matter  shall  be  made  returnable  at  the  earliest  possible 
time,  and  in  no  event  later  than  ten  days  from  the  date  of  the 
order,  and  shall  take  precedence  of  all  matters,  except  older 
matters  of  the  same  character.  When  the  matter  comes  up  for 
hearing  the  party  who  obtained  the  temporary  restraining  order 
shall  proceed  with  his  application  for  a  preliminary  injunction, 
and  if  he  does  not  do  so  the  court  shall  dissolve  his  temporary 
restraining  order.  Upon  two  days  notice  to  tlie  party  obtaining 
such  temporary  restraining  order,  the  opposite  party  may  aj- 
pear  and  move  the  dissolution  or  modification  of  the  order,  and 
in  that  event  the  court  or  judge  shall  proceed  to  hear  and  deter- 
mine the  motion  as  expenditures  as  the  ends  of  justice  may  re- 
quire. Every  temporary  restraining  order  shall  be  forthwith 
filed  in  the  clerk's  office."  ^ 

The  practice  is  now  regulated  by  the  Clayton  Act  of  October 
15,  1914,  as  follows:  "No  preliminary  injunction  shall  be  is- 
.sued  without  notice  to  the  opposite  party.  No  temporary  re- 
straining order  shall  be  granted  without  notice  to  the  oppo- 
site party  unless  it  shall  clearly  api)ear  from  specific  facts 
shown  by  affidavit  or  the  verified  bill  that  innnediate  and  ir- 
reparable injury,  loss,  or  damage  will  residt  to  the  applicant 
before  notice  can  be  served  and  a  hearing  had  therein.  Every 
such  temporary  restraining  order  shall  be  indorsed  with  the 
date  and  hour  of  issuance  shall  be  forthwith  filed  in  the  clerk's 
office  and  entered  of  record,  shall  define  the  injury  and  state 
why  it  is  irreparable  and  why  the  order  was  granted  with- 
out notice,  and  shall  by  its  terms  expire  within  such  time  after 
entry,  not  to  exceed  ten  days,  as  the  court  or  judge  may  fix. 
unless  within  the  time  so  fixed  the  order  is  extended  for  a  like 
period  for  good  cause  shown,  and  the  reasons  for  such  exten- 
sion shall  be  entered  of  record.  In  case  a  temporary  restraining 
order  shall  be  granted  without  notice  in  the  contingency  specified 
the  matter  of  the  issuance  of  a  preliminary  injunction  shall  be 
set  down  for  a  hearing  at  the  earliest  possible  time  and  shall 

8Eq.  Rule  73. 


1482 


INJUNCTIONS 


§291 


take  precedence  of  all  matters  except  older  matters  of  the  same 
character;  and  when  the  same  comes  np  for  hearing  the  party 
obtainmg  the  temporary  restraining  order  shall  proceed  with  the 
application  for  a  preliminarj'  injunction  and  if  he  does  not  do  so 
the  court  shall  dissolve  the  temporary  restraining  order.  Upon 
two  days'  notice  to  the  party  obtaining  such  temporary  restrain- 
ing order  the  opposite  party  may  appear  and  move  the  dissolu- 
tion or  modification  of  the  order,  and  in  that  event  the  court  or 
judge  shall  proceed  to  hear  and  determine  the  motion  as  expedi- 
tiously as  the  ends  of  justice  may  require."* 

'^Exeei^t  as  otherwise  provided  in  section  sixteen  of  this  Act, 
no  restraining  order  or  interlocutory-  order  of  injunction  shall 
issue,  except  upon  the  giving  of  security  by  the  applicant  in  such 
sum  as  the  court  or  judge  may  deem  proper,  conditioned  upon 
the  payment  of  such  costs  and  damages  as  may  be  incurred  or 
suffered  by  any  part}-  who  may  be  found  to  have  been  wrongfully 
enjoined  or  restrained  thereb}'.  "^ 

"Everj-  order  of  injunction  or  restraining  order  shall  set  forth 
the  reasons  for  the  issuance  of  the  same,  shall  be  specific  in  terms, 
and  shall  describe  in  reasonable  detail,  and  not  by  reference  to 
the  bill  of  complaint  or  other  document,  the  act  or  acts  sought 
to  ])e  restrained,  and  shall  be  binding  only  upon  the  parties  to 
the  suit,  their  officers,  agents,  servants,  employees,  and  attor- 
neys, or  those  in  active  concert  or  participating  with  them,  and 
who  shall,  by  personal  service  or  othei-wise,  have  received  actual 
notice  of  the  same. "^  '  '  '    >;'  '    ' 

It  has  been  held :  that  such  a  restraining  order  may  be 
mandatory  and  require  affirmative  action;'''  but  the  usual  prae- 
tice  is  to  grant  mandatory  orders  only  to  preserve  the  status 


4  Act  of  Oct.  15,  1914,  eh.  32:5, 
§  17,  38  St.  at  L.  737,  Comp.  St., 
§  1243a,  repealing  Jud.  Code,  §  2(53, 
36  St.  at  L.  1087,  which  reuaeted 
TJ.  S.  K.  S.,  §  718.  See  Yuengliug 
V.  Johnson,  1  Hughes,  607 ;  C,  B. 
&  Q.  E.  Co.  V.  B.,  C.  E.  &  N.  Ey. 
Co.,  34  Fed.  481;  Payne  v.  Kansas 
&  A.  V.  R  Co.,  46  Fed.  546;  United 
Raih'oads  of  San  Francisco  v.  City 
and  County  of  San  Francisco  et  al., 


180  Fed.  948;  Thullen  v.  .Triiinipli 
Electric  Co.,  C.  C.  A.,  212  Fed.  143. 
For  a  ease  where  the  papers  were  in- 
sufficient, see  Mississippi  Valley  Tr. 
Co.  V.  Railway  Steel  Spring  Co., 
C.  C.  A.,  258  Fed.  346. 

5  Ibid.,  §  18,  Comp.  St.  §  1243b. 

6  Ibid.,  §  19,  Comp.   St.,   §  1243e. 

7  Pokegama  S.  R.  L.  Co.  v.  Kla- 
math R.  L.  &  I.  Co.,  86  Fed.  528. 
Cf.  supra,  S  286. 


§  292]  xoTicK  OF  Ai'pLic A  riux  }-^:v.i 

quo}  An  injunction  suspending  or  restraining  the  enforce- 
ment, operation,  or  execution  of  any  statute  of  a  State  or 
order  made  by  an  administrative  board  or  commission  created 
by  an  act  under  tlie  statutes  of  a  State,  or  restraining  the  action 
of  an  officer  of  a  State  in  Ihe  enforcement  or  execution  of  such 
statute  or  order,  cannot  be  issued  unless  the  application  for  th( 
same  as  presented  to  a  Justice  of  the  Supreme  Court  or  to  a  Cir- 
cuit or  District  Judge  and  is  heard  and  determined  by  tliree 
judges,  of  wliom  at  least  one  must  be  a  Justice  of  tlie  Supreme 
Court  or  a  Circuit  Judge,  and  a  majority  of  such  three  judges 
must  concur  in  the  grant  of  such  an  application.^  Tlic  cases  con- 
struing the  statute  are  previously  discussed. ^° 

The  practice  is  similar  \i])on  applications  for  injunctions  to  re- 
strain the  enforcements  of  orders  of  the  Interstate  Commerce 
Commis.sion  ^^  or  of  the  United  States  Shipping  Boai'd.^^  It  has 
been  held,  that  the  statute  forbids  a  single  judge  to  deny  a  mo- 
tion for  such  an  injunction  and  even  to  vacate  such  a  restraining 
order  previously  issued  by  himself.^^  r   ;• 

The  Act  of  September  7,  1916,  which  creates  the  United  States 
Shipping  Board  provides,  ''The  venue  and  procedure  in  the 
courts  of  the  United  States  in  suits  brought  to  enforce,  suspend, 
or  set  aside,  in  whole  or  in  part,  any  order  of  the  board  shall, 
except  as  herein  otherwise  provided,  be  the  same  as  in  similar 
suits  in  regard  to  orders  of  the  Interstate  Commerce  Commis- 
sion but  such  suits  may  also  be  maintained  in  any  district  court 
liaving  jurisdiction  of  the  parties."^*  The  statutory  provisions 
concerning  patent, ^^  copyright  ^^  and  ti-ademark  ^"  cases  are 
previously  (| noted. 

§  292.  Notice  of  application  for  interlocutory  injunction.  As 
a  general  rule,  notice  of  an  application  for  an  injunction  must 
always  be  given  to  the  ])orson  against  whom  the  injunction  is 

8  Cumberland    Telephone    &    Ti-le-  12  ::9    St.    at    L.    7;{7,    Vowy.    St. 

graph    Co.    v.    Railroad    Commission  .ii814oo. 
of  Louisiana,  156  Fed.  8;U.  "^Z  Ex    parte    Metropolitan    Water 

9Jud.    Code,    §266,   36    St.   at    I..  Co.,  220  Y.  S.  o:}9,  .5r,  L.  ed.  575. 
1087,    as   amended    by    Public    Law  U  Act    of    Sept.    7,    1916.    ch.    45. 

445,  62nd  Cong.,  Third  Sess.  §3,    39    St.    at    L.    737,    Comp.    St., 

10  See   S  105d,  .sH/;;«.  §814600.     • 

11  Act  of  Oct.  22,  1913,  fh.  32,  \h  Hupru.  SS  146,  277. 
38  St.  at  L.  220,  Comp.  St.,  §998,  16  §§  156,  278,  supra, 
supra.   §  inOb.  IV  S*)  148,  L'79,  supra. 


1434  INJUNCTIONS  [  §  292 

desired;  but  in  very  pressing  eases,  where  the  mischief  sought 
to  be  prevented  was  serious,  imminent,  and  irremediable,  or 
where  the  mere  act  of  giving  notice  to  the  defendant  of  the  in- 
tention to  make  the  application  might  have  been  of  itself  produc- 
tive of  the  mischief  apprehended,  by  inducing  him  to  accelerate 
the  act  in  order  that  it  might  be  complete  before  the  time  for 
making  the  application  should  have  arrived,  the  courts  have  from 
the  earliest  time  awarded  injunctions  without  notice.^ 

The  Clayton  Act  expressly  provides  "No  preliminary  injunc- 
tion shall  be  issued  without  notice  to  the  opposite  party.  "^ 
Under  the  peculiar  practice  of  the  Federal  courts,  a  temporary 
restraining  order  is  the  sole  relief  that  can  he  granted  in  such  a 
case.®  Such  a  restraining  order  must  expire  within  ten  days  after 
its  entry  unless  within  the  time  fixed  by  the  judge  it  is  so  ex- 
tended for  a  like  period.*  On  an  application  for  the  restraining 
order  the  plaintiff  must  show  by  affidavit  or  by  a  verified  bill 
that  specific  facts  from  which  it  appears  that  immediate  and 
irreparable  injury,  loss  or  damage  will  result  to  him  before 
notice  can  be  served  and  a  hearing  had  thereon,  unless  the  re- 
straining order  is  gi-anted.^  Upon  such  an  application  the  plain- 
tiff should  also  state  in  his  affidavit  the  time  when  he  first  learned 
of  the  threatened  mischief.^  If  the  injunction  desired  be  to  re- 
strain the  infringement  of  a  patent :  that  he  believes  that  the 
person  to  whom  the  patent  was  issued  was  the  original  inventor 
thereof,  or  that  the  thing  or  process  patented  was  new  or  had 
not  been  introduced  into  public  use  in  the  United  States  for 
more  than  two  years  prior  to  the  application  upon  which  the 
patent  was  issued,"'  and  every  material  circumstance  connected 
with  the  case,  whether  the  same  bears  for  or  against  his  appli- 
cation.*   If  his  affidavit  be  defective  in  any  of  these  particulars, 

§292.     iDaniell's    Ch.    Pr.     (5th  4 Ibid.,  supra,  §  291. 

Am.   ed.)    1664;    High,  Injunctions,  5  Ibid. 

§1578;      Kerr,     Injunctions,     545;  6  Calvert  v.  Gray,  2   Cooper 's  Ch. 

Wing  V.  Fairhaven,  8  Cush.  (Mass.)  171,  n. 

363;    Schermerhorn   v.   L'Espenasse,  7  Hill  v.  Thompson,  3  Meriv.  622; 

2  Dall    360,   1   L.   ed.   415;    Yueng-  Sturz    v    De    la   Rue,    5    Russ.    322, 

ling  V.  Johnson,  1  Hughes,  607.  329;    Sullivan  v.   Eedfield,   1  Paine, 

2  Act    of    Oct.    15,    1914,    ch.    32,  441.     See  also  U.  S.  R.  S.,  §§4886, 
§17,   38   St.   at  L.   737,   Comp.   St.,  4887. 

o  ;^243a  *  Dalglish  v.  Jarvie,  2  Macn.  &  G. 

3  Ibid.,  supra,  §  289,  291.  231. 


§292] 


NOTICE   OF    APPLICATION 


1435 


aceordiug  to  the  English  practice,  an  injunction  would  not  be 
issued,  or  if  issued  the  order  for  it  would  be  discharged.®  In 
the  absence  of  any  local  rule  upon  the  subject,  the  practice  in 
giving  notice  of  an  application  for  an  injunction,  and  of  pro- 
ceeding at  the  time  when  the  application  is  made,  are  the  same 
when  an  injunction  is  asked  for  as  upon  any  other  interlocutors- 
application. 

When  some  of  the  parties  are  non-residents,  notice  to  them  is 
sufficient  if  served  upon  their  resident  agent,  who  on  their  be- 
half is  committing  the  acts  sought  to  be  enjoined  when  he  also  is 
a  party  to  the  bill.^® 

It  has  been  said  that  an  application  for  an  interlocutory 
special  injunction,  during  term  and  after  the  beginning  of 
a  suit  and  before  answer,  can  only  be  made  by  inotiou;  but 
that  in  vacation  a  judge  may  grant  such  an  application  upon 
petition. 11  The  usual  practice  is,  however,  to  apply  by  mo- 
tion. It  has  been  held  that  a  mandatory  injunction  can  only 
be  granted  upon  notice.i^  It  has  been  further  held  that  the  evi- 
dence which  would  prevent  the  issue  of  an  interlocutory  injunc- 
tion will  be  sufficient  to  induce  the  court  to  dissolve  one  previ- 
ously granted. 13    A  temporary  injunction  may  be  granted  after 


9  Dalglish  V.  Jarvie,  2  Maen.  & 
G.  231,  24.S,  244,  per  Baron  Kolfe: 
"The  application  for  a  special  in- 
junction is  very  much  governed 
upon  the  .same  principles  which  gov- 
ern insurances,  matters  which  are 
said  to  require  the  utmost  degree  of 
good  faith,  'uberrima  fides.'  In 
cases  of  insurance  a  party  is  re- 
quired not  only  to  state  all  matters 
within  his  knowledge,  w-hich  he  be- 
lieves to  be  material  to  the  question 
of  the  insurance,  but  all  which  in 
point  of  fact  are  so.  If  he  conceals 
anything  that  he  knows  to  be  mate- 
rial, it  is  a  fraud;  but  besides  that, 
if  he  conceals  anything  that  may 
influence  the  rate  of  premium  which 
the  underwriter  may  require  al- 
though he  does  not  know  that  it 
would  have  that  effect,  such  con- 
cealment   entirely    vitiates    the    pol- 


icy. So  here,  if  the  party  apply- 
ing for  a  special  injunction,  ab- 
stains from  stating  facts  which  the 
court  thinks  are  most  material  to 
enable  it  to  form  its  judgment,  he 
disentitles  himself  to  that  relief 
which  he  asks  the  court  to  grant. ' ' 

lOVeitia  v.  Fortuna  Estates,  C. 
C.  A.,  240  Fed.  256. 

llDaniell's  Ch.  Pr.  (oth  Am.  ed.) 
1666;  Smith  v.  Clarke,  2  Dick.  455; 
Nichols  V.  Kearsly,  2  Dick.  645. 

12  Chicago,  B.  &  Q.  R.  Co.  v.  Bur- 
lington, C.  R.  &  X.  R.  Co.,  34  Fed. 
481. 

18  Cary  v.  Dome.stic  S.  Co.,  26  Fed. 
38.  Contra,  Toledo,  A.  A.  &  N.  M. 
Ry.  Co.  V.  Pennsylvania  Co.,  19 
L.R.A.  387,  54  Fed.  730;  s.  c,  19 
L.R.A.  395,  54  Fed.  746,  »upra, 
§286. 


1436 


INJUNCTIONS 


[§293 


a  final  liearing'  and  submission  of  tlie  case  on  the  merits.^* 
§  293.  Affidavits  upon  an  application  for  an  injunction.  The 
affidavits  upon  which  an  injunction  is  sought  are  usually  sworn 
to  by  the  plaintitt's  or  one  of  them,^  but  may  be  sworn  to  by  any 
person  acquainted  with  the  facts,^  in  which  latter  case  the  affi- 
davit should,  it  seems,  state  a  good  reason  for  its  not  being  sworn 
to  by  one  of  the  plaintiffs.^  Except  in  extraordinary  cases,  the 
allegations  must  be  sworn  to  positively  and  not  upon  informa- 
tion and  belief,  unless  the  sources  of  the  information  are  stated 
and  some  excuse  given  for  the  absence  of  the  affidavit  of  the 
informant.* 

It  has  been  said  that  in  the  equity  courts  allegations,  merely 
upon  information  and  belief,  unsupported  by  proof,  are  not  suf- 
ficient to  sustain  an  injunction.^  It  is  in  general  necessary  that 
a  plaintiff  should  swear  positively  to  his  title.®  An  injunction 
has  been  refused  when  a  plaintiff  merely  swore  upon  informa- 
tion and  belief  that  he  was  a  remainderman  under  a  settlement.'' 
Upon  an  application  for  an  injunction  to  stay  waste,  he  must 
set  out  his  title  with  particularity'.  A  .statement  "that  the  plain- 
tiff was  entitled  to  the  fee  simple  of  the  estate"  has  been  held 
insufficient.^  It  has  been  said  that  if  fraud  is  relied  upon  as  a 
basis  for  an  injunction,  it  mu.st  be  sworn  to  positively,  and  not 
merely  upon  information  and  belief.' 


14  Cimiotti  Unhairiu^  Co.  v.  Amer- 
ican Fur  Eef.  Co.,   117  Fed.   623. 

§293.  IDaniell's  Ch.  Pr.  (oth 
Am.  ed.)   1669. 

2  Lord  Byron  v.  Johnston,  2 
Meriv.  29;  Brooks  &  Hardy  v. 
O  'Kara  Bros.,  8  Fed.  529. 

3  Lord  Byron  v.  Johnston,  2  Meriv. 
29;  Spaulding  v.  Keely,  7  Sim.  377; 
Scotson  V.  Gaury,  1  Hare,  99;  Kerr 
on  Inj.   548. 

4  Lake  S.  &  N.  Ey.  Co.  v.  Felton, 
C.  C.  A.,  103  Fed.  227;  Murphy  v. 
Jack,  142  N.  Y.  215,  218;  Rosevelt 
V.  Edson,  51  N.  T.  Super.  Ct.  227. 

5Ee  United  "Wireless,  201  Fed. 
445,  449;  Re  Bloss  Fed.  Cas.  No. 
1,562;    Leavenworth    v.    Pepper,    32 


Fed.  529;  Bigbec  v.  Satterfield,  105 
Ga.  841,  32  S.  E.  139,  to  a  similar 
fact  is  Thompson  v.  Pack,  219  Fed. 
624,  aff'd  C.  C.  A.,  223  Fed.  641. 
In  re  Debs,  158  U.  S.  564,  573,  the 
Vjill  filed  by  a  railroad  company  was 
verified  only  by  the  afiBdavit  of  a 
person  not  shown  to  be  connected 
with  it,  stating  that  he  had  read  the 
bill  and  believed  the  statements 
therein  contained  to  be  true. 

GDaniell's  Ch.  Pr.   (.5th  Am.  ed.) 
1669. 

7  Davis  v.  Leo,  6  Yes.  784. 

8  Whitelegg      v.       Whitelegg,      1 
Brown,  Ch.  C.  57. 

9  Brooks     &     Hardy     v.     0 'Hara. 
Bros.,  80  Fed.  529. 


§  20;ii 


IX.jrNCTIOX    AFFIU.WITS 


i4.r 


The  plaintiff  shoultl  also  in  tlic-  affidavits  show  some  actual  vio- 
lation of  his  rights,  or  a  sufficient  ground  to  apprehend  it.^" 

A  verified  bill  may  lake  the  place  of  an  atTidavit."  Except  in 
the  special  cases  previously  described  an  injunction  may  be 
granted  though  the  bill  is  not  sworn  to,  provided  that  the  ac- 
companying affidavits  show  a  proper  case  for  it ;  "  but  not  un- 
less a  proper  case  is  made  out  by  the  bill  itself."  An  answer 
sworn  to,  positively,  has  at  least  the  efl'ect  of  an  affidavit." 

If  the  defendant  in  his  opposing  affidavits  set  up  as  a  defense 
new  matter  in  avoidance  of  the  case  shown  by  the  plaintitV.  the 
latter  may  have  leave  to  file  further  affidavits  in  rebuttal;  but 
generally  no  subsequent  affidavits  can  be  filed  by  the  defendant." 
Rebutting  affidavits  may  also  l)e  used  to  support  any  allegations 
of  the  bill  denied  in  Uie  answer  except  such  as  state  the  plain- 
tiff's title  to  ])i-operty  affected  by  the  litigation."  Affidavits  in 
rebuttal  cannot  be  filed  without  leave  of  the  court,  which,  it  has 
been  said,  should  only  be  granted  under  special  circumstances." 
The  authorities  are  conflicting  as  to  whether  or  not  the  plaintiff's 
title,  if  denied  in  the  answer,  can  be  supported  by  rebutting 
affidavits." 

The  court  has  permitted  the  use  of  affidavits  which  were  not 
entitled  and  which  were  made  and  signed  before  the  bill  was 
filed,  when  it  appeared  from  their  contents  that  they  were  made 
for  the  purpose  of  being  used  in  a  suit  between  the  parties." 

Where  an  allegation  in  the  bill  is  not  denied  in  the  answer,  it 


ll)Gil)Son  V.  Smith,  2  Atk.  182; 
Jackson  v.  Cator,  5  Ves.  688;  Han- 
son V.  Gardiner,  7  Ves.  305. 

11  City  of  Kankakee  v.  Am.  Water 
Supply  Co.,  C.  C.  A.,  199  Fed.  757. 

12  Smith  V.  Schwed,  6  Fed.  4.35. 

13  Cooper  V.  Mattheys,  8  Law  li. 
413;  "Wilson  v.  Stolley,  4  McLean, 
272;  Leo  v.  Union  Pae.  Ey.  Co.,  17 
Fed.  273;  Land  Co.  v.  Elkins,  20 
Fed.  545;  St.  Louis  T.  F.  v.  Carter 
&  G.  P.  Co.,  31  Fed.  524. 

14  Demerest  v.  Winchester  Kepeat- 
ing  Arms  Co.,  257  Fed.  171,  173. 
See  infra,  §  294. 

15  Day  V.  New  Eng.  C.  S.  Co.,  3 
Blatchf.  1.54. 


16  Brooks  v.  Bicknell,  3  McLean, 
250;  Farmer  v.  Calvert  Lith.  Co., 
1  Flip.  228.  See  Rule  113  and  Rule 
of  May,  1846,  of  U.  S.  C.  C,  S.  T>. 
N.  Y. 

17  Benbow-Brammer  Mfg.  Co.  v. 
Simpson  Mfg.  Co.,  132  Fed.  614. 

18  Compare  Poor  v.  Carleton,  3 
Sumn.  70;  Goodyear  v.  MuUee,  3 
Fisher,  420,  with  Farmer  v.  Calvert 
Lith.  Co.,  1  Flip.  228;  Parker  v. 
Sears,  1  Fish.  Pat.  Cas.  93;  U.  S. 
V.  Parrott,  1  McAll.  271.  See  Rule 
1907  and  Rule  of  May,  1846,  of  V. 
S.  C.  C,  S.  D.  N.  Y. 

19Modox  Co.  V.  Moxie  Nerve 
Food  (^0,  C.  C.  A.,  162  Fed.  649. 


1438  INJUNCTIONS  [  §  294 

is  taken  as  admitted  for  the  purposes  of  a  motion  for  a  prelimi- 
nary injunction.^® 

Documentary  proof,  if  of  equal  force  with  affidavits,  can  also 
be  used  in  support  or  in  opposition  to  a  motion  for  an  injunc- 
tion.2i 

Upon  the  hearing  of  a  motion  for  a  preliminary  injunction,  the 
rules  of  evidence  are  applied  less  strictly  than  upon  the  final 
hearing  of  the  cause ;  and  consequently  decrees  entered  in  suits 
between  strangers  affecting  the  validity  of  a  patent  in  question 
may  be  offered  in  evidence,  in  support  of  an  application  for  a 
preliminary  injunction,  but  not  in  support  of  an  application  for 
one  that  is  to  be  perpetual.^^  Hearsay  evidence  may  also  be 
used.2'  In  one  case  statements  in  a  proclamation  by  the  Gov- 
ernor of  the  State  were  treated  as  evidence  upon  such  a  motion.^* 
In  another,  campaign  speeches  by  the  Governor  of  the  State  were 
treated  as  evidence  of  the  proper  construction  of  a  law.^^  The 
declarations  and  conduct  of  third  parties  cannot  establish  a  case 
against  a  defendant  until  it  has  been  shown  by  independent  evi- 
dence that  there  was  a  combination  between  him  and  them.  The 
illegality  of  the  combination  may  then  be  shown  by  the  declara- 
tions alone.*^  In  a  proper  case  a  motion  for  a  bill  of  particulars 
may  be  required  of  the  party  seeking  an  interlocutory  injunc- 
tion.2^  This  relief  may  be  granted  upon  a  motion  to  vacate'  an 
injunction.^* 

§  294.  Rules  of  decision  upon  applications  for  interlocutory 
injunctions.  The  issue  of  an  interlocutory  injunction  is  never 
a  matter  of  right,  but  rests  in  the  sound  discretion  of  the  court. 
In  order  to  obtain  one,  the  plaintiff  must  show  either  that  there 
is  no  doubt  of  the  wrongful  nature  of  the  act  sought  to  be  en- 

20  Young  V.  Grundy,  6  Cranch,  51,  24  Coeur  d'  Alene  Cons.  &  M.  Co. 
3   L.   ed.   149.      See    §146.                         v.  Miners'  Union,  19  L.K.A.  382,  51 

21  Sehermerhorn  v.  L  'Espenasse,  2       Fed.  260. 

Dall.  360,  1  L.  ed.  415.  25  Mercantile  Tr.   Co.   v.   Texas  & 

22  Buck  V.   Hermanee,  1   Blatehf.       P.  Ry.  Co.,  51  Fed.  529,  542. 

322 ;  Matthews  v.  Ironclad  Mfg.  Co.,  26  Hitchman    Coal    &    Coke    Co   v. 

19  Fed.  321.  Mitchell,  245  U.  S.  229. 

23  Casey  v.  Cincinnati  Typ.  Union  27  Hane  v.  Crown  &  Keystone  Co., 
No.  3,  12  L.E.A.  193,  45  Fed.  135,  223  Fed.  439. 

147,  where   Judge   Sage   quotes  this  28  Ibid, 

passage  with  approval.  See  Merritt 
V.  Thompson,  3  E.  D.  Smith  (N.  Y.) 
283. 


§294] 


RULES   OF    DECISION 


14:J!] 


joined,^  or  that  his  own  claims  of  right  have  been  acquiesced  in 
without  question  for  a  long  period  of  tiinc,^  or  that  the  injury 
which  will  result  to  himself  from  a  refusal  of  the  injunction  will 
be  very  great,  and  that  to  the  defendant  from  the  issue  thereof 
very  slight.'  Otherwise,  an  interlocutory  injunction  will  be  de- 
nied him.* 

When  the  defendant  would  suffer  hy  the  injunction  as  much 
injury  as  the  complainant  or  greater  injury  unless  the  facts  are 
clear,  or  the  motion  should  be  denied.^    The  rule  as  to  balancing 


§  294.  1  Mintuni  v.  Larue,  1  Mc- 
AU.  370;  Buchanan  v.  Howland,  2 
Fish.  341;  Doughty  v.  West,  2  Fish. 
553;  Irving  v.  Joint  Dist.  Council, 
U.  B.  of  Carpenters,  &<-.,  180  Fed. 
896.  See  Owsley  v.  Yerkes,  185  Fed. 
686. 

ZVarick  v.  Mayor  of  N.  Y.,  4  J. 
Ch.  (N.  Y.)  53;  Kirhy  Bung  Mfg. 
Co.  V.  White,  1  Fed.  604;  McKay  v. 
Dilbert,  5  Fed.  o87;  W.  U.  Tel.  Co. 
V.  Union  Pac.  E.  Co.,  3  Fed.  721; 
Atlantic  &  Pac.  Tel.  Co.  v.  Union 
Pac.  Ry.  Co.,  1  Fed.  745;  Cumber- 
land Tel.  &  Tel.  Co.  v.  Railroad 
Commission  of  La.,  156  Fed.  23; 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  In- 
terstate Commerce  Commission,  182 
Fed.  189. 

3W.  U.  Tel.  Co.  V.  St.  J.  &  W. 
Ry.  Co.,  3  Fed.  430;  W.  U.  Tel.  Co. 
V.  Burlington  &  S.  W.  Ry.  Co.,  U 
Fed.  1;  Am.  U.  Tel.  Co.  v.  Union 
Pae.  Ry.  Co.,  1  McCrary,  188;  At- 
lantic &  Pac.  Tel.  Co.  v.  Union  Pac. 
Ry.  Co.,  1  McCrary,  541;  Allison  v. 
Corson,  C.  C.  A.,  88  Fed.  581;  Dim- 
ick  V.  Shaw,  C.  C.  A.,  94  Fed.  266; 
Cartersville  Light  &  Power  Co.  v. 
Mayor,  etc.,  of  Cartersville,  114 
Fed.  699 ;  Copper  King  v.  Wabash 
Min.  Co.,  114  Fed.  991;  Denver  & 
R.  G.  Co.  V.  U.  S.,  C,  C.  A.,  124 
Fed.  156;  W.  U.  Tel.  Co.  v.  Phila- 
delphia, B.  &  W.  R.  Co.,  124  Fed. 
974;  Mercantile  Tr.  &  D.  Co.  v.  Co- 
lumbus Waterworks,   130  Fed.   180; 


Jones  v.  Dimes,  130  Fed.  638;  Samp- 
son V.  Murdoek  Co.  v.  Seaver-Rad- 
ford  Co.,  129  Fed.  761;  Gring  v. 
Chesapeake  &  Delaware  Canal  Co., 
129  Fed.  996;  Harriman  et  aL  v. 
Northern  Securities  Co.,  132  Fed. 
464;  Seaboard  Air  Line  Ry.  Co.  v. 
Railroad  Commission,  155  Fed.  792; 
Colgate  v.  James  T.  White  &  Co., 
169  Fed.  887;  Arlington  Heights 
Fruit  Co.  V.  Southern  Pac.  Co.,  175 
Fed.  141 ;  Love  v.  Atchison,  T.  &  S. 
F.  Ry.  Co.,  C.  C.  A.,  185  Fed.  321; 
De  Koven  v.  Lake  Shore  &  M.  S. 
Ry.  Co.,  216  Fed.  955;  Magruder  v. 
Belle  Fourche  Valley  Water  Users' 
Ass'n,  219  Fed.  77;  Chew  v.  First 
Presbyterian  Church  of  Wilmington, 
237  Fed.  219;  American  Smelt.  & 
R.  Co.  V.  Bunker  Hill  &  S.  Min.  & 
C.  Co.  248  Fed.  172. 

4Coffeen  v.  Brunton,  5  McLean, 
256;  Kryptok  Co.  v.  Stead  Lens  Co., 
C.  C.  A.,  190  Fed.  767;  Mackey  Tel. 
&  Cable  Co.  v.  City  of  Texarkana, 
Ark.,  199  Fed.  347;  Smith  v.  Cum- 
mings,  1  Fish.  Pat.  Cas.  152; 
French  v.  Brewer,  3  Wall.  Jr.  346; 
Pentlarge  v.  Beeston,  1  Fed.  862; 
Kirby  Bung  Mfg.  Co.  v.  White,  1 
Fed.  604;  Texas  &  Pac.  Ry.  Co.  v. 
Interstate  Tr.  Co.,  45  Fed.  5. 

6  Kemmerer  v.  Midland  Oil  & 
Drilling  Co.,  C.  C.  A.,  229  Fed.  872; 
Brown  Drug  Co.  v.  U.  S.  235  Fed. 
603,  605;  Melomoline  Co.  v.  Stro- 
mever,  240  Fed.  228. 


1140 


INJUNCTIONS 


[§294 


of  injuries  is  not  applied  when  the  rights  of  the  parties  are  clear.^ 
All  doubtful  questions  of  fact  should  ordinarily  be  resolved 
against  the  complainant.'''    An  injunction  should  usually  be  de- 
nied when  the  proofs  are  equally  balanced.^ 

It  has  been  said  that  even  when  an  answer  under  oath  has  been 
waived  in  the  bill  the  injunction  must  be  dissolved  or  denied 
upon  the  presentation  of  a  sworn  answer  which  fully  and  une- 
quivocally denies  upon  personal  knowledge  all  the  material  alle- 
gations upon  which  the  complainant's  equities  rest.^  In  a  suit 
under  the  act  to  protect  trade  and  commerce  against  unlawful 
monopolies,  a  preliminary  injunction  was  refused  when  doubtful 
questions  of  law  and  fact  were  involved,  partly  upon  the  ground 
that  as  the  United  States  tendered  no  liond,  more  injury  would 
result  to  the  defendant  from  the  issue  than  to  the  plaintiff  from 
the  refusal  of  the  writ.*® 

An  interlocutory  injunction  may  be  granted  upon  evidence 
not  sufficiently  strong  to  justify  a  permanent  injunction  upon 
the  final  hearing."  It  is  settled  that  upon  a  preliminary  appli- 
cation for  a  temporary  restraining  order  all  that  the  judge 
should,  as  a  general  rule,  require  is  a  case  of  probable  right,  and 
of  probable  danger  to  that  right  without  the  interference  of  the 
court,  and  its  discretion  should  then  be  regulated  by  the  balance 
of  inconvenience  or  injury  to  the  one  party  or  the  other.^^     a 


6  Kemmerer  v.  Midland  Oil  & 
Drilling  Co.,  C.  C.  A.,  229  Fed. 
872;  Marquette  Cement  Mining  Co. 
V.  Oglesby  Coal  Co.,  253  Fed.  107. 

7  Photo  Drama  Motion  Picture 
Co.  V.  Social  IT.  Film  Corp.,  2 in 
Fed.  374;  T.  B.  Harms  &  Francis, 
Day  &  Hunter  v.  Stern  et  al,  222 
Fed.  581;  Societe  Anonyme  Du  Fil- 
tre  V.  Consolidated  Filters  Co.,  248 
Fed.  358. 

«Woodside  v.  Tonopah  &  O.  B. 
Co..  184  Fed.  358;  Mackey  Tel.  & 
Cable  Co.  v.  City  of  Texarkana, 
Ark.,  199  Fed.  347.  See  Corcoran 
V.  Nat.  Tel.  Co.  of  West  Virginia, 
C.  C.  A.,  175  Fed.  761;  Jackson  Co. 
V.  Gardiner  Inv.  Co.,  C.  C.  A.,  200 
Fed.  113. 

9  Water  Co.  of  Tonopah  v.  Public 


Service  Commission,  250  Fed.  304, 
Demerest  v.  Winchester  Repeating 
Arms  Co.,  257  Fed.  162,  172. 

10  U.  S.  V.  Jellico  M.  C.  &  C.  Co., 
43  Fed.  898. 

11  Ford  V.  Taylor,  140  Fed.  356; 
McCarthy  v.  Bunker  Hill  &  S.  Min. 
&  C.  Co.,  et  al.,  147  Fed.  981;  Gold- 
field  Consol.  Mines  Co.  v.  Goldfield 
Miners'  Union  No.  220,  159  Fed. 
500;  Central  of  Georgia  Ey.  Co.  v. 
Railroad  Com.  of  Ala.,  161  Fed. 
923 ;  Andrae  v.  Redfield,  12  Blatchf . 
407,  Fed.  Cas.  No.  367.  Contra, 
Henry  Gas.  Co.  v.  U.  S.,  C.  C.  A., 
191  Fed.  132. 

18  Indianapolis  Gas  Co.  v.  Indian- 
apolis, 82  Fed.  245,  246,  per  Baker, 
J.  Citing  New  Memphis  G.  &  L. 
Co.  V.  Memphis,  72  Fed.  952;  High, 


§  294]  RULES   OF   DECISION  1441 

temporary  injujietiou  may  be  granted  to  preserve  the  stdtus  quo 
until  tlie  final  determination  in  the  District  Court  or  upon  ap- 
peal althcmgh  the  court  is  of  the  opinion  that  on  the  merits 
relief  should  be  denied  and  the  bill  dismissed. ^^ 

The  I'ules  of  decision  upon  motions  for  injunctions  to  restrain 
the  infringements  of  patents,^*  copyrights,^^  and  trade-marks,^^ 
have  been  previously  described. 

It  has  been  said  to  be  no  objection  to  the  grant  of  a  prelimi- 
nary injunction,  that  it  involves  the  decision  of  an  issue  of  law 
which  virtually  determines  the  case."  An  injunction  was  granted 
against  an  illegal  ordinance  regulating  water  rates  for  one  year, 
although  an  appeal  from  the  order  could  not  be  determined  be- 
fore the  end  of  the  year.^' 

Where  no  great  financifil  loss  is  threatened  no  injunction  will 
be  issued  to  restrain  the  execution  of  an  act  of  Congress,  unless 
the  invalidity  of  the  statute  is  clear  beyond  a  rational  doubt. ^' 

It  is  a  sufficient  ground  for  refusing  an  injunction  that  it  com- 
pels tlie  defendant  to  connnit  an  act  forbidden  liim  by  anotber 
court.2®  It  is  better  practice  for  the  court  upon  such  a  motion 
not  to  adjudge  a  statute  to  be  a  violation  of  the  State  constitution 
before  that  question  has  been  decided  liy  the  State  courts,^^  but, 
Avhen  the  State  law  is  attacked  as  an  infringement  of  the  Con- 
stitution of  the  United  States  the  Federal  court  need  not  await 
the  decision  of  a  State  court  liefore  acting.22  I^pon  a  motion  to 
enjoin  the  continuance  of  a  suit  in  a  State  court  against  a 
Federal  receiver,  the  Federal  coui"t  followed  the  decision  by 
the  former  tribiuial  upon  the  validity  of  the  service  of  process.^' 

Danger  of  inconvenience  to  the  public  is  a  ground  for  refusing 
a  preliminary  injunction. 2*    A  preliminary  injunction  may  also 

Tiijiinctions,  §1.'!;  Granite  Brick  Co.  19  riiternatioiial     Mercantile     Ma- 

V.    Titns,   0.    C.    A.,    20.1   Fed.    659:  rine  Co.  v.  Stranalian,  1.5.")  Fed.  428. 

Shera  v.  Carbon  Steel  Co.,  245  Fed.  20  Soe   Louisville   iV:   X.    R.    Co.    v. 

589.  W.  r.  Tel  Co.,  C.  C.  A.,  23.]  Fed.  82, 

13Lonisville    &    N.    R.    Co.    v.    V.  21  Supra,     !>  lOOd,     infra,     S§  •!75, 

S.,  2.']3  Fed.  27;?.    See  supra,  §§1001),  ;!77,  477. 

tOod.  ZZ  Supra,    §25. 

ii  Supra.  §277.  23  fioe  infra.  §§  .■'.11/477. 

15  Supra,  §  278.  24  Southwestern  B.  El.  L.  &  P.  Co. 

16  Sui)ra,  §  279.  ^-  Louisiana  El.  L.  Co.,  45  Fed.  893; 

17  Minneapolis  General  El.  Co.  v.  Cubbins  v.  Mississippi  River  Coni- 
City   of  Minneapolis,   194  Fed.   215.  niLssion,     204     Fed.     299;      Marconi 

18  Los  Auijcles  C.  W.  Co.  v.  Los  Wireless  Telegraph  Co.  v.  Pinion, 
Angeles,  88  Fed.  720.  --'    I'ed.   90G;    Gaines   v.   Baltimore 


1442 


INJUNCTIONS 


[§295 


be  refused  when  the  plaintiff  has  been  guilty  of  laches  in  apply- 
ing for  it ;  even  though  his  delay  has  not  been  such  as  to  disen- 
title him  to  a  perpetual  injunction  after  the  hearing.^^  If  an 
injunction  has  been  obtained  by  an  interlocutory  order,  and  it  is 
desired  to  continue  it  provisionally  after  a  hearing,  a  direction 
to  that  effect  should  be  inserted  in  the  interlocutory  decree  then 
entered.^^  The  court  may  refuse  to  continue  an  injunction  when 
the  cause  for  which  it  was  granted  has  been  removed  before  the 
hearing.^''  In  such  a  case,  the  decree  should  usually  declare  that 
the  injunction  has  properly  been  issued  and  award  the  complain- 
ants costs.^®  Upon  the  argument  of  a  motion  for  an  injunction 
the  defendant  can  raise  any  defense  to  the  substance  of  the  bill 
that  would  be  set  up  by  a  demurrer.^^  But  not  the  objection  of 
multifariousness  when  no  motion  to  dismiss  upon  that  ground  is 
made.^'*  Upon  an  interlocutory  application  a  decision  of  a  Fed- 
eral court  in  another  circuit  will  usually  be  followed,^*  but  not 
necessarily  the  decision,  of  a  State  court  which  was  made  after 
the  controversy  between  the  parties  to  the  suit  in  the  Federal 
court  had  arisen.^^  The  court  may  refuse  to  grant  an  injunction 
although  all  parties  consent  that  one  shall  issue.^^ 

§295.  The  writ  of  injunction.  Immediately  upon  the  entry 
of  an  order  for  an  injunction,  the  party  who  obtained  it  is  en- 
titled to  have  the  writ  issued  from  the  clerk 's  office  and  served.* 
He  should  attend  to  this  within  a  reasonable  time.     "Where  the 


&  C.  S.  S.  Co.,  734  Fed.  786;  Armour 
&  Co.  V.  Texas  &  P.  Ey.  Co.,  C.  C. 
A.,  257  Fed.  185. 

25  Gordon  v.  Cheltenham  Ey.  Co., 
5  Beav.  229;  Mundy  v.  Kendall,  23 
Fed.  591 ;  Gideon  v.  Eepresentative 
Securities  Corp.,  232  Fed.  184;  Ann 
Arbor  E.  Co.  v.  Fellows,  236  Fed. 
387.  A  delay  of  several  months 
while  the  railway  company  was  test- 
ing the  effect  of  a  reduction  of  rates, 
is  not  such  laches.  Love  v.  Atchison, 
T.  &  S.  F.  Ey.  Co.,  C.  C.  A.,  185 
Fed.  321. 

26Danie]l's  Ch.  Pr.  (2d  Am.  ed.) 
1902;  Gardner  v.  Gardner,  87  N.  Y. 
14. 

27  Lewis  Pub.  Co.  v.  Wyman,  168 
Fed.  756. 


28  Smith  v.  IngersoU  Sergeant 
Eock  Drill  Co.,  7  Misc.  (N.  Y.) 
374,  377;  Williams  v.  United  Wire- 
less Teleg.  Co.,  1  N.  Y.  Sup.  Ct.; 
Bischoff,  J.,  N.  Y.  L.  J.  April  24, 
1912,  in  which  the  author  was  coun- 
sel. 

29  Ladd  v.  Oxnard,  75  Fed.  703. 

30  See  Lehigh  Z.  &  I.  Co.  v.  N.  J. 
Z.  &  I.  Co.,  43  Fed.  545,  550;  supra, 
§143. 

31  Bady  v.  Ga.  &  A.  Ey.,  112  Fed. 
838;  supra,  §  277. 

32  Jackson  Co.  v.  Gardiner  Inv. 
Co.,  C.  C.  A.,  200  Fed.  113. 

33  Nat.  Phonograph  Co.  v.  Schle- 
gel,  117  Fed.  624. 

§295.  IDaniell's  Ch.  Pr.  (2d 
Am.  ed.)   1816,  1817,  1964. 


§  295]  WRITS   OF   INJUNCTION  1443 

writ  was  tested  six  weeks  after  the  entry  of  the  order  granting 
it  and  was  not  served  till  nearly  a  year  afterwards,  the  court 
refused  to  punish  the  defendant  for  disobedience,  saying  that, 
after  the  lapse  of  so  much  time,  the  plaintiff  should  have  applied 
for  leave  to  use  the  writ.^  Like  all  oth^r  writs  and  process  is- 
suing from  the  courts  of  the  T'nited  States,  writs  of  injunction 
must  be  under  the  seal  of  the  court  from  which  they  issue,  and 
signed  by  the  clerk  thereof.  Those  issuing  from  the  Supreme 
Court  or  a  Circuit  Court  of  Appeals  must  bear  teste,  from  the 
date  of  such  issue,  of  the  Chief  Justice  of  the  United  States, 
or,  when  that  offiee  is  vacant,  of  the  associate  Justice  next  in 
precedence,  and  those  issuing  from  a  District  Court  must  bear 
teste  of  the  judge,  or,  when  that  office  is  vacant,  of  the  clerk 
thereof.' 

"The  orders  pronounced  by  the  court  in  cases  of  special  in- 
junctions before  answer,  have  varied  at  different  periods.  The 
form  most  frequently  adopted  enjoined  the  party  'till  further 
order.'  In  some  cases  the  injunction  has  been  till  'appearance 
and  furtlier  order;'  in  other  till  'answer  and  further  order.' 
But  the  form  at  present  used,  and  which  is  established  by  a  rule 
laid  down  by  Lord  Eldon,  is  'till  answer  or  further  order.' 
This  has  been  adopted  as  giving  defendant  the  liberty  to  move, 
if  necessary,  to  dissolve  upon  affidavit,  before  he  has  answered 
the  bill."* 

The  writ  should  contain  a  concise  description  of  the  particular 
acts  or  things  in  respect  to  which  the  defendant  is  enjoined ;  ^ 
and  should  conform  to  the  directions  of  the  order  granting  the  in- 
junction.^ It  is  the  safer  practice  when  the  writ  is  broader  than 
the  order  warrants  for  the  defendant  to  apply  to  the  court  for 
an  order  setting  it  aside  or  modifying  it.'  It  seems  that  he  is  not 
justified  in  disobeying  it  and  raising  the  objection  when  a  mo- 
tion is  made  for  an  attachment  against  him.^  "The  defendants 
ought  to  be  informed  as  accurately  as  the  case  permits  what  they 

2McCornuck  v.  Jerome,  3  Blatchf.  v.  Gardner,  87  N.  Y.  14;    State  v. 

486,  Wakeley,  28  Neb.  431,  437. 

3U.  S.  R.  S.,  §§911,  912.  6  Whipple       v.       Hutchinson,       4 

4Danieirs  Ch.  Pr.    (2d  Am.  ed.)  Blatchf.  190.     See  §291,  supra. 

1895;    Read   v.    Consequa,    4   Wash.  6  Sickles  v.  Borden,  4  Blat.'hf.  14. 

174.     See  Bolton   v.   London   School  7  Ibid. 

Board,  7  Ch.  D.  766,  771 ;  Gardner  8  Ibid. 


uu 


INJUNCTIONS 


?;295 


are  forbidden  to  do. "  ^  It  seems  that  a  writ  is  insufficient,  which, 
designates  the  acts  sought  to  be  enjoined,  hy  a  reference  to  the 
bill,  without  describing  them.^" 

When  a  carrier  has  been  adjudged  to  have  violated  the  inter- 
state commerce  law,  the  court  should  only  enjoin  certain  specific 
violations.  An  injunction  should  not  be  granted  commanding 
the  carrier,  in  general  terms,  not  to  violate  the  act  in  the  future 
in  any  partieular.^^  The  injunction  should  not  include  a  direc- 
tion, after  specific  inhibitions,  forbidding  the  defendant  to  act 
by  any  other  method  or  device,  the  purpose  and  effect  of  which 
is  to  restrain  commerce  as  aforesaid."  ^^ 

The  English  practice  was  to  mention  in  the  writ  a  money  pen- 
alty to  be  incurred  by  the  defendant  if  he  disobeyed  it ;  but  that 
does  not  seem  to  be  necessary  here.^' 

The  writ  should  be  addressed  to  the  persons  whom  it  is  de- 
sired to  enjoin. 1*  It  has  been  said  that  the  writ  cannot  narrow 
or  broaden  the  application  of  the  order  upon  which  it  is  based. ^^ 

If  the  injunction  is  against  waste,  or  forbids  the  continuance 
of  a  nuisance,  or  some  other  similarly  inequitable  act,  it  is  usu- 
ally addressed  to  the  defendant,  his  servants,  workmen,  and 
agents. 16  No  restraint  is  laid  upon  tlie  agent,  servant  or  employee 


9  Swift  &  Co.  V.  U.  S.,  196  U.  S. 
75,  401,49  L.  ed.  518,  526. 

V.       Hutchinson,       4 

V.   Judah,   4 

See    supra, 

E.  R.  Co.  V. 

Commissiou, 
ed.   515, 


10  Whipple 
Blatchf.   190;    Sullivan 
Paige     (N.    Y.),    444. 
S291. 

11  N.  Y.,  N.  H.  &  H. 
Interstate     Commerce 
200   U.   S.  ."lei,  404,  50  L 
526. 

12  Swift  &  Co.  V.  LT.  S.,  196  U.  S. 
375,  401,  49  L.  ed.  518,  526. 

13  Low  V.  Hauel,  1  Wall.  Jr.  345. 
HDaniell's  Ch.  Pr.   (2d  Am.  ed.) 

1817. 

16  Hitchman  Coal  &  Coke  Com- 
pany V.  Mitchell  Individually,  245 
U.  S.  229. 

16  Kerr  on  Injunctions,  559;  Dan- 
iell's  Ch.  Pr.  (5th  Am.  ed.)  1673; 
Humphreys  v.  Ko'uerts,  Seton  's  De- 
crees  (4th  ed.),  173;  In  re  Lennon, 


166  U.  S.  548,  41  L.  ed.  1110.  In 
Dadirrian  v.  Gullian,  79  Fed.  784: 
' '  The  writ  is  directed  specifically  to 
the  defendants  in  the  suit,  and  then 
generally,  without  naming  them,  to 
their  servants,  agents,  and  em- 
ployees. The  object  of  this  geuer- 
aliation  is  to  prevent  the  defendants 
from  doing  by  others  that  which 
the  court  has  forbidden  them  to  do 
personally;  from  accomplishing  in- 
directly a  result  prohibited  by  the 
court.  The  full  eifect  of  the  order 
is  that  the  defendant  shall  not  do 
the  unlawful  act  himself,  neither 
shall  his  agent,  servant,  or  employee 
do  it  for  him,  nor  shall  the  defend- 
ant do  it  as  the  agent,  servant  or 
employee  of  another.  Potter  v.  Mnl- 
lor,  1  Bond,  601,  Fed.  Cas.  No. 
11,333."  See  People  ex  rel.  Stearns 
v.  Marr,  181  N.  Y.  463,  106  Am.  St. 


§295] 


WRITS   OP    IXJUXCTIOX 


1445 


personally^  but  merelj'  as  the  agent,  servant  or  employee  of  the 
enjoined  defendant.*''^  Notwithstanding  the  injunction,  upon 
ceasing  to  be  the  agent,  servant  or  employee  of  the  defendant,  a 
person  not  named  in  the  injunction  is  free  to  act  for  himself  in 
the  protection  of  his  own  rights,  although  it  involves  his  doing 
the  very  thing  forbidden  him  when  in  the  employ  of  his  former 
master. 18  He  may  avoid  obedience  to  a  mandatory  injunction, 
which  does  not  name  him,  by  actually  ceasing  to  be  an  em- 
ployee of  the  defendant. 1^  He  may  enter  the  service  of  another 
master,  who  is  a  stranger  to  the  suit,  and  then  be  as  free  as  the 
latter  from  the  obligation  to  obey  the  court's  decree.^"  It  has 
been  said:  that  '"those  who  are  followers  or  companions  of  de- 
fendants, who  are  strikers,  are  and  will  be  bound  by  the  writ 
of  injunction  issued  herein,  to  the  same  extent  and  as  fully  as 
if  named  in  the  writ."^^  Where  an  injunction  restrained  the 
defendants,  "and  all  other  persons  having  knowledge  of  this 
injunction  order;"  it  was  held:  that  it  affected  only  the  agents 
or  servants  of  the  defendants,  or  those  acting  in  combination  or 
collusion  with  them,  or  in  assertion  of  their  rights  or  claims; 
and  that  persons  not  in  any  way  connected  with  them  were  not 
restrained,  and  could  not  be  punished  for  contempt  because  they 
committed  the  forbidden  act.^^ 


Eep.  562,  74  N.  E.  431,  3  Ann.  Cas. 
25;  infra,  §428. 

ITDadirrian  v.  Gullian,  79  Fed. 
784;  Slater  v.  Merritt,  7o  N.  Y. 
268;  Wellesley  v.  Mornington,  17 
Beav.  181. 

18  Mexican  Ore  Co.  v.  Mexican  G. 
M.  Co.,  47  Fed.  351;  Dadirrian  v. 
Gullian,  79  Fed.  784. 

19  Toledo,  A.  A.  &  N.  M.  Ey.  Co. 
V.  Pennsylvania  Co.,  19  L.E.A.  395, 
54  Fed.  746-;  Dadirrian  v.  Gullian, 
79  Fed.  784. 

20  Dadirrian  v.  Gullian,  79  Fed. 
784;  People  v.  Kandall,  73  N.  Y. 
4.16;  Slater  v.  Merritt,  75  N.  Y. 
268. 

21  Union  Pac.  E.  Co.  v.  Euef,  120 
Fed.  102,  106.  In  Anderson  v.  In- 
dianapolis Drop  Forging  Co.,  34 
Ind.  App.  100,  72  N.  E.  277,  it  was 

Fed.  Prac.  Vol.  II— 21 


held  that  pickets  for  a  labor  union, 
although  not  made  defendants  in  an 
injunction  suit,  are  amenable  to  the 
injunction  restraining  the  union,  and 
all  persons  confederated  or  conspir- 
ing with  it,  from  obstructing  the 
business  of  plaintiff  and  its  em- 
ployees, where  they  have  actual  no- 
tice of  such  injunction. 

22Eigas  V.  Livingston,  178  X.  Y. 
20.  In  State  v.  Porter,  76  Kan.  411, 
13  L.E.A. (N.S.)  462,  91  Pac.  1073, 
held :  that  the  purchaser  of  laud, 
with  knowledge  of  an  injunction  en 
joining  his  grantor  and  the  former 's 
agents,  successors,  assigns,  and  all 
persons  whomsoever  from  maintain- 
ing a  liquor  saloon  on  such  land 
could  be  punished  for  contempt  of 
the  injunction.     This  case  was  criti- 


1446 


IN  J  UNCTIONS 


[§296 


In  a  suit  to  restrain  proceedings  in  another  court,  the  injunc- 
tion usually  is  directed  against  the  defendants,  his  attorneys  and 
agents,  even  though  the  bill  prays  for  an  injunction  against  the 
defendant  alone.^^  But  the  latter 's  tenants  cannot  be  thus  en- 
joined, unless  they  have  become  such  after  the  commencement 
of  the  suit  or  have  been  made  parties  to  it.^* 

In  one  case  an  injunction  was  granted  against  all  persons  act- 
ing in  concert  with  the  defendants  named  and  under  their  direc- 
tion and  control. ^^ 

The  writ  should  be  indorsed  or  subscribed  with  the  name 
and  office  address  of  the  plaintiff's  solicitor,  or  Avith  the  name 
and  residence  of  the  plaintiff  if  he  appears  in  person. ^6 

§  296.  Dissolution  and  modification  of  interlocutory  injunc- 
tions. The  common  injunction  Avas  dissolved  as  of  course  upon 
the  defendant's  putting  in  a  sufficient  answer  to  the  bill.  The 
practice  in  such  a  case  was  for  him  to  obtain  an  order  nisi,  upon 
the  return  of  which  the  injunction  was  always  dissolved,  unless 
the  plaintiff  could  show  that  the  answer  was  insufficient  for  the 
purpose  either  of  defense  or  of  discovery. ^  A  special  injunction 
can  onl.v  be  dissolved  by  a  special  motion,  either  in  open  court 
or  at  a  special  hearing  appointed  elsewhere  for  that  purpose  by 
a  judge  of  the  court .^  It  has  been  held :  that  an  order  for  a  per- 
petual injunction  cannot  be  modified  at  a  subsequent  term  ^  that 
after  a  demurrer  put  in  by  him  to  the  bill  had  been  overruled  a 
defendant  could  only  move  to  dissolve  by  leave  of  the  court ; 
which  was,  in  one  case,  only  granted  upon  his  affidavit  that  the 
demurrer  was  not  interposed  for  delay,  and  his  giving  security 
to  pay  all  damage  to  the  plaintiff  thereby  caused.* 

The  motion  may  be  made  at  any  time  before  decree,®  even,  it 


fised    in   xxi   Harv.   Law   Rev.   220. 
See  infra,  §  428. 

23Danie]rs  Ch.  Pr.  (5th  Am.  ed.) 
1673. 

24  Hudson  V.  Coppard,  29  Bcav. 
4;  Kerr  on  Inj.  .543. 

25  IT.  S.  V.  Elliott,  64  Fed.  27,  .'io. 

26  Kerr  on  Inj.  559 ;  Daniell  's 
Ch.  Pr.  (5th  Am.  ed.)   1674. 

§296.  1  Daniell 's  Ch.  Pr.  (2d 
Am.  ed.)  1820-1829;  Poor  v.  Carle- 
ton,  3  Sumn.  70;  New  York  v.  Con- 


neetieut,  4  Dall.   1,   3,  note   1,   1  L. 
ed.  715,  716,  [ler  Washington,  J. 

2  Kerr  on  Inj.  561;  Daniell 's  Ch. 
Pr.  1675;  Wilkins  v.  Jordan,  3 
Wash.  C.  C.  226;  Caldwell  v.  Wal- 
ters, 4  Craneh,  C.  C.  577. 

3  L.  E.  Waterman  Co.  v.  Stand- 
ard Drug  Co.,  C.  C.  A.,  202  Fed. 
167. 

4  Woodwortli  V.  Edwards,  3  W.  & 
M.  120. 

6  Kerr  on  Inj.  560;   Daniell's  Ch. 


<  '_>!>G]  DISSOLITIOX    AND    MODll'ICATK  "V  lUl 

seems,  before  the  defendant  has  been  served  with  proeess,^  and 
before  he  has  appeared^  Upon  the  decision  of  a  motion  for  a 
preliminary  injunction,  a  t.-mporary  restraining  order  previ- 
ously issued  cs  parte  expires  ipso  facto;  and  the  court  has  no 
rijrht  to  deny  a  motion  for  its  dissolution.8  A  preliminary  in- 
junction restrainintr  the  enforcement  of  a  judf^ment  initil  the 
matter  in  controversy  shall  be  "definitely  and  Hnally  adjudged" 
remains  in  force  until  after  such  an  adjudication  so  long  as  the 
defendant  has  the  right  to  a  review  thereof  by  motion  for  a  new- 
trial  or  by  proceedings  by  appeal  oi-  writ  of  error.® 

If  at  the  time  of  the  hearing  the  court  is  of  the  opinion  that 
upon  the  facts  and  circumstances  then  existing  the  defendant 
should  be  enjoined,  an  injunction  will  be  continued,  irrespective 
of  any  irregularities  connected  with  its  previous  issue.®''     When 
a  special  injunction  has  been  granted  against  several  defendants, 
any  of  them  may  move  to  dissolve  it  as  against  himself;  but 
he  should  in  that  case  serve  the  others  as  well  as  the  plaintiff 
with  a  notice  of  his  motion.^®    In  one  case  after  answer,  a  notice 
left  at  the  office  of  the  solicitor   for  the  plaintiff  during  his 
absence  from  the  city  three  days  before  the  motion  was  held 
sufficient."     If  the  motion  to  dissolve  is  made  before  answer,  it 
must  be  supported  by  affidavits  or  documentary  proof  contra- 
dicting the  statements  upon  which  the  injunction  was  obtained.12 
unles.s^'the  defendant  can  show  that  it  is  plain  upon  the  face 
of  the  plaintiff's  bill  and  affidavits  that  he  was  not  entitled  to 
the  injunction,  when  the  motion  will  be  granted. ^^ 

When  the  injunction  has  been  irregularly  issued,  the  defend- 
ant should  move  to  discharge  the  order  granting  it.^^     If  he 

Pr.    (oth    Am.    Cfl.)    167o;    Mot.    G.  10  Tiionii'son     v.     Geary,    o    Boav. 

&  S.  Exch.  V.  Chicago  B.  of  T.,  15        i:n  :    Kerr    on    Inj.    564.      But    see 
Fed.  847.  Daniell's    Cli.     I'r.     (otli     Am.    cd.) 

6  Shields   v.    McClung.    6    W.    Va.       1(i7(i,  note  1. 

11  Cahhvell   v.   Walters,  4   CranL-h. 


79. 


7  Menzios    v.    Roilrigues,    1    I^riie,  C.   C.   577. 

92.  12  Daniell's  Cr.  Pr.  (5th  Am.  ed. ) 

8  Pack    V.    Carter,    C.    C.    A.,    22:1  1676;    Youncr  y.   Grundy,   6  Craneh, 
Fed.  638,  641.  51,  :i  L.  ed.  149. 

9. J.  L.  Owens  v.  Officer,  C.  C.  A..  13  Hudson    v.    Maddi.son.    12    Sim. 

244  Fed.  47,  49.  •'"6;  Kidwell  v.  Masterson,  .3  Craneh, 

"  9aMississiI>i.i  Valley   Trust  Co.   v.  C  C.  52;  Fenwick  Hall  Co.  v.  Towu 

Railway  Steel  Spring  Co.,  C.  C.  A.,  of  Old   Saybrook,  (yii  Fed.  :589. 
258  Fed.  347.  14  Angier   v.   May,   :!   W.   R.   -■'^: 


1448 


INJUNCTIONS 


[§296 


should  move  to  dissolve  it,  he  might  be  held  to  have  by  so  doing 
recognized  its  regularity.^^ 

Where  the  application  for  dissolution  was  made  after  an- 
swer, it  was  originally  thought  that  the  plaintiff  could  not 
show  that  any  of  the  allegations  therein  contained  were  false ;  ^^ 
but  the  doctrine  has  been,  in  this  country  at  least,  exploded,^' 
and  it  is  well  settled  that  the  plaintiff  not  only  may  dispute 
the  truth  of  such  allegations,  whether  they  are  positive  or 
negative,  but  is  at  liberty  to  file  counter  affidavits  in  reply 
to  new  matter  contained  in  the  defendant's  affidavits  or  an- 
swer.i8  It  has  been  held:  that  a  preliminary  injunction  will 
not  be  dissolved  upon  an  answer  admitting  the  material  equities 
of  the  bill  and  setting  up  new  matter  in  avoidance.^^ 

When  a  stay-order  has  been  made,  and  simultaneous  appli- 
cations, by  the  defendant  to  discharge  the  stay-order,  and  by  the 
plaintiff  for  an  injunction,  are  heard  together  the  plaintiff  has 
the  right  to  open  and  close  the  argument.^o  If  upon  the  appli- 
cation to  dissolve  an  injunction  the  court  is  not  satisfied  that 
the  plaintiff  is  entitled  to  retain  it,  it  will  dissolve  the  injunc- 
tion, and  may  then  direct  an  issue,  an  action  at  law,  or  a  refer- 
ence before  the  hearing.^i  If,  however,  it  is  satisfied  that  the 
plaintiff  is  entitled  to  the  writ,  the  court  will  direct  the  in- 
junction to  be  continued  until  the  hearing.22  Formerly  where 
the  court  dissolved  the  injunction  upon  the  ground  that  it  ap- 
peared upon  the  face  of  the  bill  that  the  plaintiff  was  not  entitled 
thereto,  and  that  was  the  only  relief  prayed  for  by  him,  it  could 
not  at  the  same  time  dismiss  the  bill ;  for  the  plaintiff  had  still 
the  right  to  bring  the  suit  to  a  hearing.^^ 

If  the  question  is  left  in  doubt  upon  the  motion  to  dissolve,  it 


Daniell's    Ch.    Pr.     (5th    Am.    ed.) 
1676;   Kerr  on  Inj.  564. 

16  Vipan  v.  Mortlock,  2  Meriv. 
476;  Kerr  on  Inj.  564. 

16  Daniell's  Ch.  Pr.  (5th  Am.  ed. 
1676,  note  4. 

17  Poor  V.  Carleton,  3  Sumn.  70; 
U.  S.  V.  Parrott,  1  McAll.  271;  Orr 
V.  Littlcfield,  1  W.  &  M.  1:5 ;  Orr  v. 
Merrill,  1  W.  &  M.  376;  Clum  v. 
Brewer,  2  Curt.  506. 

18  Day  v.  New  Eng.   C.   S.   Co.,   3 


Blatehf.  154;  Daniell's  Ch.  Pr.  (5th 
Am.  ed.)  1676;  Shoemaker  v.  Nat. 
Mech.  Bank,  1  Hughes,  101. 

19Pere  Marquette  E.  Co.  v.  Brad- 
ford, 149  Fed.  492. 

20  Eraser  v.  Whalley,  2  Hem.  & 
M.  10. 

21  Daniell's  Ch.  Pr.   (2d  Am.  ed.) 

1897. 

22  Packington  v.  Paekington,  1 
Dick.  101;  Daniell's  Ch.  Pr.  (5th 
Am.  ed.)   1678. 


296J 


DISSOLUTION    AND    MODIFICATION 


1449 


seems  that  the  motion  will  he  denied.^*  A  inodifieatiou  of  an 
injunction  may  be  refused  in  a  case,  where  if  asked  before  the  in- 
junction was  issued  it  might  have  been  allowed  but  equities  have 
since  arisen.^s  The  ambiguity  of  the  order  granting  the  injunc- 
tion is  sufficient  ground  for  its  dissolution  or  modification.2« 
The  defendant's  delay  in  moving  to  dissolve  the  injunction  may 
deprive  him  of  his  right  to  have  it  dissolved.^'' 

When  a  special  injunction  has  been  granted  after  a  full  hear- 
ing, it  will  not  be  dissolved  except  on  new  evidence.^^  It  has 
been  held  that  a  preliminary  injunction  will  not  be  dissolved 
after  answer  upon  grounds  shown  by  affidavits,  which,  from  their 
not  having  been  set  up  in  the  answer,  cannot  be  used  at  the  hear- 
ing of  the  whole  case.29  A  judge  will  very  rarely  dissolve  an 
injunction  granted  by  one  of  his  judicial  brethren.^o  It  has 
been  said  that,  in  case  of  the  death  of  the  judge  who  made  the 
order,  the  motion  to  dissolve  it  should  be  made  before  two 
judges.^i 

A  temporary  injunction  may  be  modified  or  dissolved  by 
the  District  Court  after  it  has  been  affirmed  upon  appeal.32  It 
has  been  said  that  a  court  of  first  instance  has  no  power  to 
modify  or  dissolve  a  perpetual  injunction  contained  in  an  in- 


28  Brooke  v.  Clarke,  1  Swanst. 
550 ;  Blow  v.  Taylor,  4  Hen.  &  Munf . 
(Va.)  159.    But  see  infra,  §  300. 

24  Cooper  v.  Mattheys,  5  Peiin.  L. 
J.  38;  s.  c,  Law  E.  413;  Fisher  v. 
Lord,  6  West  L.  J.  137;  Woodworth 
V.  Hall,  1  W.  &  M.  389;  Woodworth 
V.  Eogers,  3  W.  &  M.  135;  Spark- 
man  V.  Higgins,  1  Blatchf.  205.  But 
see  Edison  El.  Co.  v.  Westinghouse 
El.  &  Mfg.  Co.,  54  Fed.  504. 

26  Sperry  &  Hutchinson  Co.  v.  Me- 
chanics '  Clothing  Co.,  128  Fed.  1015. 
Tt  has  been  said  that  a  modification 
of  the  order  will  usually  be  refusc(] 
when  its  effect  would  be  to  change 
the  position  of  the  property  affected 
by  the  suit.  Ulman  v.  Ritter,  72 
Fed.  1000. 

26  Dalglish   V.   Jarvie,   2   Macn.   & 


G.  231. 

27  Florence  S.  M.  Co.  v.  Grover  & 
Baker  S.  M.  Co.,  110  Mass.  1;  Kerr 
on  Inj.  565;  Antisdel  v.  Chicago  H. 
C.  Co.,  89  Fed.  308,  311. 

28Wood\\ortli  V.  Hall,  1  W.  &  M. 
389. 

29  Union  P.  B.  M.  Co.  v.  Newell, 
11  Blatchf.  549. 

30  Cole  S.  Min.  Co.  v.  Virginia  & 
G.  H.  W.  Co.,  1  Saw.  685;  Preston 
V.  Walsh,  10  Fed.  315;  Reynolds  v. 
Iron  S.  Min.  Co.,  33  Fed.  354;  Klein 
V.  Flectford,  35  Fed.  98. 

31  Westerly  Waterworks  v.  Town 
of  Westerly,  77  Fed.   783. 

32  Edison  El.  L.  Co.  v.  U.  S.  El. 
L.  Co.,  C.  C.  A.,  .59  Fed.  501;  An- 
drews V.  National  F.  &  P.  Works, 
61    Fed.    782,   790;    s.   c,   10   C.   C. 


1450 


INJUNCTIONS 


[§296 


terlocutory  decree  which  has  been  affirmed  upon  appeal.^^  It  is 
the  safer  practice  for  the  defendant  to  obtain  a  clause  in  the 
order  of  affirmance  granting  leave  to  the  District  Court  to  mod- 
ify the  injunction  order. 3*  After  an  injunction  has  been  dis- 
solved, if  evidence  subsequently  taken  shows  that  it  was  prop- 
erly issued,  it  may  be  issued  anew.^^  The  dissolution  of  an  ex 
'parte  injunction  on  account  of  a  suppression  of  material  facts 
does  not  preclude  the  plaintiff  from  applying  for  another  in- 
junction on  the  merits.^^ 

An  injunction  may  also  be  dissolved  if  the  plaintiff  is  guilty 
of  gross  and  inexcusable  delay  in  taking  testimony  or  in  bring- 
ing the  cause  to  a  hearing ;  ^^  or  by  inequitable  conduct,38  g^ch 
as  a  misrepresentation  concerning  the  contents  of  the  injunction 
made  to  the  trade,^^  and  in  general  if  from  a  change  of  circum- 
stances its  continuance  would  no  longer  serve  any  useful  pur- 


40 


pose. 

The  subsequent  passage  of  an  act  of  Congress  legalizing  a 
structure  which  has  been  enjoined  as  a  nuisance  is  a  reason  for 
the  dissolution  of  an  injunction.*!  It  lias  been  held  that  an  in- 
junction staying  proceedings  at  law  against  a  bankrupt  is  dis- 
solved (>so  jaeto  by  his  discharge ;  *2  but  remains  unaffected  by 
his  delay  in  applying  for  his  discharge."  It  has  been  held  that 
at  the  expiration  of  a  patent  the  court  will  dissolve  an  injunc- 
tion against  its  infringement,  and  leave  the  complainant  no  rem- 
edy except  his  claim  for  damages  against  the  subsequent  sale 


A.,  60,  68;  s.  C,  24  U.  S.  App.  81. 
C/.  Standard  El.  Co.  v.  Crane  El. 
Co.,  C.  C.  A.,  76  Fed.  767,  794. 

33Bissell  C.   S.   Co.    v.   Goshen   S. 
Co.,  72  Eed.  545. 

34  Hadden  v.  Doolcy,  C.  C.  A.,  74 

Fed.  429. 

35  Tucker    v.    Carpenter,    Hcmpst. 

440. 

36  Fitch  V.  Eochfort,  18  L.  J.  Ch. 
458;   High,  Injunctions,  §1474. 

37  Read  V.  Consequa,  4  Wash.  C. 
C.  174;  Bradley  v.  Reed,  12  Pitts. 
L.  J.  65;  Schermerhorn  v.  L 'Es- 
penasse,  2  Call.  360,  1  L.  ed.  415; 


In   re   Matter   of   Sehwarz,   14   Fed. 
787 ;  mvra,  §  284. 

38  Twenty-One  Min.  Co.  v.  Origi- 
nal Sixteen  to  One  Mine,  C.  C.  A., 
240  Fed.  106  (work  similar  to  that 
enjoined). 

39  Meyers  v.  Skinner,  186  Fed. 
347.     See  swpro,  §  284. 

40  Ee  Jackson,  9  Fed.  493;  Be 
Pitts.  9  Fed.  542. 

41  Baird  v.  Shore  L.  Ey.  Co.,  6 
Blatchf.  461;  Hadden  v.  Dooley,  C. 
C.  A.,  74  Fed.  429. 

42  2?e  Thomas,  '.^  N.  B.  E.  7. 

43  Be  Schwartz,  14  Fed.  787,  789. 


§296] 


DISSOLUTION    AND    MODIFICATION 


1451 


and  use  of  articles  maniifactiired  while  the  patent  was  alive  in 
infringement  thereof." 

An  injunction  is  not  dissolved  l)y  an  amendment  of  the  bill " 
unless  the  amendment  sul)stanlially  changes  the  cause  of  action,*^ 
or  abandons  the  prayer  for  tlie  injunction.*"^  But  ii  is  .■ustoiii- 
ary  to  include  in  the  order  allowing  an  amendment  a  direc- 
tion that  it  be  "without  prejudice  to  tiie  injunction."  The 
allowance  of  a  demurrer  to  the  whole  bill  put  an  end  to  an 
injunction  which  had  previously  been  obtained;"  but  leave  was 
usually  given  to  amend  without  prejudice  to  the  injunction, 
when  the  demurrer  was  allowed  on  account  of  a  defect  in  form  ** 
such  as  multifariousness,^"  or  for  the  omission  of  an  allegation 
that  could  leadily  be  supplied  even  if  the  same  were  essential  to 
the  jurisdiction."  The  allowance  of  a  ])lea  did  not  dissolve  an  in- 
junction. "There  may  be  some  equity  shown  to  continue  it.  An 
order  for  its  dissolution  must  be  obtained.""  An  injunction 
is  not  dissolved  by  an  abatement  or  by  a  defect  in  the  suit,  but 
the  defendant  must,  if  he  wishes  to  be  freed  from  the  restraint 
thereby  imposed,  move  that  the  plaintiff  or  his  representatives  be 
required  to  revive  or  take  such  other  steps  as  may  be  necessary 
within  a  limited  time,  and  that  if  he  fail  to  do  so  the  injunction 
may  be  dissolved.'^^  Generally  an  interlocutory  injunction  is 
dissolved  by  the  entry  of  a  final  decree  which  does  not  continue 
the  same.^* 


44  Westinghouse  v.  Carpenter,  4."? 
Fed.  894,  Miller  and  Love,  J  J. ;  Am. 
C.  Ry.  Co.  V.  Chicago  C.  Ry.  Co., 
41  Fed.  522.  But  see  Am.  D.  R.  B. 
Co.  V.  Rutland  M.  Co.,  2  Fed.  3i56; 
supra,   §§  79,  277. 

46  Reed  v.  Consequa,  4  Wash.  C. 
C.  174;  Warburton  v.  L.  &  B.  Ry. 
Co.,  2  Beav.  25.'?.  But  see  Sharp  v. 
Ashton,  3  V.  &  B.  144. 

46  Atty.  Gen.  v.  Marsh,  16  Sim. 
572;   Kerr  on  Inj.  566. 

47Westeott  V.  Mulvane,  58  Fed. 
305. 

,4*  Schneider  v.  Lizardi,  9  Beav. 
461,  468;  Frye  &  Bruhn  v.  Cars- 
tens,  C.  C.  A.,  130  Fed.  766. 


49  Riverside  &  A.  Ry.  Co.  v. 
Riverside,  118  Fed.  736,  746. 

60  Rawlings  v.  Lambert,  1  J.  & 
H.  458;  Kerr  on  Inj.  565,  566;  Le- 
high Z.  &  I.  Co.  v.  N.  J.  Z.  &  I.  Co., 
43  Fed.  545,  550. 

61Leliigh  Z.  &  T.  Co.  v.  X.  .7.  Z. 
&  I.  Co.,  43  Fed.  545,  550. 

62  Kerr  on  Inj.  566;  Phillips  v. 
Langhorn,  Dick.  148;  Ferrauil  v. 
Hamer,  4  M.  &  C.  143. 

63Clio\vick  V.  Dimes,  3  Beav.  200; 
Lee  V.  Lee,  1  Hare,  622;  Chester  v. 
Life  Ass'n  of  Am.,  4  Fed.  487;  Cf. 
S  362,  infra. 

64  Sweeney  v.  Hanley,  C.  C.  A., 
126  Fed.   97,  99;   Oardner  v.  Card- 


1452 


INJUNCTIONS 


[§297 


§  297.  The  imposition  of  terms  upon  the  issue,  denial,  disso- 
lution, or  continuance  of  an  injunction  and  injunction  bonds. 

As  the  issue  of  a  special  injunction  is  in  its  discretion,  the  court 
may  impose  terms  upon  the  plaintiff  or  defendant  when  granting 
or  refusing  the  issue,  dissolution,  or  continuance  of  the  same.^ 
The  usual  terms  are  the  giving  of  a  bond  or  undertaking  with 
good  security  to  indemnify  the  other  party  against  all  loss  that 
may  result  from  the  issue  or  withholding  of  the  injunction.^  These 
undertakings  were  invented  by  Vice-Chancellor  Knight  Bruce, 
and  originally  they  were  required  only  upon  ex  parte  injunctions, 
being  designed  to  protect  the  court  as  well  as  the  defendant  from 
improper  ex  parte  applications.  Later  the  practice  was  extended 
to  interlocutory  injunctions  granted  upon  notice  to  the  defend- 
ant, first  in  special  cases,  then  generally ;  and  now  they  are  usu- 
ally required  as  a  matter  of  course  in  England  and  all  or  nearly 
all  the  States  of  the  Union,  although  in  some  of  the  circuits  the 
Federal  judges  were  formerly  accustomed  to  grant  injunctions 
without  such  a  requirement.^     The  reason  for  the  requirement 
is  that  upon  an  interlocutory  application  but  a  short  time  is 
allowed  for  the  preparation  of  the  ease,  and  it  is  impossible  for 
the  court  to  obtain  a  complete  knowledge  of  the  facts.     More- 
over these  applications  are  heard  upon  affidavits,  so  that  it  is 
impossible  to  say  which  side  will  ultimately  prove  to  be  right. 
Consequently  the  court  reserves  the  right  to  indemnify  the  de- 
fendant in  case  it  should  have  been  induced,  upon  an  incomplete 
state  of  facts,  to  make  a  wrong  order.*     This  doctrine  was  the 
cause  of  great  injustice  and  was  not  usually  followed  in  the  State 
courts.^ 


ner,  87  N.  Y.  14.  For  a  case  where 
an  injunction  was  not  dissolved  by 
the  dismissal  of  the  bill,  see  Indian- 
apolis &  N.  W.  Tr.  Co.  V.  Consol. 
Tr.  Co.,  125  Fed.  247. 

§297.  1  Russell  v.  Farley,  105 
U.  S.  433,  26  L.  ed.  1060;  N.  J.  & 
N.  C.  Land  &  Lumber  Co.  v.  Gard- 
ner-Lacy Lumber  Co.,  113  Fed.  395 ; 
Marvel  Co.  v.  Pearl,  114  Fed.  946; 
Carpenter  v.  Knollwood  Cemetery, 
195  Fed.  96,  100;  Coca-Cola  Co.  t. 
Nashville  Syrup  Co.,  200  Fed.  153, 
a    trademark    case    where    the    com- 


plainant   was    required    to    give    a 
bond. 

2  Russell  V.  Farley,  105  U.  S.  433, 
26  L.  ed.  1060;  Kirby  Bung  Mfg. 
Co.  V.  White,  1  Fed.  604;  Northern 
Pac.  R.  Co.  V.  St.  P.,  M.  &  M.  R.  Co., 
2  McCrary,  260;   s.  C,  4  Fed.  688. 

3  Western  Union  Tel.  Co.  v.  U.  S. 
&  M.  T.  Co.,  221  Fed.  545. 

4  Smith  V.  Day,  21  Ch.  D.  421. 
See  Lowenfeld  v.  Curtis,  72  Fed.  105. 

6  See  High  on  Injunctions  (4th 
ed.),  §1619-1634a. 


§  297]  INJUNCTION   BONDS  1453 

The  only  case  in  which  prior  to  the  Clayton  Act  a  bond  was 
indispensal)le  was  an  injunction  to  restrain  proceedings  upon  a 
warrant  of  distress  against  a  delinquent  revenue  collector  or 
receiver  of  public  money.    The  Revised  Statutes  provide  :  "Any 
person  who  considers  himself  aggrieved  by  any  warrant  of  dis- 
tress issued  under  the  foregoing  provisions  may  prefer  a  bill  of 
complaint  to  any  district  judge  of  the  United  States,  setting  forth 
therein  the  nature  and  extent  of  the  injury  of  which  he  com- 
plains ;  and  thereupon  the  judge  may  grant  an  injunction  to  stay 
proceedings  on  such  warrant  altogether,  or  for  so  much  thereof 
as  the  nature  of  the  ease  requires.    But  no  injunction  shall  issue 
till  the  party  applying  for  it  gives  bond,  with  suflficient  security 
in  a  sum  to  be  prescribed  by  the  judge,  for  the  performance  of 
such  judgment  as  may  be  awarded  against  him ;  nor  shall  the 
issuing  of  such  injunction  in  any  manner  impair  the  lien  pro- 
duced by  the  issuing  of  the  warrant.    And  the  same  proceedings 
shall  be  had  on  such  injunction  as  in  other  cases,  except  that  no 
answer  shall  be  necessary  on  the  part  of  the  United  States ;  arjd 
if,  upon  dissolving  the  injunction  it  appears  to  the  satisfaction 
of  the  judge  that  the  application  for  the  injunction  was  merely 
for  delay,  the  judge  may  add  to  the  lawful  interest  assessed  on 
all  sums  found  due  against  the  complainant  such  damages  as  with 
such  lawful  interest,  shall  not  exceed  the  rate  of  ten  per  centum 
a  year.    Such  injunction  may  be  granted  or  dissolved  by  the  dis- 
trict judge  either  in  or  out  of  court."  ^ 

"When  the  district  judge  refuses  to  grant  an  injunction  to 
stay  proceedings  on  a  distress-warrant  as  aforesaid,  or  dissolves 
such  injunction  after  it  is  granted,  any  person  who  considers 
himself  aggrieved  by  the  decision  in  the  premises  may  lay  before 
the  circuit  justice,  or  circuit  judge  of  the  court  within  which 
such  district  lies,  a  copy  of  the  proceeding  had  before  the  dis- 
trict judge ;  and  thereupon  the  circuit  justice  or  circuit  judge 
may  grant  an  injunction  or  permit  an  appeal  as  the  case  may  be, 
if,  in  his  opinion  the  equity  of  the  case  requires  it.  The  same 
proceedings,  subject  to  the  same  conditions,  shall  be  had  upon 
such  injunction  in  the  circuit  court  as  are  prescribed  in  the  dis- 
trict court. ■'^ 

The  salutary  provisions  of  the  Clayton  Act  provide,  "Except 

6U.    S.    E.    S.    §3636,    Comp.    St.  7  U.    R.    R.    S.    §3637,   Comp.    St. 

S  6635.  §  6636. 


1454  INJUNCTIONS  [§  297 

as  otherwise  provided  in  section  16  of  this  Act,  no  restraining 
order  or  interlocutory  order  of  injunction  shall  issue,  except 
upon  the  giving  of  security  by  the  applicant  in  such  sum  as  the 
court  or  judge  may  deem  proper,  conditioned  upon  the  payment 
of  such  costs  and  damages  as  may  be  incurred  or  suffered  by  any 
party  who  may  be  found  to  have  been  wrongfully  enjoined  or  re- 
strained thereby. "  * 

The  section  to  which  reference  is  made  is  the  section  regulating 
injunctions  at  the  suit  of  private  persons  against  threatened  loss 
or  damage  by  a  violation  of  the  Anti-Trust  Laws.  This  provides 
that,  "When  and  under  the  same  conditions  and  principles  as 
injunctive  relief  against  threatened  conduct  that  will  cause  loss  or 
damage  is  granted  by  courts  of  equity  under  the  rules  governing 
such  proceedings  and  upon  the  execution  of  proper  bond  against 
damages  for  an  injunction  improvidently  granted  and  a  show- 
ing that  the  danger  of  irreparable  loss  or  damage  is  immediate, 
a  preliminary  injunction  may  issue.  "^ 

This  provision  of  the  Clayton  Act  has  prevented  much  injury 
to  the  property  and  business  of  innocent  defendants.  The  Dis- 
trict Courts,  how^ever,  in  some  instances  have  construed  it  as  not 
applying  to  proceedings  in  bankruptcy. ^°  It  has  been  held,  that 
when  the  matter  restrained  is  the  continuance  of  an  act  which  be- 
fore the  injunction  was  a  contempt  of  the  court  the  statute  does 
not  apply  and  no  bond  is  required. ^^  It  has  been  said,  that  it 
cannot  be  presumed  ' '  that  the  Congress  intended  thereby  to  limit 
or  condition  in  any  way  the  power  of  the  Federal  court  by  means 
of  its  injunction,  any  more  than  by  means  of  proceedings  for  con- 
tempt, to  preserve  and  protect  its  jurisdiction,  acts  or  title  from 
unlawful  impairment  or  destruction. ' '  ^^  Before  the  Clayton  Act 
it  was  not  usual  to  require  security  from  the  United  States  when 
a  preliminary  injunction  was  granted  at  their  request  in  a  suit 
in  which  they  are  plaintiffs.^^  It  was  said  that  a  bond  should  not 
be  required  unless  the  court  was  not  reasonably  satisfied  of  the 

8  Act    of    Oct.    23,    1914,    ch.    23,       Gas  Co.,  C.  C.  A.,  244  Fed.  20,  29. 

§  18,   38    St.   at   L.    738,   Comp.    St.  12  Sanborn,  J.,  in  Swift  v.  Black 

§  1243b.  Panther  Oil  &  Gas  Co.,  C.  C.  A.,  244 

9  Comp.  St.  §  8835(0).  Fed.  20,  29,  30. 

10  Ee  Davis  S.  D.  N.  Y.,  June  10,  13  U.  S.  v.  Jellico,  M.  C.  &  C.  Co., 
1918,  in  which  the  author  was  coun-  43  Fed.  898.  But  see  U.  S.  v.  Do- 
sel.  minion  Oil  Co.,  241  Fed.  425. 

11  Swift   V.  Black  Panther   Oil  & 


§297] 


INJUNCTION    BONDS 


1455 


right  to  the  relief  prayed  and  was  satisfied  that  the  granting  of 
the  injunction  might  cause  irreparable  injurj^  to  the  defendant.^* 
It  was  held  that,  where  there  was  proof  that  the  defendant  had 
been  guilty  of  had  faith  in  connection  with  tlic  subject  of  the 
suit,  no  bond  siiould  be  required. ^^ 

Formerly,  the  court  instead  of  requiring  a  bond  from  tiie  com- 
plainant, sometimes  imposed,  as  a  condition  of  the  injunction  or- 
der, that  he  pay  any  damages  sustained  Ity  tlie  defendant  in  case 
it  should  be  determined  that  the  injunction  should  not  have 
issued. ^^  In  such  a  case,  if  complainant  avails  himself  of  the 
writ,  he  is  bound  by  the  condition;  and,  upon  the  dissolution  of 
the  injunction,  he  may  be  directed  to  pay  the  defendant's  dam- 
ages.^'' In  one  case,  where  no  such  condition  was  reserved,  upon 
the  dissolution  of  a  restraining  order  the  court  directed  the  com- 
plainant to  pay  the  defendant's  damages,  which  it  then  as- 
sessed.^* Whore  the  defendant  to  an  action  at  law  obtained,  after 
verdict,  an  injunction  staying  the  proceedings,  upon  his  giving  a 
bond  for  the  payment  of  the  verdict,  should  the  injunction  be 
dissolved  and  judgment  entered,  it  was  held  that  he  waived  any 
previous  errors  in  the  action  at  law  and  could  not  sue  out  a  writ 
of  error  founded  upon  thcm.^^ 

Other  conditions  have  been  required, ^^*  such  as  the  deposit  of 
money  in  court. ^°  An  injunction  should  not  be  issued  to  re- 
strain the  collection  of  State  taxes,  unless  the  plaintiff  first  pays 
what  is  conceded  to  be  due,  or  what  can  be  seen  to  be  due  on  the 
face  of  the  l)ill  or  be  shown  by  affidavit,  whether  conceded  or 


14  Carpenter  v.  Knollwood  Ceme- 
tery, 195  Fed.  96. 

16  Pasteur  C.  F.  Co.  v.  Funk,  r)2 
Fed.  146,  147. 

16  Mica  Insulator  Co.  v.  Commer- 
cial Mica  Co.,  157  Fed.  92. 

17  Ibid. 

18  National  Plionograjjli  Co.  v. 
American  Grapliaphone  Co.,  136 
Fed.  231. 

19  Leif^h  v.  Kewanee  Mfg.  Co.,  C. 
C.  A.,  147  Fed.  693. 

19»  An  injunction  to  restrain  tlie 
forfeiture  of  a  street  railway  fran- 
chise was  conditioned   upon  security 


liy  the  coini^ilainant  mortgagee;  tliat 
any  defaults  in  the  conditions  tliere- 
of  should  he  jierformed ;  as  to  money 
defaults  by  an  onlinary  bond;  as 
to  default-s  in  (jiiality  of  service  by 
an  agreement  that  the  mortgagee 
would  either  furnish  the  ne-essary 
funds  for  any  new  equipment  or 
other  improvements  reipiired  or  else 
consent  that  roicivcrs"  lertificates 
be  issued  for  such  jmrpose.  -Kniikcr- 
boikor  Tr.  Co.  v.  City  of  Kalimia/nn, 
182  Fed.  S65,  874. 

20  Consolidated  Gas  Co.  v.  May.)r, 
146  Fed.   150,  and  cases  cited  infra. 


1456 


INJUNCTIONS 


[§297 


not.21  This  rule  does  not  apply  to  injunctions  to  restrain  the 
collection  of  municipal  taxes  such  as  license  fees.^^ 

On  account  of  the  magnitude  of  the  liability  in  case  the  in- 
junction is  dissolved  and  the  consequent  danger  of  loss  through 
consequent  insolvency  of  the  principal  and  sureties,  interlocutory 
injunctions  to  restrain  the  execution  of  a  statute  or  order  re- 
ducing the  price  charged  for  a  public  service  usually  are,  and 
always  should  be,  accompanied  by  the  provision  that  the  excess 
over  the  rate  fixed  by  the  statute,^^  or  order,^*  should  be  depos- 
ited in  court  to  abide  the  event  of  the  suit.  In  some  eases,  how- 
ever, such  injunctions  have  been  conditioned  upon  the  keeping 
of  an  account  and  the  execution  of  a  bond.^^ 

Interlocutory  injunctions  against  the  enforcement  of  statutes 
reducing  the  charges  for  freight  or  passengers  have  been  accom- 
panied by  the  provision  that  the  railway  company  should  execute 
a  bond,  conditioned  to  pay  into  the  registry  of  the  court,  at  such 
times  as  ordered,  money  equal  to  the  difference  between  the 
amount  collected  and  that  which  would  have  been  received  had 
the  statute  been  obeyed ;  and  that  each  ticket  buyer  should  re- 
ceive a  coupon  for  the  payment  by  the  registry  clerk  of  the  court 
of  the  excess  stated,  if  the  act  should  be  finally  sustained.^^ 

If  the  language  of  the  order  is  ambiguous  the  bond  may  be 
examined  in  determining  its  meaning,27  but,  the  language  of  the 
bond  cannot  narrow  or  broaden  the  effect  of  the  order.^s 

The  court  often  withholds  an  injunction  to  restrain  the  in- 
fringement of  a  patent,^^  or  copyright,^**  and  in  other  cases,'i 
upon  the  filing  of  a  bond  by  the  defendant.    This  is  the  proper 


21  State  Eailroad  Tax  Cases,  92 
U.  S.  575,  617,  23  L.  ed.  663,  674; 
National  Bank  v.  Kimball,  103  TJ.  S. 
732,  26  L.  ed.  469;  Albuquerque 
Nat.  Bank  v.  Perea,  147  U.  S.  87,  37 
L.  ed.  91;  Parmley  v.  Railroad  Cos., 
3  Dill.  25;  Huntington  v.  Palmer, 
8  Fed.  449;  supra,  §  153. 

22  See  Sperry  &  Hutchinson  Co.  v. 
City  of  Tacoma,  205  Fed.  241. 

23  Buffalo  Gas  Co.  v.  Buffalo,  156 
Fed.  370;  Lincoln  Gas  Co.  v.  Lin- 
coln, 223  U.  S.  349,  56  L.  ed.  466; 
San  Francisco  Gas  &  El.  Co.  v.  City 
and  County  of  San  Francisco,  164 
Fed.  884;   Pacific  Tel.  &  Tel.  Co.  v. 


City  of  Los  Angeles,  192  Fed.  1009. 
24Pac.  Gas  &  El.  Co.  v.  San 
Francisco.  211  Fed.  202;  Arkadel- 
phia  Milling  Co.  v.  St.  Louis  S.  Co., 
249  U.  S.  134. 

25  Hunter  v.  Wood,  209  U.  S.  205, 
207,  52  L.   ed.   747,  748. 

26  Arkadelphia  Milling   Co.   v.   St. 
Louis,  s.  c,  249  U.  S.  134. 

27  J.   L.    Owens   Co.   v.   Officer,   C. 
C.  A.,  244  Fed.  47,  51. 

28  Ibid. 

£9  Supra,   §  277. 

30  Supra,    §  278. 

31  Supra,    §§279,    280. 


§  298]  COLLECTIOX    OF    IXJUJs'CTIOX    BONDS  1437 

praetiee  in  suits  against  vendors  of  articles  infringing  a  patent 
when   a  preliminary   injunction   has  been  granted  against  the 
manufacturer  in  a  suit  which  will  soon  be  reached  for  final  hear- 
ing.32     Sometimes  the  injunction  is  withheld  upon  the  defend- 
ant's merely  undertaking  to  keep  an  account  of  his  sales  during 
the  pendency  of  the  suit.^^     In  England,  injunctions  have  been 
withheld  in  other  cases  upon  tiie  defendants  giving  undertakings 
to  abide  by  the  further  order  of  the  court.^^     The  court  cannot 
compel  the  defendant  to  give  a  bond  if  he  prefers  to  be  enjoined. 
§  298.  Collection  of  injunction  bonds.     It  has  been  held  at 
circuit,  that  when  tiie  court  upon  the  final  hearing  dissolves 
an  injunction  previously  granted,  or  grants  an  injunction  pre- 
viously denied  upon  the  giving  of  a  bond  or  undertaking,  the 
successful  party  can  have  his  damages  assessed  and  the  bond  or 
undertaking  enforced  by  the  court  in  the  same  suit,  without  be- 
ing required  to  ])ring  a  new  action  at  law.^    Where  the  amount 
of  the   recovery   is  uncertain,  the  sureties   should   have  notice 
of  the  application  to  enforce  the  bond.^     It  has  been  held  that 
the  court  has  the  discretionary  power  either  summarily  to  de- 
termine the  liability,  or  to  remit  the  defendant  to  an  action  at 
law.^    Where  a  State  court  first  assumes  jurisdiction  the  Federal 
court  should  not  interfere.* 

32Kryptok  Co.  v.  Harris,  216  Fcil.  Moore,  25  Beav.  8;   Sugden  v.  Hull. 

g42.       '  28  Beav.  26.3.     Contra,  Curtis,  J.,  In 

33Furbush    v.    Bradford,    1    Fish.  Merryfield    v.    .Jones,    2    Curt.    306; 

Pat.    Cas.    317;    McCrary    v.    Pcnn.  West  v.  East  Coast  Cedar  Co.,  C.  C. 

C.  Co.,  5  Fed.  367;  Mclntyre  v.  W.  A.,  113  Fed.  742.     See  also  Bein  v. 

U.   Tel.   Co.,   113   Fed.   1022,   supra,  Heath,  12  How.  168,  13  L.  ed.  939; 


§277. 


Cimiotti  Unhairing  Co.  v.  Am.  Fur 


34Atty.  Gen.  v.  M.  &  L.  Ry.  Co.,  Refining  Co.,  158  Fed.  171;  aff'd  C. 

1   (Eng.)   Ry.  Cas.  436;  Jones  v.  G.  C.  A.,  168  Fed.  529,  where  the  bond 

W.  Ry.  Co.,  1  (Eng.)  Ry.  Cas.  684.  provided  that  the  damage  should  be 

§298.     ILea  v.  Deakin,   13  Fed.  "ascertained     as     the     court     shall 

514;    Coosaw  Min.   Co.  v.  Farmers'  direct." 

Min.    Co.,    51    Fed.    107;    Lamb    v.  2  Coosaw   M.   Co.   v.   Carolina   M. 

Ewing,  C.  C.  A.,  54  Fed.  269 ;  U.  S.  Co.,  74  Fed.  860 ;   Leslie  v.  Brown, 

Fidelity   &  Guaranty  Co.   v.   Burke,  C.  C.  A.,  90  Fed.   171. 

C.  C.  A.,  238  Fed.   ^81,  supi-a,  S  51.  3  Sperry  &  Hutchinson  Co.  v.  City 

See  also  Russell  v.  Farley,  105  IT.  S.  of   Tacoma,   205   Fed.   641 ;    Redlich 

433,  26  L.  ed.  1060 ;  Leslie  v.  Brown,  Mfg.    Co.   v.   John    H.    Rice   &    Co.. 

C.    C.    A.,   90   Fed.   171;    Deakin   v.  203  Fed.  723;  Baker  &  Bennett  Co. 

Stanton,    3    Fed.    435;     Grundy    v.  v.    N.    D.    Cass    Co.,    C.    C.    A..    '2'24 

Young,  2  Cranch.  C.  C.  114;  Bentley  Fed.  439. 

V.    JosUn,    Hempst.    218;    Moore    v.  4  See  Sperry  &  Hutchinson  Co.  v. 


1458  INJUNCTIONS  [§  298 

A  District  Court  has  jurisdie'tion  of  an  action  at  law  upon 
the  bond  where  it  exceeds  $3,000,  irrespective  of  the  citizenship 
of  the  parties,  because  the  suit  arises  under  the  laws  of  the 
United  States^  and  irrespective  of  the  residence  of  the  parties 
because  it  is  within  the  ancillary  jurisdiction  of  the  court.^  The 
liability  on  the  bond  is  not  fixed  until  the  final  decree,'^  although 
the  injunction  is  previously  dissolved,  since  the  plaintiff  might 
show  upon  the  final  hearing  that  the  writ  was  in  fact  justified.* 
It  has  been  held  that  no  action,^  or  proceeding  to  ascertain  and 
collect  the  damages,i°  can  be  maintained  upon  the  bond  until 
that  time,"  and  until  then  the  court  has  power  to  modify  or 
relax  the  condition  of  the  bond  or  to  discharge  the  same  when 
the  equities  require  it.^^  The  validity  of  the  injunction  bond  is 
not  affected  by  the  fact,  that  it  was  dated  prior  to  the  order, 
where  the  sureties  justified  and  the  bond  was  filed  after  the 
order  was  madc^^  Where  an  appeal  from  the  injunction  order 
was  dismissed  because  the  controversy  had  become  moot  between 
the  parties,  it  was  held  that  there  could  be  no  recovery  upon  the 
nond.i*  The  bond  or  undertaking  inures  to  the  benefit  of  tne 
defendant  who  suffers  injuries,  irrespective  of  the  exact  time 
when  he  has  knowledge  of  the  pendency  of  the  action  or  ap- 
pears therein.15  The  fact  that  the  defendant  is  a  woman,  and 
that  tbe  undertaking  is  to  make  good  to  the  defendant  "all 
damages  by  him  suffered,"  does  not  debar  her  from  recovering 
thereupon. 1^ 

City  of  Taeoma,  205  Fed.  641,  supra,  171  Fed.  223;   Ashville  C.  &  St.  L. 

R  57  Ry.    V.    Eailroad    Commission,    171 

5  Leslie  v.  Brown,  90  Fed.  171.  Fed.  223. 

6  Lonis.  &  Nash.  E.  E.  Co.  v.  Gar-  12  Eussell  v.  Farley,  10.5  U.  S.  433, 
rett,  231  U.   S.  300.  26  L.  ed.  1060;   Southern  Ey.  Co.  v. 

7  Nashville  C.  &  St.  L.  Ey.  v.  Eailroad  Commission  of  Alabama, 
Eailroad  Commission  of  Alabama,  196  Fed.  558;  Cf.  Allen  v.  Jones, 
171  Fed.  223;  Southern  Ey.  Co.  v.  79  Fed.  698;  Leigh  v.  Kewanee  Mfg. 
Eailroad    Commission    of    Alabama,  Co.,  C.  C,  A.,  147  Fed.  693. 

196  Fed.  558.  13  Sailors'  Union  of  the  Pacific  v. 

8  Eeadlick  Mfg.  Co.  v.  John  H.  Hammond  Lumber  Co.,  C.  C.  A.,  156 
Eice  &  Co.,   203   Fed.   722.  Fed.   450. 

9  Mississippi  Valley  Fuel  Co.  v.  14  Clark  v.  Fairbanks,  C.  C.  A., 
Watson  Coal  Co.,  C.  C.  A.,  202  Fed.  249  Fed.  431. 

T  22.  15  Hutchins    v.    Munn,    209    U.    S. 

10  Eeadlick  Mfg.   Co.   v.   John   H.       246,  52  L.  ed.  776. 

Eice  &  Co.,  203  Fed.  722.  16  Hutchins    v.    Munn,    209    U.    S. 

11  Nashville,   C.   &   St.    L.   Ey.    v.       246,  52  L.  ed.  776. 
Eailroad    Commission    of    Alabama, 


§  298]  COLLECTIOX    OF    INJUNCTION    BONDS  1459 

It  is  the  duty  of  the  court,  upon  tlie  dismissal  of  the  suit,  to 
determine  whether  the  comphiinant  was  entitled  to  the  tem- 
porary injunction  or  to  adjudicate  ui)on  the  liability  of  the 
bond.^"  Wiiere  the  suit  had  been  dismissed  and  the  injunction 
vacated  without  a  cancellation,  it  was  held  that  llie  Federal  court 
could  not  cancel  the  bond  after  a  suit  had  been  bejiun  in  a  State 
court  to  collect  it.^^  Before  the  Clayton  Act  which  reipdres 
bonds  to  be  given  upon  the  issue  of  temporary  injunction,  it  was 
held:  that  the  liability  upon  an  undertaking  to  secure  a  tem- 
porary restraining  order  did  not  extend  to  damages  which  arose 
after  a  temporary  injunction  was  granted. ^^  and  that  damages 
arising  from  the  restraint  of  a  permanent  injunction,  after- 
wards reversed,  could  not  be  recovered  against  the  surety  of  a 
bond  given  to  secure  a  temporary  injunction. 2°  Where  the 
bond  was  conditioned  that  the  complainant  should  "abide  the 
decision  of  the  court  and  pay  all  damages  and  costs  which  shall 
be  adjudged,  against  him,  because  of  the  granting  of  said  in- 
junction in  case  said  injunction  shall  be  dissolved,  then  this  ob- 
ligation shall  bo  void;  otherwise  to  remain  m  full  force  and 
virtue;''  it  was  held  that  the  surety  was  not  liable  for  any 
amount  which  the  court  directed  the  complainant  to  pay  which 
was  not  part  of  the  damages  or  costs  caused  by  granting  the 
injunction. 2^ 

When  the  injunction  is  sustained  in  part  and  dissolved  in 
part,  the  surety  may  be  liable  for  the  damages  caused  by  so 
much  thereof  as  was  dissolved. ^^  But  not  where  the  dissolu- 
tion was  because  the  injunction  had  fully  performed  its  office 
and  there  was  no  decision  that  it  had  been  improvidently  issued.^ 
Then  the  bond  contained  the  following  coi/dition,  "Now,  there- 
fore, if  the  said  Joseph  W.  Woolfolk  shall  abide  the  decision 
of  said  court,  and  pay  all  damages  and  costs  which  shall  be 

n  Jewel   Tea   Co.   v.   Plant,   C.   C.  21  Woolfolk    v.     .Fonos,    216    Fed. 

A.,  240  Fed.  94.5.  807,  reversed  on  another  point  Am. 

18  Sperry  &  Hutchinson  Co.  V.  City  Surety  Co.  v.  Jones.  C.  C.  A.,  221 
of  Taeoma,  205  Fed.  641.  Fed.   67.3. 

19  Houghton  V.   Meyer,  208  U.  S.  22  Ibid. 

149.  23  Am.  Surety  Co.  v.  Jones,  C.  C. 

20  St.   Louis  T.  Mt.  &  So.  Ry.  Co.       A.,  224  Fed.  67."?. 
V.  MafKnight,  244  U.  S.  368;  Arka- 

delphia  Milling  Co.  v.  St.  Louis  Ry. 
Co..  249  IT.  S.  134,  139. 


1460 


INJUNCTIONS 


[§298 


adjudged  against  him  because  of  the  granting  of  said  injunction, 
in  case  said  injunction  shall  be  dissolved,  then  this  obligation 
shall  be  void ;  otherwise  to  remain  in  full  force  and  virtue. ' '  ^* 
It  is  the  better  pi-actice  to  make  the  surety'  a  party  to  an  appli- 
cation for  the  cancellation  of  the  bond.^^  Upon  the  reversal 
of  the  decree  for  a  perpetual  injunction,  which  released  the  bonds 
upon  the  preliminary  injunction  and  discharged  the  sureties 
from  further  liability,  if  the  mandate  allows  further  proceed- 
ings, the  District  Court  may  enter  a  decree  for  damages  against 
the  sureties  although  the  part  of  the  decree  affecting  them  was 
not  appealed  from,  nor  referred  to  in  the  asfjignments  of  error.^^ 
The  State  statutes  regulating  liability  upon  injunction  bonds 
are  not  followed  by  the  Federal  courts.^''^  Only  proximate  dam- 
ages'can  be  recovered  upon  the  bond  or  undertaking.  Remote, 
conjectural  and  speculative  damages,  are  disallowed.^^     When 


24  Woolfolk  V.  Jones,  216  Fed.  809. 

25  Williams  v.  O 'Toole,  C.  C.  A., 
211  Fed.  484. 

26  Arkadelphia  Milling  Co.  v.  St. 
Louis  S.  W.  Ey.  Co.,  249  U.  S.  1:54. 

27  R.  M.  Rose  Co.  V.  Southern  Ex- 
press Co.,  22.3  Fed.  868;  Vrooman  v. 
Burdick,  C.  C.  A.,  222  Fed.  900. 

28  Smith  v.  Day,  21  Ch.  D.  421; 
Chicago  C.  R.  Co.  v.  Howison,  86 
111.  215;  Hotchkiss  v.  Piatt,  8  Hun 
(N.  Y.)  46;  Livingston  v.  Exum, 
19  S.  C.  223.  See  Swift  &  Co.  v. 
Kortrecht,  C.  C.  A.,  112  Fed.  709; 
Baer  v.  Fidelity  &  D.  Co.,  130  Fed. 
94.  Where  the  injunction  forbade 
interference  with  the  possession  of 
personal  property,  it  was  held  that 
the  defendant  upon  the  dissolution 
could  recover  all  damages  caused  by 
his  delay  in  obtaining  possession  of 
the  property,  including  any  loss 
caused  by  a  fall  in  the  market  price, 
if  it  had  a  market  price  and  could 
have  been  sold  at  once  on  the  market 
for  a  sum  nearly  equal  to  its  value, 
but  not  if  it  had  no  market  price 
and  could  not  have  been  sold  imme- 
diately for  a  sum  ' '  anything  like  its 


value ; ' '  and  that  the  price  which 
the  defendant  might  have  made  by 
the  use  of  the  projjerty  in  his  busi- 
ness was  too  remote  and  speculative 
to  be  recovered.  Lehman  v.  Mc- 
Quown,  31  Fed.  138.  It  has  been 
held:  that  an  injunction  bond  in 
an  action  in  the  District  Court  of 
the  United  States  for  the  District  of 
Louisiana,  conditioned  that  the 
obligors  ' '  will  well  and  truly  pay 
the"  obligee,  "defendant  in  said  in- 
junction, all  such  damages  as  he  may 
recover  against  us,  in  case  it  should 
be  decided  that  the  said  writ  of  in- 
jurction  was  wrongfully  issued," 
which  bond  was  made  under  an  or- 
der of  the  court  "that  the  injunc- 
tion be  maintained  on  the  complain- 
ing creditor 's  giving  bond  and  se- 
curity to  save  the  parties  harmless 
from  the  effects  of  said  injunction, ' ' 
is  a  sufficient  compliance  with  the 
order  of  the  court,  and  when  con- 
strued with  reference  to  the  rule 
prevailing  in  the  Federal  courts 
(contrary  to  that  prevailing  in  the 
State  courts  of  Louisiana),  that 
without  a  bond  and  in  the  absence 


§298] 


COIiLECTIOX    OF    INJUNCTION    BONDS 


1461 


the  injunction  forbids  the  collection  of  money,  interest  during 
the  delay  thus  caused,  is  usually  awarded,  besides  the  added  costs 
of  the  suit  in  equity. ^^  When  the  injunction  compelled  the 
discontinuance  of  all  the  defendant's  business  he  was  allowed  to 
recover  the  rent  of  his  factory,  the  depreciation  in  his  machinery, 
equipment,  boxes  and  labels. 3°  When  the  injunction  enjoined 
a  house  owner  from  completing  alterations,  without  which  the 
house  was  only  partly  habitable,  she  was  allowed  to  recover  on 
the  undertaking  the  reasonable  rental  value  of  the  house  for  the 
season.^^  Possession  of  property  under  claim  of  title,  with  the 
accompan.ving  presumptive  right  of  ownership,  carries  with  it  a 
right  to  the  use  and  enjoyment  of  such  property  until,  by  due 
process  of  law  and  after  full  hearing,  it  has  been  finally  adjudged 
that  such  claims  of  title  is  unfounded.^^ 

When  an  order  restrained  the  Postmaster  General  from  refus- 
ing to  transmit  mail  at  second-class  rates,  the  liability  on  the 
undertaking  was  the  diflference  in  postage  on  the  matter  mailed, 
while  the  restraining  order  was  in  force.^^ 


of  malice  no  damages  can  be  re- 
covered in  such  case,  means  that 
the  obligors  will  pay  such  damages 
as  the  obligee  may  recover  against 
thorn  in  a  suit  on  the  bond  itself, 
whether  incurred  before  or  after  the 
giving  of  the  bond.  Meyers  v. 
Block,  120  U.  S.  206,  30  L.  ed.  642. 
For  a  case  where  the  defendant  was 
not  permitted  to  give  bond  see 
Crown  Cork  &  Seal  Co.  v.  N.  Y. 
Specialty  Co.,  206  Fed.  679;  Kint- 
ner  v.  Marconi  Wireless  Tel.  Co., 
C.  C.  A.,  215  Fed.  104.  For  a  case 
where  it  was  not  required  to  give 
bond,  see  Cincinnati  Exhibition  Co. 
V.  Marsons,  216  Fed.  269.  See  su- 
pra, §  277. 

29Woolfolk  V.  Jones,  216  Fed. 
807. 

30  Grushlaw  v.  Phoenix  Knitting 
Works,  C.  C.  A.,  223  Fed.  513.  Sev- 
ered on  another  point  in  Am.  Surety 
Co.  V.  Jones,  C.  C.  A.,  224  Fed. 
673. 

Fed.  Prac.  Vol.  11—22 


31  Ilutchins  v.  Munn,  209  U.  S. 
246,  52  L.  ed.  776. 

32  Cincinnati  Exhibition  Co.  v. 
Marsons,  216  Fed.  269;  Sheffield  Gas 
&  El.  Co.  V.  Barker,  231  Fed.  331; 
Twenty-One  Mining  Co.  v.  Origi- 
nal Sixteen  to  One  Mine,  C.  C.  A., 
240  Fed.  106,  107;  U.  S.  v.  Domin- 
ion Oil  Co.,  241  Fed.  425;  Pro- 
ducers' Oil  Co.  V.  U.  S.,  C.  C.  A., 
245  Fed.  651.  But  see  Barber  v. 
Otis  Motor  Sales  Co.,  247  Fed.  553. 
In  a  suit  by  a  minority  stockholder 
to  enjoin  a  sale  of  the  corporation's 
assets,  where  it  appeared  that  the 
complainant's  damage,  if  any,  was 
purely  pecuniary;  it  was  held  to  be 
proper  for  the  court  to  authorize  the 
substitution  of  a  bond  by  the  de- 
fendant, instead  of  a  preliminary 
injunction.  Jackson  Co.  v.  Gardi- 
ner Inv.  Co.,  C.  C.  A.,  200  Fed.  113. 
See  supra,  §  145. 

88  Houghton  v.  Meyer,  208  U.  S. 
149,  52  L.  ed.  432. 


1462 


INJUNCTIONS 


[1^98 


It  has  been  held  by  the  Supreme  Court  that  the  fees  of  counsel 
in  procuring  the  dissolution  of  the  injunction  cannot  be  in- 
cluded in  the  damages  upon  the  bond.^*  This  decision  is,  how- 
ever, in  conflict  with  the  weight  of  authority  in  the  United 
States.36  The  court  might  direct  the  insertion  of  a  clause  in 
the  bond  providing  that  counsel  fees  should  be  included  in 
the  damages.  The  liability  of  the  complainant  is  limited  to 
the  amount  of  the  bond.^e  It  has  been  held  that  no  further 
damages,^'''  interest  nor  costs,38  can  be  awarded  against  him. 

It  has  been  held:  that  where  no  security  is  given,  the  de- 
fendant has  no  remedy  to  recover  damages  caused  by  an  in- 
junction improperly  issued,  unless,  perhaps,  where  the  facts  will 
support  an  action  for  malicious  prosecution.^^  It  seems  to  be 
doubtful  in  England,  whether  the  undertaking  can  be  enforced 
upon  the  dissolution  of  the  injunction  on  the  ground  that  the 
court  erred  as  to  the  law." 

An  injunction  bond,  which  is  expressed  to  be  solely  for  the 
benefit  of  the  defendant,  imposes  no  liability  upon  the  surety 
for  damages  caused  by  the  injunction  to  a  person  not  a  party 
to  the  suit.*i  But,  where  the  condition  was  for  the  payment  of 
all  damages  and  costs  which  should  be  adjudged  against  com- 
plainant, the  master  and  stenogi'apher  were  allowed  to  recover 
from  the  surety  their  claims.*^  It  has  been  held  that  a  city  is 
the  proper  party  to  represent  subscribers  for  the  telephone  serv- 
ice upon  a  reference  to  determine  their  share  in  a  fund  depos- 
ited by  the  telephone  company  as  security  upon  ihe  issue  of  an 


34  0elrichs  v.  Spain,  15  Wall.  211, 
21  L.  ed.  43;  Covington  County  v. 
Stevens,  C.  C.  A.,  256  Fed.  328.  This 
rule  has  been  applied  to  an  action 
upon  an  injunction  bond,  given  in  a 
court  in  the  territory  of  Alaska. 
Lindeberg  v.  Howard,  C.  C.  A.,  146 
Fed.  467. 

35  See  High  on  Injunctions, 
§  1685,   and  cases  cited. 

36  Cimiotti  Unhairing  Co.  v.  Am. 
Fur  Eefining  Co.,  C.  C.  A.,  168  Fed. 
529;   affirming  158  Fed.  171. 

37  Ibid. 

38  Ibid. 

39Schek   v.   Kelly,    95   Fed.    941; 


City  of  St.  Louis  v.  St.  Louis  Gas- 
light Co.,  82  Mo.  354.  Contra,  Na- 
tional Phonograph  Co.  v.  Am. 
Graphophone  Co.,  136  Fed.  231.  See 
siipra,   §297. 

40  Smith  V.  Day,  21  Ch.  D.  421, 
424,  426,  428,  429,  431.  But  see 
Novello  V.  James,  5  De  G.,  M.  &  G. 
876. 

41  Hays  V.  Fidelity  &  D.  Co.,  C. 
C.  A.,  112  Fed.  872. 

42  Woolfolk  V.  Jones,  216  Fed.  807, 
reversed  on  another  point  Am. 
Surety  Co.  v.  Jones,  C.  C.  A.,  224 
Fed.  673. 


§  299] 


PERPETUAL    I N  J  U  X CTION S 


14G3 


injunction  against  a  reduction  of  its  charges."  The  surety 
cannot,  pending  an  ai)i)eal  from  a  decree  for  the  defendant  to 
tlic  injunction  suit,  maintain  a  bill  of  quia  timet  to  obtain  in- 
demnity from  the  principal  before  the  bond  ha.s  been  paid  or 
the  amount  of  the  liahiliiy  Ihcrcupon  has  been  adjudicated.** 

§  299.  Perpetual  injunctions.  Perpetual  injunctions  can 
only  be  granted  at  the  entry  of  a  decree.^  It  is  irregular  to 
grant  one  upon  afifidavit.^  In  patent,  trade-mark  and  copyright 
cases,  however,  injunctions  that  are  permanent  until  the  expira- 
tion of  the  plaintiff's  monopoly  are  often  granted  by  an  inter- 
locutory decree  which  also  directs  a  reference  to  a  master  for 
an  accounting;  3  but  the  court  has  the  power  to  suspend  the 
injunction  until  an  appeal  can  be  heard.*  A  perpetual  injunc- 
tion is  either  originally  granted,  or  continued.  They  may  be 
granted  originally  in  all  cases  in  which  temporary  injunctions 
might  have  been  granted,  and  also  to  restrain  the  setting  up  of 
outstanding  terms  when  it  would  be  inequitable  to  do  so,*  An 
application  for  an  injunction  to  restrain  the  breach  of  a  covenant 
to  furnish  water-power  "for  all  time''  was  denied  because  it 
would  be  in  ett'eet  a  decree  for  specific  performance  under  th^ 
constant  supervision  of  the  courts.^ 

In  order  to  obtain  a  perpetual  injunction,  it  is  not  necessary 
that  a  provisional  injunction  should  have  been  asked  for.'  For 
after  the  commencement  of  a  suit  asking  to  prevent  an  act  upon 
the  defendant's  part,  he  is  said  to  proceed  at  his  peril,  and  if 
the  court  finally  decides  in  favor  of  the  plaintiff  it  ma}-  order 
him  to  undo  the  result  of  his  acts  since  he  first  had  notice  of  the 
suit.^    A  perpetual  injunction  may  bo  obtained  in  a  case  where  a 


43  In  ro  Enjjlehard,  2.^1  U.  S.  646. 

44  Am.  B.  &  Tr.  Co.  v.  Logans- 
I)ort  &  M.  G.  Co.,  9;1  F(m1.  49. 

§299.  IDaniell's  Ch.  Pr.  (2a 
Am.  ed.)    190.3. 

2  Adams  v.  Crittenden,  17  Fed. 
42. 

3  Rumford  Chem.  Works  v.  Heck- 
er,  11  Off.  Gaz.  .3:}0;  Brown  v. 
Deere,  6  Fed.  484;  s.  c,  2  McCrary, 
425. 

4  Barnard  v.  Gibson,  7  How.  650, 
658,  12  L.  ed.  857,  860;  Potter  v. 
Mack,  3  Fish.  428;   Brown  v.  Deere, 


6   Fed.   487;    Munson   v.    Mayor,   19 
Fed.   313. 

5  Askew  V.  Poulterers '  Co.,  2  Ves. 
Sen.  89;  Duke  of  Buekingham  v. 
Duchess  of  Buckiiigliam,  2  Eq.  Cas. 
Abr.  527. 

6  York  Haven  Water  &  Power  Co. 
V.  X.  Y.  Haven  Pain-r  Co.,  C.  C.  A.. 
201   Fed.  220. 

7  Darnell's  Ch.  Pr.  (2d  Am.  ed.) 
10(10.  See  also  Bailey  v.  Taylor,  1 
R.  &  M.  73. 

8  Charles  River  Bridge  v,  Warren 
Bridge,  6  Pick.   (Mass.)   376;   Wing 


1464 


INJUNCTIONS 


[§300 


preliminary  injunction  has  been  asked  for  and  refused,  or  ob- 
tained and  dissolved.®  If,  however,  the  plaintiff  has  not  previ- 
ously obtained  a  preliminary  injunction,  and  at  the  hearing 
fails  to  make  out  a  clear  title,  he  usually  will  not  be  allowed 
to  use  the  facts  proved  by  him,  as  evidence  of  a  prima  facie 
ease,  entitling  him  then  to  a  temporary  injunction  till  he  can 
establish  his  case  beyond  a  doubt ;  ^^  unless  indeed,  the  injunc- 
tion sought  be  one  that  is  never  granted  before  a  hearing." 
Perpetual  injunctions  may  continue  or  extend  and  make  per- 
petual preliminary  injunctions  at  the  hearing.  This  can  only 
be  done  by  inserting  a  direction  to  that  effect  in  the  decree.^^ 
In  order  to  support  a  decree  for  a  perpetual  injunction,  it 
has  been  said  that  the  court  requires  that  there  should  be  noth- 
ing like  a  doubt  in  the  case.^^  The  granting  of  such  an  in- 
junction is  in  the  discretion  of  the  court,  and,  like  a  provisional 
injunction,  it  may  be  allowed  i*  or  refused  ^^  upon  terms.  On 
account  of  the  weight  as  a  precedent  given  to  a  decree  for  a 
permanent  injunction  in  a  patent  case,  the  court  may  refuse  to 
grant  one  when  the  case  has  been  compromised  and  the  de- 
fendant abandons  it  at  the  hearing. ^^ 

§300.  Appeals  from  injunction  orders.  "Where  upon  a 
hearing  in  equity  in  a  district  court,  or  by  a  judge  thereof  in 
vacation,  an  injunction  shall  be  granted,  continued,  refused,  or 
dissolved  bj^  an  interlocutory  order  or  decree,  or  an  application 
to  dissolve  an  injunction  shall  be  refused,  or  an  interlocutory 
order  or  decree  shall  be  made  appointing  a  receiver,  an  appeal 
may  be  taken  from  such  interlocutory  order  or  decree  granting. 


V.  Fairhaven,  8  Cush.  (Mass.)  363; 
Winslow  V.  Nayson,  113  Mass.  411 ; 
Smith  V.  Day,  L.  E.  13  Ch.  D.  G51. 
9Danieirs  Ch.  Pr.  (2d  Am.  ed.) 
1900;  Bailey  v.  Taylor,  1  R.  &  M. 
73 ;  Bacon  v.  Spotteswoode,  1  Beav. 
382;  Bacon  v.  Jones,  4  M.  &  C.  433; 
Tucker  v.  Carpenter,  Hempst.  440. 

10  Bacon  v.  Spotteswoode,  1  Beav. 
382;  s.  c,  on  appeal  suh  nom.  Ba- 
con V.  Jones,  4  M.  &  C.  433,  438; 
Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1901. 

11  Daniell's  Ch.  Pr.   (2d  Am.  ed.) 
1901.     See  supra,  §  287. 


12  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1902;  Gardner  v.  Gardner,  87  N.  Y. 
14.     Supra,  §  296. 

13  Whittingham  v.  Woler,  2 
Swanst.,  428n;  Troy  &  B.  R.  Co.  v. 
Boston  H.  T.  &  W.  Ry.  Co.,  86  N.  Y. 
107;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1900. 

14  Southern  Exp.  Co.  v.  St.  Louis, 
I.  M.  &  S.  Ry.  Co.,  10  Fed.  210; 
s.  c,  10  Fed.  869. 

15  McCrary  v.  Penn.  Canal  Co.,  5 
Fed.  367;  Brown  v.  Deere,  M.  &  Co., 
6  Fed.  487. 

16  Hayes  v.  Leton,  5  Fed.  521. 


§300J 


APPEALS    FROM    IXJUXCTIOX    ORDERS 


1465 


continuing,  ]-efn.sing,  dissolving,  or  refusing  to  dissolve,  an  in- 
junction, or  appointing  a  receiver,  to  the  circuit  court  of  ap- 
peals, notwithstanding  an  appeal  in  such  case  might,  upon  final 
decree  under  the  statutes  regulating  the  same,  be  taken  directly 
to  the  Supren'e  Court:  Provided,  That  the  appeal  must  be 
taken  within  thirty  days  from  the  entry  of  such  order  or  decree, 
and  it  shall  take  precedence  in  the  appellate  court ;  and  the  pro- 
ceedings in  other  respects  in  the  court  below  shall  not  be  stayed 
unless  otherwise  ordered  by  that  court,  or  the  appellate  court,  or 
a  judge  thereof,  during  the  pendency  of  such  appeal :  Provided, 
however,  Tliat  the  court  below  may,  in  its  discretion,  require  as 
a  condition  of  the  appeal  an  additional  bond."^  In  the  case 
of  an  injunction,  the  appeal  will  lie  from  any  order  granting, 
continuing,  refusing,  dissolving,  or  refusing  to  dissolve  the 
same.'^ 

The  Act  of  June  18,  1910,  regulating  the  practice  upon  mo- 
tions for  interlocutory  injunctions  "suspending  or  restraining 


§  300.  1  Jud.  Code,  §  129,  36  St. 
at  L.  1087.  Under  the  former  stat- 
ute, which  only  authorized  appeals 
' '  from  such  interlocutory  order  or 
deoree  granting  or  continuing  such 
injunction,  or  ajipointing  such  re- 
ceiver," it  was  held  that  orders 
were  not  appealable  which  denied 
motions  to  dissolve  an  injunction 
without  specifically  providing  for 
the  continuance  of  the  same.  Pio- 
neer Lace  Mfg.  Go.  v.  Dodd,  C.  C. 
A.,  181  Fed.  688;  Lewis  v.  Hitch- 
man  Coal  &  Coke  Co.,  C.  C.  A.,  176 
Fed.  549.  But  that  appeals  would 
lie  from  an  order  which  expressly 
continued  the  injunction  upon  a  mo- 
tion for  a  rehearing,  Armat  Moving 
Picture  Co.  v.  Edison  Mfg.  Co.,  C. 
C.  A.,  125  Fed.  939,  from  an  order 
repeating  an  outstanding  injunction 
without  reference  to  the  same, 
Louis  Metzger  &  Co.  v.  Berlin,  C. 
C.  A.,  194  Fed.  426;  and  from  a 
final  order  which  when  dissolving 
an  injunction  determined  that  the 
complainant  had  no  right  to  any  re- 


lief in  the  suit  although  it  did  not 
in  terms  dismiss  the  bill.  Bailey 
V.  Willeford,  C.  C.  A.,  131  Fed.  242. 
It  was  also  held  that  the  complain- 
ant could  not  appeal  from  an  order 
modifying  an  injunction  which  it 
had  obtained.  Vicksburg  "Water- 
works Co.  V.  Mayor,  etc.,  of  Vicks- 
burg, C.  C.  A.,  153  Fed.   116. 

The  jurisdiction  of  the  Circuit 
Court  of  Appeals  for  the  Ninth  Cir- 
cuit of  an  appeal  from  an  interlocu- 
tory order  granting  or  dissolving  an 
injunction,  or  refusing  to  grant  or 
dissolve  an  injunction,  under  Code 
Alaska,  §  507,  giving  the  right  of 
appeal  from  such  orders  without 
limitations  as  to  the  amount  in- 
volved, is  not  limited  by  the  provi- 
sion of  section  504  of  such  Code  re- 
specting appeals  from  final  judg- 
ments or  orders,  which  limits 
such  appeals  to  cases  in  which  the 
amount  or  value  involved  exceeds 
$500.  J.  P.  Jorgenson  Co.  v.  Rapp, 
157  Fed.  732. 

2  Ibid. 


1466 


INJUNCTIONS 


[§300 


the  enforcement,  operation,  or  execution  of  anj'  statute  of  a 
State  by  restraining  the  action  of  any  officer  of  such  State  in 
the  enforcement  or  execution  of  such  statute,  or  in  the  enforce- 
ment or  execution  of  an  order  made  by  an  administrative  board 
or  commission  acting  under  and  pursuant  to  the  statutes  of 
such  State, "3  provides  that  "an  appeal  may  be  taken  direct 
to  the  Supreme  Court  of  the  United  States  from  the  order, 
granting  or  denying,  after  notice  and  hearing,  an  interlocutory 
hijunction  in  such  case."*  Upon  such  an  appeal  the  Supreme 
Court  has  jurisdiction  to  review  the  whole  ease  including  the 
question,  whether  the  statute  or  order  attacked  is  obnoxious  to 
the  State  constitution.^  The  Circuit  Court  of  Appeals  has  no 
jurisdiction  of  an  appeal  from  such  an  order.^ 

^rhe  Act  of  October  22,  1913,  providing  for  the  practice  upon 
application  for  interlocutory  injunctions  suspending  or  restrain- 
ing the  enforcement,  operation  or  execution  of  setting  aside  in 
whole  or  in  part,  any  order  made  or  entered  by  the  Interstate 
Commerce  Commission,  provides:  "an  appeal  may  be  taken  di- 
rect to  the  Supreme  Court  of  the  United  States  from  the  order 
granting  or  denying  after  notice  and  hearing,  an  interlocutory 
hijunction,  in  such  case  if  such  appeal  be  taken  within  thirty 
days  after  the  order,  in  respect  to  which  complaint  is  made,  is 
granted  or  refused. ' '  "^ 

' '  It  was  no  doubt  because  of  the  limited  time  in  which  orders 
of  the  Commission  would  operate  and  that  there  might  be  cases 
in  which  irreparable  injury  would  result  if  an  interlocutory  in- 
junction was  not  granted,  that  Congress  passed  the  statute  au- 
thorizing such  appeals.* 

Otherwise  there  is  no  direct  appeal  to  the  Supreme  Court 


3  Act  of  June  18,  1910,  eh.  309, 
§17,  .'<6  Rt.  at  L.  557,  Comp.  St. 
§  124?.. 

4.Ch.  309,  §17,  36  St.  at  L.  557, 
Ju(L  Code  §  266,  Act  of  March  3, 
1911,  36  St.  at  L.  1162,  am 'd 
March  4,  1913,  ch.  160,  37  St.  at  L. 
1013,  Comp.  St.  §1243;  Looney  v. 
Crane  Co.,  245  U.  S.  178,  187;  see 
Hiqna,    §  lOad. 

6  Louisville  R.  E.  Co.  v.  Garrett, 
231   U.    S.   298,   304;    Van   Dyke   v. 


Geary,  244  U.  S.  39,  42;  City  of 
Cincinnati  v.  Cincinnati  &  Hamilton 
Tr.  Co.,  245  U.  S.  446;  see  supra, 
§25. 

6  Jackson  v.  Cravens,  C.  C.  A.,  238 
red.  117. 

7  Act  of  Oct.  22,  1913,  38  St.  at 
L.  220,  ch.  32,  Comp.  St.  §  998;  see 
svpra,  8 100b. 

8Louis^^lle  &  Nashville  R.  R.  Co. 
V.  U.  S.,  238  U.  S.  110.  Per  Lamar, 
J. 


§  ;^ooj 


APPEALS    FROM    INJUNCTION    ORDERS 


1467 


of  the  United  States  from  any  order  granting  a  preliminary 
injunction.® 

But  the  Circuit  Courts  of  Ajipeals  can  certify  to  the  Su- 
preme Court  any  fpiestion  involved  upon  said  appeal,  even 
a  question  of  jurisdiction;^"  and  the  Supreme  Court  may 
by  certiorari  bring  the  decision  of  the  Circuit  Courts  of 
Appeals  before  it  for  review.^^  A  Circuit  Court  of  Appeals 
has  jurisdiction  of  sucli  an  a])pcal:  when  the  only  question 
in  dispute  is  one  of  jurisdiction,^^  when  the  construction  of  the 
Constitution  of  the  I'liited  States,  or  when  the  validity  or  con- 
struction of  a  ticaty  made  by  the  United  States,  is  the  sole 
question  involved.^'  It  seems  that  where  such  a  question  is  com- 
bined with  other  (juestions  of  a  different  character,  a  Circuit 
Court  of  Appeals  may,  if  the  constitutional  or  treaty  question  is 
controlling,  decline  to  take  jurisdiction  of  the  appeal,  or  may 
certify  the  constitutional  or  treaty  question  to  the  Supreme 
Court,  and  after  that  question  is  there  decided  proceed  to  judg- 
ment upon  the  appeal,  or  may  decide  the  whole  case  in  the  first 
instance.^* 

Under  this  act  the  Circuit  Courts  of  Appeals  have  jurisdiction 
to  review,  not  only  orders  granting  preliminary  injunctions,  but 
also  interlocutory  decrees  made  after  a  hearing  upon  the  merits 


SKirwan  v.  Murphy,  170  U.  S. 
205,  42  L.  ed.  1009. 

10  Be  Tampa  S.  R.  Co.,  168  U.  S. 
583,  42  L.  ed.  589. 

11  Harriman  v.  Northern  Securi- 
ties Co.,  196  U.  S.  641,  49  L.  ed. 
631. 

12  In  re  Tampa  S.  R.  Co.,  168  U. 
S.  583,  42  L.  ed.  589;  Lake  Nat. 
Bank  v.  Wolfeborough  Sav.  Bank, 
C.  C.  A.,  78  Fed.  517;  Northern 
Pac.  Ry.  Co.  v.  Pacific  Coast  Lum- 
ber Mfrs.'  Ass'n,  C.  C.  A.,  165  Fed. 
1 ;  Supreme  Council  of  Royal  Ar- 
canum V.  Hol)art,  C.  C.  A.,  244  Fed. 
385;  Soler  v.  Scoville,  C.  C.  A.,  253 
Fed.  932.  But  see  Carson  v.  Combo, 
C.  C.  A.,  86  Fed.  202;  Lake  Street 
El.  R.  Co.  V.  Farmers'  L.  &  Tr.  Co., 
C.  C.  A.,  77  Fed.  769. 


13  Westerly  v.  Westerly  Water 
Works,  76  Fed.  467;  s.  c,  22  C. 
C.  A.  278;  Mayor,  etc.,  of  Macon 
V.  Ga.  P.  Co.,  C.  C.  A.,  60  Fed.  781 ; 
Hastings  v.  Ames,  C.  C.  A.,  68  Fed. 
726;  Central  Tr.  Co.  v.  Citizens'  St. 
Ry.  Co.,  82  Fed.  1  ;  Indianapolis  v. 
Central  Tr.  Co.,  C.  C.  A.,  83  Fed. 
529;  Illinois  Cent.  R.  Co.  v.  Adams, 
C.  C.  A.,  93  Fed.  852;  Seattle  Elec- 
tric Co.  V.  Seattle,  R.  &  S.  Ry.  Co., 
C.  C.  A.,  185  Fed.  365. 

1*  Carter  v.  Roberts,  177  U.  S. 
496,  500,  44  L.  ed.  861,  863;  Cin- 
cinnati, H.  &  D.  R.  Co.  V.  Thiebard. 
177  U.  S.  615-620,  44  L.  ed.  911- 
913;  Pike's  P.  P.  Co.  v.  Colorado 
Springs,  C.  C.  A.,  105  Fed.  1,  7. 


1468 


INJUNCTIONS 


[§300 


which  grant  perpetual  injunctions  and  refer  the  cases  to  a 
master  to  ascertain  profits  and  damages. ^^  Such  appeals  are 
entitled  to  a  preference  upon  the  calendar.^^ 

It  was  held  that  a  docket  entry  in  a  suit  to  enjoin  the  in- 
fringement of  a  patent,  "Opinion — decree  for  complainants," 
did  not  constitute  a  decree  for  an  injunction,  although  the 
opinion  filed  directed  that  an  injunction  be  granted;  and  that 
no  appeal  could  be  taken  untila  decree  was  entered.^'''  It  has 
been  held  that  an  appeal  will  not  lie  from  an  order  granting 
an  injunction  in  the  alternative  unless  the  defendant  gives  a 
bond,  which  has  been  given.^*  In  such  a  case,  where  no  bond 
was  filed  by  the  defendant  and  the  complainant  filed  one  re- 
quired as  a  condition  to  the  writ,  an  appeal  was  entertained  by 
the  Circuit  Court  of  Appeals,  although  the  order  was  affirmed.^* 

The  phrase  "upon  a  hearing  in  equity,"  is  not  used  in  its 
technical  meaning  of  the  trial  of  the  cause. 2°  As  originally 
used  in  the  statutes,  it  related  to  injunctions  only.  The  words 
seem  to  have  been  designed  to  distinguish  a  temporary  restrain- 
ing order  from  an  injunction  granted  upon  notice.^^ 

No  appeal  lies  from  a  restraining  order,  granted  without 
notice.22     Nor  it  has  been  said  from  an  order  refusing  to  dis- 


ISLoekwood  v.  Wickes,  C.  C.  A., 
75  Fed.  118;  Raymond  v.  Royal  B. 
P.  Co.,  C.  C.  A.,  76  Fed.  465.  But 
see  Standard  El.  Co.  v.  Crane  El. 
Co.,  C.  C.  A.,  76  Fed.  767. 

16  Star  Brass  Works  v.  General 
Elec.  Co.,  C.  C.  A.,  129  Fed.  102. 

17Herrick  v.  Cuteheon,  C.  C.  A., 
55  Fed.  6;   s.  c,  5  C.  C.  A.  21. 

18  United  Blue  Flame  Oil  Stove 
Co.  V.  Silver  &  Co.,  C.  C.  A.,  128 
Fed.  925. 

19  City  of  Grand  Rapids  v.  War- 
ren Bros.  Co.,  C.  C.  A.,  196  Fed. 
892. 

20  Joseph  Dry  Goods  Co.  v.  He-^ht, 
C.  C.  A.,  120  Fed.  760,  763;  North- 
ern Pac.  Ry.  Co.  v.  Pacific  Coast 
Lumber  Mf  rs. '  Ass'n,  C.  C.  A.,  165 
Fed.  1 ;  Root  v.  Mills,  C.  C.  A.,  168 
Fed.  688;   Pressed  Steel  Oar  Co.  v. 


Chicago  &  A.  R.  Co.,  C.  C.  A.,  192 
Fed.  517. 

21  Joseph  Dry  Goods  Co.  v.  Hecht, 
C.  C.  A.,  120  Fed.  760,  763. 

22  Pressed  Steel  Car  Co,  v.  Chica- 
go &  A.  R.  Co.,  C.  C.  A.,  192  Fed. 
517.  There,  an  appeal  veas  dis- 
missed from  an  order  providing  as 
follows  (518):  "This  cause  having 
heretofore  come  on  before  the  court 
for  argument  upon  the  demurrer  of 
defendant  to  complainant's  bill  of 
complaint  herein,  and  the  said  de- 
murrer having  been  overruled  by 
the  court  on  the  25th  day  of  May, 
A.  D.  1911,  and  the  demurrant  hav- 
ing been  given  30  days  from  said 
date  within  which  to  answer  said 
bill  of  complaint,  now  comes  the 
defendant,  by  Isaac  M.  Jordan  and 
Russell  H.  Wiles,  its  solicitors,  and 


§300] 


APPEALS   FROM    INJUNCTION    ORDERS 


1469 


solve  such  an  order.^^  Nor  from  an  oi-der  suspending  an  inter- 
locutory injunction  pending  an  appeal.^*  Nor  from  a  supple- 
mental injunction  restraining  a  particular  suit  begun  after  an 
interlocutory  injunction  against  all  such  litigation  had  been 
issued.^^  But  an  order  after  a  hearing  of  both  parties  which 
refuses  to  dissolve  and  continues  a  restraining  order  is  in  effect 
a  grant  of  a  preliminary  injunction  and  is  appealable.^®  It  has 
been  held  that  an  appeal  maj'  be  taken  from  an  order  denying 
a  motion  to  vacate  or  dissolve  a  preliminary  injunction,^''^  al- 
though the  injunction  was  granted  after  a  hearing  and  the 
eflFect  is  to  grant  an  appeal  from  the  re-hearing.^^  When  the 
complainant  sued  to  restrain  the  infringement  of  two  copyrights, 
it  was  held  that  a  dismissal  of  so  much  of  his  bill  as  referred 
to  one  copyright  was  in  effect  a  refusal  of  an  injunction  and 
consequentl}^  appcalablc.^^  Where  a  cross  bill  seeks  a  stay  of 
proceedings  in  a  different  suit  from  that  in  which  it  is  filed,  an 
order  dismissing  such  cross  bill  is  in  effect  a  denial  of  an  in- 
junction and  is  appealable.^''     But  when  the  cross  bill  prays  a 


suggests  to  the  court  that  hereto- 
fore, by  oral  agreement  of  counsel 
in  open  court,  the  defendant  lias  re- 
frained from  prosecuting  its  suit  at 
law  against  the  complainant  pend- 
ing on  the  law  side  of  this  court 
and  referred  to  and  described  in 
said  bill  of  complaint,  but  that 
it  does  not  wish  to  be  further 
bound  by  said  agreement  of  its 
counsel.  Thereupon,  in  considera- 
tion of  the  premises  and  upon  read- 
ing the  bill  of  complaint,  it  is  here- 
by ordered  that  the  defendant, 
Pressed  Steel  Car  Company,  its 
agents  and  attorneys,  be  and  it  is 
hereby  enjoined  and  restrained  from 
further  proceedings  in  said  suit 
against  the  complainant  described 
in  the  bill  of  complaint  heroin,  being 
No.  30,0;J9  on  the  law  side  of  this 
court,  until  the  further  order  of  the 
court. ' ' 

23  Pack  V.   Carter,   C.   C.   A.,   223 
Fed.  638. 


24  H.  Ward  Leonard  v.  Maxwell 
Motor  Sales  Co.,  246  Fed.  945. 

25  Looney  Attorney  General  v. 
Eastern  Texas  R.  R.  Co.,  247  U.  S. 
214. 

26  Davis  V.  Hayden,  C.  C.  A.,  238 
Fed.  734;  Western  Union  Telegraph 
Co.  V.  U.  S.  &  M.  T.  Co.,  221  Fed. 
54.5. 

27  American  Grain  Separator  Co. 
V.  Twin  City  Separator  Co.,  C.  C.  A., 
202  Fed.  202;  Mississippi  Valley 
Trust  Co.  V.  Railway  Steel  Co.,  C.  C. 
A.,  2.58  Fed.  346. 

28  Am.  Grain  Separator  Co.  v. 
Twin  City  Separator  Co.,  C.  C.  A., 
202  Fed.  202. 

29  Historical  Pub.  Co.  v.  Jones 
Bros.  Pub.  Co.,  C.  C.  A.,  231  Fed. 
638. 

30  Emery  Central  Trust  &  Safe 
Deposit  Co.,  C.  C.  A.,  204  Fed.  965. 


1470 


INJUNCTIONS 


[§300 


stay  of  proceedings  in  the  original  suit  upon  which  it  is  de- 
pendent, such  dismissal  is  a  denial,  not  of  an  injunction,  but  of 
a  stay,  and  has  been  held  not  to  be  appealable.^^  After  an  ap- 
peal by  defendant  from  a  decree  enjoining  the  infringement  of  a 
patent  and  directing  an  accounting  while  adjudging  that  other 
claims  were  invalid,  the  plaintiff  filed  in  the  court  below  a 
waiver  of  the  right  to  an  accounting,  whereupon  the  court 
against  defendant's  protest  entered  a  final  decree  to  the  same 
effect  as  the  former  except  that  it  stated  that  there  is  no  reference 
nor  an  accounting,  nor  recoverj^  of  profits,  claims,  or  damages. 
It  was  held  that  the  District  Court  had  no  right  to  enter  this 
second  decree  after  defendant's  appeal  and  that  the  plaintiff's 
appeal  therefrom  should  he  dismissed,  because  it  was  beyond 
the  power  of  the  District  Court  to  enter  a  final  decree  at  that 
time.^^ 

If  the  defendant  wishes  to  bring  before  a  court  of  review 
the  question  as  to  the  propriety  of  an  ex  parte  injunction  or  re- 
ceivership, he  must  move  to  set  the  same  aside.  But  an  inter- 
locutorj'  order  staying  proceedings  in  an  action  at  law  is  equiva- 
lent to  an  injunction,  and  if  granted  after  hearing  is  appeal- 
ab]e.33  Whenever  proof,  by  affidavits  or  otherwise,  is  submitted 
to  the  court  and  counsel  on  both  sides  are  heard,  the  order  grant- 
ing an  injunction  or  appointing  a  receiver,  after  a  consideration 
of  the  same,  is  appealable.^*  It  seems  that  in  every  case  Avhere 
counsel  appears  in  opposition  to  a  motion  for  an  injunction 
or  receiver,  there  is  a  hearing  and  the  order  is  appealable.^* 
An  appeal  w'as  entertained  in  such  a  ease,  although  counsel 
for  the  defendant  appeared  specially  to  object  to  the  jurisdic- 
tion and  were  heard  upon  the  merits  as  aniici  curue.^^  It  has 
been  held  that  an  ex  parte  order  appointing  a  receiver  is  ap- 
pealable.'"'^ 


31  Emery    Central    Trust    &    Safe 
Deposit  Co.,  C.  C.  A.,  204  Peil.  Qfiij. 

32  Draper    Corp.  t.    Stafford    Co., 
r.  C.  A.,  255  Fed.  554,  555. 

33  Griesa  v.  Mutual  Life  Ins.  Co., 
C.  C.  A.,  165  Fed.  48. 

34  Shubert  v.  Woodward,  C.  C.  A., 

167  Fed.  47;  Root  v.  Mills,  C.  C.  A., 

168  Fed.  688. 

36  Northern  Fae.  Ry.  Co.  v.  Pacific 


Coast   Lumber   Mfrs. '   Ass'n,   C.    C. 
A.,  165  Fed.  1. 

36  Shubert  v.  Woodward,  C.  C.  A., 
167  Fed.  47. 

37  Joseph  Dry  Goods  Co.  v.  Hecht, 
C.  C.  A.,  120  Fed.  760.  Contra, 
Root  V.  Mills,  C.  C.  A.,  168  Fed, 
688;  where  it  was  held  that,  by 
moving  to  modify  such  an  ex  parte 
order,    the    defendant   acquiesced   in 


,<  :iOOJ 


APPEAI-S    IKU.M    IN.M'XCTION    DKDERS 


1471 


The  fact  that  the  order  or  decree  which  grants  an  injunction 
also  gives  other  relief,  such  as  an  accounting,  which,  if  granted 
alone,  could  not  be  reviewed  until  the  final   decree,  does  not 
prevent    a    review    of    the    entire    order.'^     But    it    has    been 
held  that  upon  an   interlocutory  order  granting  an  injunction 
appeal  from  the  court  cannot  consider  objections  to  the  scope 
of   the   accounting.39     The    defendant    cannot    appeal   from   an 
interlocutory    decree    granling    an    accounting    without    an    in- 
junction because  of  the  infringement  of  a  patent  which  has 
expired. *°     Upon  an  appeal  by  complainant  from  so  much  of 
a  decree  as  denied  him  part  of  the  injunctive  relief  sought, 
the  defendant,  without  a  cross  appeal,  cannot  have  the  injunc- 
tion contained  in  the  decree  reviewed.*^     It  has  been  held  that 
a  party  who  has  not  been  enjoined  cannot  take  such  an  appeal. *2 
The  Circuit  Court  of  Appeals  can  in  every  case  reverse  the 
whole  order  and  dismiss  the  bill  or  grant  such  other  final  relief 
on  the  merits  as  the  case  before  it  may  justify.*^     Such  final 
disposition  of  the  case  will  not,  however,  ordinarily  be  made, 
unless  the  case  has  been  submitted  for  a  final   determination 
of  the  merits,  or  unless  all  the  evidence  has  been  taken  by  depo- 
sition,  or   unless   the   pleadings  or   the  undisputed   facts   show 
that  there  can  either  be  no  right  to  relief  or  no  defense  to  the 


the  same,  and  that  such  applifation 
constituted  a  hearing,  and  that 
upon  the  denial  of  the  latter  motion 
the  time  to  appeal  began  to  run. 

38  Smith  v.  Vulcan  Iron  Works, 
165  U.  S.  518,  41  L.  ed.  810;  He 
Tampa  S.  R.  Co.,  168  U.  S.  58.3,  42 
L.  ed.  589;  Highland  Glass  Co.  v. 
Schmertz  Wire  Gla.sg  Co.,  C.  C.  A., 
178  Fed.  944;  Sheffield  Car  Co.  v. 
D'Arcy,  C.  C.  A.,  194  Fed.  686. 

39  Lederer  v.  Garage  Equii)mont 
Mfg.  Co.,  C.  C.  A.,  2.35  Fed.  527. 
See  Hallowell  v.  Commons,  C.  C.  A., 
210  Fed.  801;  Chadeloid  Chemical 
Co.,  C.  C.  A.,  243  Fed.  606,  607. 

40  Am.  Sulphite  Pulp  Co.  v.  Car- 
thage Sulphite  Co.,  C.  C.  A.,  224  Fed. 
501. 

41  Ward  Baking  Co.  v.  Wel)er 
Bros.,  C.  C.  A.,  230  Fed.  142. 


42  Steams-Roger      Mfg.      Co.      v. 
Brown,  C.  C.  A..  114  Fed.  939.  942. 

43  Smith  v.  Vulcan  Iron  Works, 
165  U.  S.  518,  41  L.  ed.  810;  Be 
Tampa  Suburban  R.  R.  Co.,  168  U. 
S.  583,  42  L.  ed.  589;  Metropolitan 
Co.  V.  Kaw  Valley  District,  223  V. 
S.  519,  56  L.  od.  533;  Highland 
Class  Co.  V.  Schmertz  Wire  Glass 
Co.,  C.  C.  A.,  178  Fed.  944;  La 
Hogue  Drainage  Dist.  No.  1  of  Iro- 
quois County,  111.  V.  Watt.s.  C.  C. 
A.,  179  Fed.  690;  Henry  Gas  Co. 
V.  U.  S.,  C.  C.  A.,  191  Fed.  132; 
Sheffield  Car  Co.  v.  D 'Arey.  C.  C. 
A.,  194  Fed.  686;  Texas  Traction 
Co.  V.  Barron  G.  Collier,  C.  C.  A., 
195  Fed.  65;  Louisville  &  N.  B.  Co. 
V.  Western  U.  Tel.  Co.,  C.  C.  A..  207 
Fed.  1. 


1472 


INJUNCTIONS 


[§300 


bill.**  The  fact  that  previously  to  the  granting  of  an  injunc- 
tion a  demurrer  to  the  equity  of  the  bill  had  been  overruled  and 
an  answer  filed,  does  not  prevent  the  consideration  of  that  ques- 
tion by  the  appellate  court  in  such  a  case.*^  Unless  it  is  clear 
that  it  is  impossible  for  the  complainant  to  succeed,  when  his 
bill  fails  to  state  facts  authorizing  equitable  relief,  the  case 
should  be  remanded  wuth  leave  to  amend  or  to  move  the  court 
below  for  permission  to  amend.** 

Upon  an  appeal  from  an  order  granting  or  continuing  an  in- 
junction the  Circuit  Court  of  Appeals  will  ordinarily  not  re- 
view disputed  questions  of  fact  arising  from  contradicting  affi- 
davits when  there  has  been  no  cross-examination,  especially 
before  issue  is  joined.*'^  But  it  has  been  held  that  this  rule  does 
not  apply  to  an  appeal  from  an  order  granting  an  injunction 
restraining  the  enforcement  of  a  statute  regulating  railroad 
rates.*^  Upon  an  appeal  from  an  order  enjoining  the  infringe- 
ment of  a  patent  which  had  been  adjudged  valid  in  a  previous 
suit,  where  the  record  contained  only  the  affidavits  used  upon 


44  Highland  Ave.  &  B.  E.  Co.  v. 
Columbian  Eq.  Co.,  168  U.  S.  627, 
42  L.  ed.  605 ;  Eagle  Glass  Mfg.  Co. 
V.  Eowe,  245  U.  S.  277;  Lake  Nat. 
Bank  v.  Wolfeborough  Sav.  Bank, 
C.  C.  A.,  78  Fed.  517;  U.  S.  Eubber 
Co.  V.  Am.  O.  L.  Co.,  C.  C.  A.,  82 
Ted.  248;  Stearns-Eoger  Mfg.  Co.  v. 
Brown,  C.  C.  A.,  114  Ted.  939.  But 
see  Fidelity  I.  T.  &  S.  D.  Co.  v.  Dix- 
on, C.  C.  A.,  78  Fed.  205.  Nor  in  a 
suit  to  enjoin  the  infringement  of 
a  patent  which  contains  a  large 
number  of  claims  not  previously  ad- 
judicated. Nat.  El.  Signaling  Co. 
V.  Telefunken  Wireless  Tel.  Co.,  C. 
C.  A.,  200  Fed.  591.  Where  the  in- 
junction was  granted  by  the  Dis- 
trict Court  because  of  a  prior  adju- 
dication between  other  parties, 
without  eonsideiring  the  questions 
upon  the  merits,  the  appellate  court 
will  usually  make  the  same  disposi- 
tion of  the  matter  upon  an  appeal. 
Fireball  Gas  Tank  &  I.  Co.  v.  Com- 


mercial Acetylene  Co.,  C.  C.  A.,  198 
Fed.  650.     See  §  364,  infra. 

45  Henry  Gas  Co.  v.  U.  S.,  C.  C. 
A.,  191  Fed.  132. 

46  Southern  Express  Co.  v.  Long, 
C.  C.  A.,  202  Fed.  462. 

47  Kerr  v.  New  Orleans,  C.  C.  A., 
126  Fed.  920;  Eailroad  Commission 
V.  Eosenbaum,  C.  C.  A.,  130  Fed. 
110;  James  v.  Wild  Goose  Mining 
&  Trading  Co.,  143  Fed.  868;  Mc- 
Carthy V,  Bunker  Hill  &  Sullivan 
Mining  and  Concentrating  Co.,  C. 
C.  A.,  164  Fed.  927;  King  Lumber 
Co.  V.  Benton,  C.  C.  A.,  186  Fed. 
458. 

48  Eailroad  Commission  of  Ala- 
bama V.  Central  of  Georgia  Ey.  Co., 
C.  C.  A.,  170  Fed.  225.  This  excep- 
tion was  not  applied  to  an  appeal 
from  an  injunction  against  a  mu- 
nicipal ordinance  regulating  tele- 
phone charges.  City  of  Owensboro 
V.  Cumberland  Telephone  &  Tele- 
graph Co.,  C.  C.  A.,  174  Fed.  739. 


^300] 


APPEALS    FROM    INJUN'CTIOX    ORDERS 


U73 


the  motion  below,  it  was  held  that  the  question  of  infringement 
was  presented  for  review.*^ 

The  Circuit  Court  of  Appeals  raay,^**  but  rarely  will,  re- 
view the  exercise  of  its  discretion  l)y  tiie  District  Court  upon 
the  grant  or  continuance  of  an  injunction  or  the  appoint- 
ment of  a  receiver  ;^^  unless  there  has  been  a  misapplication 
of  the  law  to  the  conceded  or  indisputable  facts  when  the  case 
will  be  reviewed  anew ;  ^^  but  if  there  is  no  equity  in  the  bill 
it   will  dissolve  the  injunction  ^'  or  the  receivership,^*  as  the 


49  Ferry-Hallock    Co.    v.    Herman, 
C.  C.  A.,  178  Fed.  550. 

60  Charles    E.    Hires    Co.    v.    Con- 
sumers' Co.,  C.  C.  A.,  100  Fed.  809. 

51  Bartholomew  v.  Union  Paper  & 
Bag  Co.,  G.  C.  A.,  113  Fed.  289;  U. 
S.  Gramaphone  Co.  v.  Seaman,  C. 
C.  A.,  113  Fed.  745;  Stearns-Roger 
Mfg.  Co.  V.  Brown,  C.  C.  A.,  114 
Fed.  939;  Am.  Fur  Ref.  Co.  v.  Ci- 
miotti  Unhairing  Co.,  C.  C.  A.,  118 
Fed.  838;  Harding  v.  Corn  Products 
Refining  Co.,  C.  C.  A.,  168  Fed.  658 ; 
City  of  Owcnsboro  v.  Cumberland 
Telephone  &  Telegraph  Co.,  C.  C. 
A.,  174  Fed.  739;  Kings  County 
Raisin  &  Fruit  Co.  v.  U,  S.  Consol 
Seeded  Raisin  Co.,  C.  C.  A.,  182  Fed. 
59 ;  City  of  Shelbyville,  Ky.  v.  Glov- 
er, C.  C.  A.,  184  Fed.  234;  Love  v. 
Atchison,  T.  &  S.  F.  Ry.  Co.,  C.  C. 
A.,  185  Fed.  321;  Interurban  Ry.  & 
Terminal  Co.  v.  Westinghouse  Elec- 
tric &  Mfg.  Co.,  C.  C.  A.,  186  Fed. 
166;  King  Lumber  Co.  v.  Benton, 
C.  C.  A.,  186  Fed.  458;  Acme  Acety- 
lene Appliance  Co.  v.  Commercial 
Acetylene  Co.,  C.  C.  A.,  192  Fed. 
321;  Texas  Traction  Co.  v.  Barron 
G.  Collier,  C.  C.  A.,  195  Fed.  65; 
City  of  Grand  Rapids  v.  "Warren 
Bros.  Co.,  C.  C.  A.,  196  Fed.  892; 
Magrudcr  v.  Belle  Fourche  Valley 
Water  Users'  Ass'n,  219  Fed.  72; 
Crescent  Specialty  Co.  v.  National 
Fireworks  Distributing  Co.,  C.  C.  A., 


219  Fed.  130;  Kansas  City,  Mo,  v. 
Sanitary  Street  Flushing  Mach.  Co., 
C.  C.  A.,  224  Fed.  964;  Trenton  & 
Mercer  County  Traction  Corp.  v. 
Board  of  Public  Utility  Com'rs, 
C.  C.  A.,  229  Fed.  140;  Lion  Trac- 
tor Co.  V.  Bull  Tractor  Co.,  C.  C.  A., 
231  Fed.  156;  Puritan  Cordage  Mills 
v.  Sampson  Cordage  Works,  C.  C.  A., 
231  Fed.  671;  Thompson  v.  Balke, 
C.  C.  A.,  245  Fed.  841;  City  Coun- 
cil of  Augusta  V.  Postal  Telegraph- 
Cable  Co.,  C.  C.  A.,  246  Fed.  440; 
City  of  Chicago  v.  Fox  Film  Cor- 
poration, C.  C.  A.,  251  Fed.  883; 
City  of  Amarillo  v.  S.  W.  Tel.  & 
Tel.  Co.,  C.  C.  A.,  253  Fed.  638. 

52  Cumberland  Telephone  &  Tel. 
Co.  V.  City  of  Memphis,  C.  C.  A., 
200  Fed.  657 ;  Greenberg  v.  Lesamis, 
C.  C.  A.,  203  Fed.  678;  Winchester 
Repeating  Arms  Co.  v.  Olmstead,  C. 
C.  A.,  203  Fed.  493;  Hanover  Star 
Milling  Co.  v.  Allen  &  Wheeler  Co., 
C.  C.  A.,  208  Fed.  513;  Fair  &  Car- 
nival Supply  Co.  V.  Shapiro,  C.  C. 
A.,  253  Fed.  738;  Stromberg  Motor 
Devices  Co.  v.  Zenith  Carburetor 
Co.,  C.  C.  A.,  254  Fed.  91;  Weber 
Electric  Co.  v.  Connecticut  Electrical 
Mfg.  Co.,  257  Fed.  427. 

53  New  Albany  Waterworks  v. 
Louisville  Banking  Co.,  C.  C.  A., 
122  Fed.  776;  Korr  v.  New  Orleans. 
C.  C.  A.,  126  Fed.  920;  Continuous 
Glass   Press  Co.   v,   Schmertz   Wire 


1474 


INJUNCTIONS 


[§300 


case  may  be,  even  it  has  been  held  when  the  point  is  not  sug- 
gested in  the  assignment  of  errors  ^^  nor  raised  in  tlie  court 
below.^^  Where  the  bill  states  a  case  that  might  justify  relief, 
the  defendant  is  amply  protected  by  a  bond  and  a  dissolution 
of  the  injunction  would  cause  irreparable  injury  to  the  com- 
plainant ;  the  Circuit  Court  of  Appeals  will  rarely  disturb  the 
status  quo  until  after  the  final  decree.^''' 

It  has  been  said  that  the  Circuit  Court  of  Appeals  should 
not  consider  questions  concerning  the  scope  of  the  injunction 
which  were  not  called  to  the  attention  of  the  court  below.^^ 

"The  rule  that  the  granting  or  refusing  of  a  preliminary  in- 
junction ordinarily  rest  in  the  sound  discretion  of  the  trial  court, 
and  a  review  thereof  by  an  appellate  court  is  limited  to  the 
inquiry  whether  there  is  an  abuse  of  discretion  in  granting  the 
writ,  is  based  largely  upon  the  consideration  that  the  object  and 
purpose  of  the  preliminarj-  injunction  is  to  preserve  the  exist- 
ing state  of  things  until  the  rights  of  the  parties  can  be  fairlj^ 
and  fully  investigated  and  determined  upon  strictly  legal  proofs 
according  to  the  course  and  principles  of  ecpiity."^^  "But  no 
such  consideration  obtains  where  the  trial  court  dissolves  a 
preliminary  injunction.  The  granting  of  an  injunction  to  pre- 
serve the  status  quo  may  be  a  substantial  and  persuasive  reason 
for  continuing  it  in  force.  It  follows  that  when  a  preliminary 
injunction  has  been  dissolved  the  appellate  court  will  not  be 
limited  to  the  question  whether  the  trial  court  has  abused  its 


Glass  Co.,  C.  C.  A.,  153  Fed.  577; 
Bush  V.  Pioneer  Mining  Co.,  C.  C. 
A.,  154  Fed.  480;  Shelbyville  v. 
Glover,  C.  C.  A.,  184  Fed.  234; 
Love  V.  Atchison,  T.  &  S.  F.  Ey.  Co., 
C.  C.  A.,  185  Fed.  321;  Acme  Ace- 
tylene Appliance  Co.  v.  Commer- 
cial Acetylene  Co.,  C.  C.  A.,  192 
Fed.  321;  Southern  Express  Co.  v. 
Long,  C.  C.  A.,  202  Fed.  462;  Louis- 
ville &  N.  R.  Co.  V.  W.  U.  Tel.,  C.  C. 
A.,  207  Fed.  1. 

64  Northern  Securities  Co.  v.  Har- 
riman,  C.  C.  A.,  134  Fed.  331;  s.  c, 
aff.  196  U.  S.  641,  49  L.  ed.  631; 
Cabaniss  v.  Reco  Min.  Co.,  C.  C.  A., 
116  Fed.  318. 


55  Cabaniss  v.  Reco  Min.  Co.,  C. 
C.  A.,  116  Fed.  318,  323. 

56  Shubert  v.  Woodward,  C.  C.  A., 
167  Fed.  47. 

57  Coram  v.  Ingersoll,  C.  C.  A., 
133  Fed.  226.  See  City  of  Grand 
Rapids  &  Warren  Bros.  Co.,  C.  C. 
A.,  196  Fed.  892. 

58  Shubert  v.  Woodward,  C.  C.  A., 
167  Fed.  47. 

59  Blount  V.  Societe  Anonyme  du 
Filtre  Chamberland  Systeme  Pas- 
teur C.  C.  A.,  53  Fed.  98;  Kings  & 
County  Raisin  &  Fruit  Co.  v.  U.  S. 
Con.  Seeded  Raisin  Co.,  C.  C.  A., 
182  Fed.  59. 


§300] 


APPEALS    FRf).M    I.X.I  I'XCTION    dKHKRS 


1475 


discretion  in  dissolving  the  injunction,  hut  may  imjuire  into 
all  of  the  circumstances  connected  with  ihu  proceedings  as  they 
appear  of  record,  and  the  effect  the  dissolution  of  the  injunction 
may  have  on  the  rights  of  the  parties."^" 

The  fact,  that  a  railroad  company  attacking  orders  reducing 
its  rates  will  lose  but  little  by  delay  pending  an  appeal,  may 
be  a  reason  foi'  the  refusal  of  the  court  of  first  instance  to  in- 
terfere.^^ "]f  llie  new  rate  goes  into  effect  pending  this  appeal, 
the  railroad  com])any  will  lose  some  money,  and  the  loss  will 
be  practically  ineparal)le,  but  the  amount  will  not  be  very  large, 
and  we  think  that  to  impose  that  possible  loss  is  a  less  evil 
than  to  permit  the  railroad  company  to  have  longer  benefit  of 
the  restraining  order  as  the  result  of  its  own  mistake  in  pre- 
senting its  case  the  first  time."^^ 

That  the  facts  are  doubtful  is  sufficient  reason  for  the  refusal 
of  the  court  of  review  to  grant  or  to  continue  an  interlocutory 
injunction.^^ 

Where  the  court  refuses  to  read  or  hear  affidavits  and  letters 
that  are  pertinent  evidence  in  opposition  to  an  application 
for  an  injunction,  they  must  he  considered  by  the  Circuit  Court 
of  Appeals.^*  AVhere,  on  the  hearing  of  a  petition  for  injunc- 
tion against  infringement,  affidavits  used  on  a  prior  hearing  are 
referred  to  and  used,  they  should,  under  the  circumstances  of 
this  case,  be  incorporated  in  the  record  on  an  appeal.^^  Such 
an  appeal  does  not  affect  the  jurisdiction  of  the  District  Court 
to  proceed  willi  the  cause  in  every  respect  not  involved  in  the 
appeal.^^ 


eOBothwell  V.  Fitzgerald,  C.  C. 
A.,  219  Fed.  408,  414.  415  Per  Mor- 
row, J. 

61  Louisville  &  Nashville  R.  R.  Co. 
V.  Kentucky  R.  R.  Coniniission,  214 
Fed.  4G.J,  470,  472. 

62  Louisville  &  N.  R.  Co.  v.  Ken- 
tucky R.  R.  Commission,  214  Fed. 
472,  27.'}.  Per  Warrington  and  Deni- 
soii,  ,T. 

63  Standard  Plunger  Elevator  Co. 
V.  Stokes,  200  Fed.  770;  Eagle 
Glass  &  Mfg.  Co.  V.  Rowe,  245  U.  S. 
275. 


64  Xew  Albany  Waterworks  v. 
Louisville  Banking  Co.,  C.  C.  A., 
122  Fed.  77(3.  See  Tunstall  v. 
Stearns  Coal  Co.,  C.  C.  A.,  192  Fed. 
808;  N.  J.  Patent  Co.  v.  SchaetVr, 
178  Fed.  27(3. 

66  Staples  &  Hanford  Co.  v.  Lord, 
('.  ('.   A.,  148  Fed.   15. 

66Cuyler  et  al.  v.  Atlantic  &  N. 
C.  R.  Co.,  132  Fed.  568;  Footte  v. 
Parsons  Non-Skid  Co.,  C.  C.  A.,  19(3 
Fc.l.  951. 


1476  INJUNCTIONS  [§  300 

The  Judicial  Code  provides:  "that  the  appeal  must  be  taken 
within  thirty  days  from  the  entry  of  such  order  or  decree,  and 
it  shall  ^ake  precedence  in  the  appellate  court;  and  the  pro- 
ceedings in  other  respects  in  the  court  below  shall  not  be  stayed 
unless  otherwise  ordered  by  that  court  or  the  appellate  court, 
or  a  judge  thereof,  during  the  pendency  of  such  appeal:  Pro- 
vided, however.  That  the  court  below  may,  in  its  discretion, 
require  as  a  condition  of  the  appeal  an  additional  bond."^"'' 
Where  the  judge  who  granted  the  preliminary  injunction  was 
absent  from  the  district  and  another  judge  to  whom  an  appli- 
cation was  duly  made  declined  to  act,  it  was  held  that  the 
former  on  his  return  might  allow  the  appeal  nunc  pro  tunc.^^ 

Where  the  court  below  has  refused  a  stay  or  supersedeas  the 
court  of  review  may  grant  one  on  proper  terms.^^  Ordinarily 
it  will  not  interfered"  The  grant  of  a  supersedeas  upon  such 
an  appeal  is  within  the  discretion  of  the  court  below ;  '^  but  a 
judge  of  the  Circuit  Court  of  Appeals,  may,  upon  appeal  to  his 
court  from  an  order  granting  an  interlocutory  injunction,  stay 
its  operation.'^  This  will  rarely  be  done  where  the  judge  w4io 
granted  the  order  appealed  from  denied  a  stay.'''^  The  fact, 
that  if  effect  should  be  given  to  the  injunction,  the  question 
would  become  moot,  was  held  to  be  a  reason  for  granting  such 
a  stay  when  the  plaintiff  could  be  compensated  for  pecuniary 
damages  and  the  public  might  be  injured  by  the  injunction.''^* 

Upon  an  appeal  from  an  order  denying  an  interlocutory  in- 
junction restraining  an  enforcement  of  an  order  of  the  Inter- 
state Commerce  Commission,  an  injunction,  pending  an  appeal, 
was  granted,  where  it  was  proved  that  in  the  event  of  a  reversal 
great  and  irreparable  injury  in  the  meantime  would  result  to 
the  petitioning  railroad  company  by  reason  of  the  diversion 
of  traffic  caused  by  the  enforcement  of  the  order  by  the  Com- 

67  Judicial   Code   §  129,   36   St.   at  71  Ibid. 

L.  1134,  Comp.  St.  §  1121.  72  Hough,  J.,  in  Masses  Pub.  Co. 

68  J.  D.  Eandall  Co.  v.  Foglesong  v.  Patten,  C.  C.  A.,  245  Fed.  702. 
Mach.   Co.,  200  Fed.   741.     But   see  73  Chadeloid  Chemical  Co.  v.  H.  B. 
infra,  §  698.  Chalmers  Co.,  C.  C.  A.,  242  Fed.  71. 

69  Omaha  Council  Bluffs  Str.  Ry.  7*  Masses  Pub.  Co.  v.  Patten,  C.  C. 
Co.  V.  Interstate  Commerce  Commis-  A.,  245  Fed.  702. 

sion,   222   U.   S.   582. 

70  City    of    Shelbyville   v.    Glover, 
C.  C.  A.,  184  Fed.  234,  240. 


§8U0J 


APPEALS  FROM  INJUNCTION  ORDEKS 


1477 


mission  and   also  by  reason   of  the  exi)ense   and   disbursement 
of  business   caused   by   the   chancre   of   the    former   practice   to 
comply  with  the  Commission's  order,  while  on  the  otlier  hand 
it  did  not  clearly  appear  that  any  particular  individual  would 
suffer  material  financial  injury.'^    A  stay  or  supersed-eas  may  be 
allowed  upon  the  tiling  of  a  bond  by  the  appellant  '«  but  such  a 
bond  is  not  indispensable."     The  allowance  of  an  appeal  does 
not  deprive  the  lower  court  of  power  to  hear  a  motion  to  rerpiire 
an  increase  of  sudi  a  bond  pursuant  to  leave  reserved  in  the 
order  of  allowance,  nor  to  require  an  account  of  sales  pending 
the  appeal  nor  to  make  other  orders  purely  administrative  in 
their  nature^^    The  pendency  in  another  jurisdiction  of  another 
suit  between  the  parties  is  no  ground  for  the  dismissal  of  an 
appeal,'^^  nor,  unless  it  would  conclusively  determine  their  rights 
in  the  case  where  the  appeal  is  taken,  is  it  a  cause  for  the  stay 
of  the  argument  of  such  an  appeal. 8°    Where  the  appeal  is  taken 
in  open  court,  there  need  be  no  summons  nor  severance."^    If  it  is 
necessary  to  bring  in  parties  not  duly  served  with  the  citation, 
the  defect  may  be  corrected  in  the  court  of  review.82    AVhere  the 
controversy  between  the  parties  had  been  substantially  settled,** 
and  where  the  injunction  had  become  no  longer  efiective  pending 


76  Louisville  &  N.  R.  Co.  v.  U.  S., 
227  Fed.  27.S,  to  the  same  effect, 
Louisville  &  N.  R.  Co.  v.  Siler,  186 
Fed.  176,  203.  See  Interstate  Com- 
merce Commission  v.  Louisville  &  N. 
R.  Co.,  101   Fed.  146,  148. 

76  Cotting  v.  Kansas  City  Stock- 
Yards  Co.,  82  Fed.  850,  857.  Infra, 
Cliapter  XVI  on  Writs  of  Error 
and  Appeals. 

77  Omaha  Council  Bluffs  Sir.  Ry. 
Co.    v.    Interstate    Commerce     Com- 


mission, 


222  V.  S.  582. 


I'neumatic  Scale  Corporation  v. 
Automatic  Weighing  Mach.  Co.,  C, 
C.  A.,  200  Fed.  572.  There  the  com- 
plainant failed  to  apply  for  a  bond 
in  the  court  below,  and  it  was  held 
that  the  appellate  court  would  not 
require  one  to  be  filed  because  of 
matters  of  which  such  complainant 
Fed.  Prac.  Vul.  11—23 


had   knowledge   when    the   stay   was 
granted. 

78  Byrd    Mfg.    Co.    v.    Colman,    C. 
C.  A.,  205  Fed.  905. 

79  Keene    v.    New    Idea    Spreader 
Co.,  231  Fed.  701.    • 

80  Ibid. 

81  Williams  v.  City  Bank  &  Trust 
Co.,  C.  C.  A.,  186  Fed.  419. 

82  Ibid.  Guaranty  Trust  Co.  of 
N.  Y.  v.  International  Steam  Pump 
Co.,  C.  C.  A.,  Ind.  Ct.,  231  Fed.  594. 
See  Fransioli  v.  Presto-Lite,  C.  C. 
A.,  234  Fed.  63;  Scattergood  v. 
Am.  Pipe  &  Construction  Co.,  247 
Fed.  712;  Pac.  Coast  Pipe  Co.  v. 
Conrad  City  Water  Co.,  C.  C.  A.,  245 
Fed.  846. 

83  Victor  Talking  Mach.  Co.  v. 
American  Graphophone  Co.,  C.  C. 
C.  192  Fed.  1023. 


1478  INJUNCTIONS  [§  300 

an  appeal,^*  the  order  was  affirmed  without  passing  upon  the 
equity  of  the  case  of  the  party  who  obtained  the  writ. 

Upon  the  affirmance  of  a  decree  for  an  injunction  and  a 
reference  for  an  accounting,  it  was  held  that  the  mandate  de- 
termined nothing  connected  with  the  reference  or  the  damages.^* 

84  Louisiana    Agricultural    Corpo-  86  Hallowell  v.  Commons,  C.  C.  A., 

ration    v.    Pelican    Oil    K.    Co.,    256       210  Fed.  801. 
Fed.  822. 


CnAPTP]R  XIX. 

RECEIVERS. 

§  301.  Definition  of  receiver.  A  receiver  is  an  officer  ap- 
pointed by  a  court  of  equity  to  assume  the  custody  of  property 
pending  litigation  concerning  the  same.  The  effect  of  the  ap- 
pointment of  a  receiver  is  to  put  the  property  in  his  custody 
as  an  officer  of  the  court,  for  the  benetit  of  the  party  ultimately 
proved  to  be  entitled,  but  not  to  change  the  title  or  even  the 
right  of  possession  to  the  property.^  In  England  the  term  is 
usually  applied  only  to  those  appointed  to  receive  the  rents 
and  profits  of  land  and  get  in  outstanding  property:  and  a 
person  selected  to  carry  on  or  to  superintend  a  trade  or  business 
is  usually  denominated  "a  manager,"  or  a  "receiver  and 
manager.  "2  B^t  in  the  United  States  both  classes  of  officers 
are  called  receivers.  The  Revised  Statutes  authorize  the  Comp- 
troller of  the  Currency  to  appoint  in  certain  cases  a  receiver 
of  a  national  banking  association,  whose  powers  and  duties  are 
in  many  respects  analogous  to  those  of  a  receiver  appointed 
by  a  court  of  equity.' 

§302.  When  receivers  will  be  appointed.  A  receiver  may 
be  appointed  to  provide  for  the  safety  of  })roperty  pending 
litigation  to  determine  the  title  thereto;  to  preserve  prop- 
erty in  danger  of  being  dissipated  or  destroyed  by  those  having 
the  legal  title  to  the  possession  thereof :  to  preserve  the  property 
of  infants  during  their  minority,  when  they  have  no  guardian 
and  their  parents  are  dead  or  unfit  to  be  trusted  therewith;  to 
preserve  the  property  of  idiots  and  hmatics  when  it  is  impossible 

§.301.      1  Union    Bank    v.    Kansas  3  See  U.  S.  R.  S.  §§  52.34-5237;   19 

C.  Bank,  136  U.  S.  223,  236,  34  L.       St.  at  L.  63;   1st  Supp.  U.  S.  B.  S. 
ed.  341,  346.    See  High  on  Ri'ecivers       216;    24    St.   at    L.,    ch.    28,    p.    8; 
(4th  ed.),  sect.  1;  Equitable  Tr.  Co.       Price  v.  Abbott,  17  Fed.  506;  svpra 
V.   Great   Shoshone   &   T.   F.   W.   P.       81   and  94,  infra,  §  302c. 
Co.,  C.  C.  A.,  245  Fed.  697. 

ZDaniell's  Ch.  Pr.   (2d  Am.  ed.), 
2006. 

1479 


1480 


RECEIVERS 


[§  302 


to  obtain  a  proper  person  as  committee;  and  when  the  appoint- 
ment is  authorized  by  statute.^ 

A  receiver  may  be  appointed  to  provide  for  the  safety  of 
property  pending  litigation  to  determine  the  title  thereto, 
whether  the  litigation  is  in  a  court  of  equity ,2  or  probate,' 
or  of  bankruptcy,*  in  a  foreign  court,^  or  sometimes,  though 
very  rarely,  in  a  court  of  law.^  Such  an  appointment  should 
not  be  made  unless  the  defendant  is  insolvent  or  irreparable 
injury  might  otherwise  result.'''  A  Federal  court  of  equity  has 
no  jurisdiction  at  the  suit  of  a  contract  creditor  without  a  lien 
to  appoint  a  receiver  of  the  assets  of  an  individual  who  is 
solvent  although  temporarily  embarrassed.* 

The  more  usual  cases  where  receivers  are  appointed  are  suits 
in  equity  to  obtain  equitable  assets,  for  the  foreclosure  of  a 
mortgage,  and  for  the  dissolution  or  winding  up  of  the  affairs 
of  a  partnership.  It  was  the  English  rule  that  a  receiver  could 
not  be  appointed  at  the  suit  of  a  first  mortgagee,  since  the 
latter  had  it  in  his  power  to  take  possession  himself.®  In  this 
country,  however,  receivers  are  frequently  appointed  in  such 
cases.i®     Ordinarily,  a  receiver  of  the  effects  of  a  partnership 


§  .302.  1  Kerr  on  Eeeeivers  i2d 
Am.   ed.),   3. 

2  Davis  V.  Duke  of  Marlborough, 
2  Swanst.  108;  Curling  v.  Marquis 
Townshend,  19  Ves.  628;  Dill  v. 
Supreme  Lodge,  Knights  of  Honor, 
226  Fed.  807;  Farmers'  State  Bank 
V  Thompson,  C.  C.  A.,  261  Fed.  166. 
But  see  Moore  v.  Bank  of  Br.  Co- 
lumbia, 106  Fed.  574. 

3  King  V.  King,  6  Ves.  172;  Mat- 
ter of  Colvin,  .3  Md.  CTi.  Dec.  279; 
Eobinson  v.  Taylor,  42  Fed.  803; 
Underground  El.  Eys.  Co.  v.  Owsley, 
169  Fed.  671;  aff'd,  C.  C.  A.,  176 
Fed.  26,  where  it  was  held  that  the 
receivership  should  be  provisional 
until  an  application  to  the  Surro- 
gate 's  Court  for  the  appointment  of 
a  temporary  administrator  could  be 
made  and  determined,  and  should 
tlien  terminate,  unless  sucli  court 
refused   to   make  such  appointment. 


4  Sedgwick  v.  Place,  3  N.  B.  R. 
35;  Alabama  &  C.  R.  Co.  v.  Jones, 
5  N.  B.  R.  97;  Keenan  v.  Shannon, 
9  N.  B.  R.  441.  See  30  St.  at  L. 
544,  546,  §  2. 

5  Transatlantic  Co.  v.  Pietroui, 
Johns.  604. 

6Talbott  v.  Scott,  4  K.  &  J.,  96; 
Fingal  v.  Blake,  2  Molloy,  50; 
Whitney  v.  Buckman,  26  Cal.  447; 
Horton  v.  White,  84  N.  C.  297 ;  Jef- 
freys V.  Smith,  1  J.  &  W.  298;  Rob- 
inson v.  Taylor,  42  Fed.  803.  But 
see  Tornanses  v.  Melsing,  C.  C.  A., 
106  Fed.  775. 

7  Am.  Manganese  Steel  Co.  v. 
Alaska  Mines  Corp.,  C.  C.  A.,  250 
Fed.  614. 

8  Davis  V.  Hayden,  C.  C.  A.,  238 
Fed.  734. 

9  Berney  v.  Sewell,  1  J.  &  W\  647. 

10  See.  for  example,  Stanton  v. 
Alabama  &  C.  R.  Co.,  2  Woods,  506; 


^  802] 


WHEN    RECEIVERS    ARE    APPOINTED 


1481 


will  not  be  appointed  unless  the  bill  prays  a  dissolution  and 
shows  a  proper  ease  for  the  same."  But  where  suits  have  been 
instituted  to  compel  partners  to  aet  according  to  the  provisions 
of  instruments  into  which  they  have  entered,  the  court  will 
take  care  that  the  decree  shall  not  be  defeated  by  anything  to 
be  done  in  the  meantime,  and  may  appoint  a  receiver  to  protect 
the  property.^^ 

Receivers  may  be  appointed  to  preserve  property  in  danger 
of  being  dissipated  or  destroyed  by  those  having  the  legal 
title  to  its  possession,  at  the  suit  of  beneficiaries,  legatees,  next 
of  kin,  or  creditors,  where  a  trustee,*'  executor,**  or  admin- 
istrator *^  is  insolvent  and  has  not  given  bonds,  or  is  guilty 
of  misconduct ;  or  where  two  trustees  or  executors  disagree 
so  that  it  is  impossible  for  them  to  act  together.*®  At  the  suit 
of  the  United  States  when  the  bill  prays  for  the  cancella- 
tion of  a  land  patent,"  or  when  proceedings  for  that  purpose 
is  pending  in  the  land  oflfice.*^  At  the  suit  of  remainder- 
men," where  the  holder  of  the  particular  estate  or  party  in 
possession,  as  the  case  may  be,  is  guilty  of  voluntary  or  per- 
missive waste.  At  a  suit  by  a  remainderman  when  the  holder 
of  a  particular  estate  improperly  refuses  to  renew  a  leasehold-^" 
In  the  case  of  trustees,  the  court  will  thus  interfere  whether  the 
trust  is  express  or  implied. 2*     Upon  an  interlocutory  applica- 


Alleii  V.  D.  &  W.  R.  Co.,  3  Woods, 
316,  326. 

11  Goodman  v.  Whitcomh,  1  J.  & 
W.  589;  Oliver  v.  Hamilton,  2  Aust. 
453;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1966,  1967;  Kerr  on  Receivers  (2d 
Am.   ed.),  93. 

12  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1967;  Const,  v.  Harris,  T.  &  R.  496. 

13  Hagenbeck  v.  Hagenbeck  Z.  A. 
Co.,  59  Fed.  14;  MeCosker  v.  Brady, 
1  Barb.  Ch.  (N.  Y.)  329;  Brodie  v. 
Barry,  3  Meriv.  695;  Janeway  v. 
Greeli,  16  Abb.  Pr.  (N.  Y.)  215, 
note. 

14  Utterson  v.  Mair,  2  Ves.  Jr.  95 ; 
Scott  V.  Beeher,  4  Price,  346.  But 
see  Gladdon  v.  Stoncman,  1  Madd. 
143,  n. ;   Langley  v.  Hawk,  5  Madd. 


46;  Kerr  on  Receivers  (2d  Am.  ed.) 
20. 

15  Hcrvey  v.  Fitzpatrick,  Kay, 
421  ;   Ware  v.  Ware,  42  Ga.  408. 

16  Ball  V.  Tompkins,  41  Fed.  486. 

17  1'.  S.  V.  Whitmire,  C.  C.  A.,  188 
Fed.  422. 

18  U.  S.  V.  Devil 's  Den  Counsel 
Oil  Co.,  236  Fed.  973 ;  Folk  v.  U.  S., 
C.  C.  A.,  233  Fed.  177. 

19  Vose  V.  Reed,  1  Woods,  647, 
650. 

20  Bennett  v.  Colley,  2  M.  &  K. 
225;  s.  C,  5  Sim.  181,  192;  Lord 
Montford  v.  Lord  Cadogan,  17  Ves. 
485. 

21  Pritfhard  v.  Fleetwood,  1 
Meriv.  54;  Daniell's  Ch.  Pr.  (5th 
Am.  ed.)    1724. 


1482 


RECEIVERS 


[§302 


tion,  in  a  suit  to  enjoin  tlie  infringement  of  a  patent  by  an 
insolvent  defendant,  a  Circuit  Court  appointed  a  receiver  of  the 
profits  made  by  such  infringement.^^  ^  receiver  has  been  ap- 
pointed to  impound  dividends  paid  by  stockholders  of  an  in- 
solvent corporation  to  a  suit  to  apply  them  to  the  payment  of 
a  tax  on  oleomargerine.^^  In  a  proper  case  a  receiver  may  be 
appointed  in  a  suit  to  dissolve  a  corporation  under  the  Anti- 
Trust  Laws.^* 

A  receiver  may  be  appointed  over  the  property  of  an  infant,^^ 
when  the  latter  has  no  guardian,  or  his  guardian  is  insolvent 
or  has  been  guilty  of  misconduct,^^  and  the  infant  has  no  parents, 
or  his  parents  are  unfit  to  be  intrusted  with  the  care  of  his  es- 
tate.2'  Receivers  may  be  appointed  over  the  property  of  idiots 
and  lunatics,  when  no  person  can  be  found  disposed  to  act  as 
committee ;  ^*  or,  it  seems,  when  the  committee  is  infirm,  or  the 
management  of  the  estate  is  very  onerous,  or  the  committee  lives 
far  from  the  estate.^^ 

The  statutes  of  the  several  States  authorize  the  appoint- 
ment of  receivers  in  numerous  cases,  especially  in  providing 
for  the  dissolution  of  corporations.  In  so  far  as  State  stat- 
utes authorize  the  appointment  of  receivers,  they  will  usually 
be  followed  by  the  Federal  courts,  provided  at  least  that 
they  do  not  deprive  a  party  of  a  trial  by  jury  to  which  he 
would  have  been  entitled  at  common  law;  and  the  Federal 
courts  will  also  observe  the  statutory  conditions  required  for 


22  Parklmrst  v.  Kinsman,  2 
Blatehf.    78. 

23  U.  S.  V.  Capital  City  Diary  Co., 
252   Fed.   900. 

24  United  States  v.  Great  Lakes 
Towing  Co.  et  al.,  217  Fed.  656 
(District  Court,  N.  D.  Ohio,  E.  D. 
June  15,  1914).  U.  S.  v.  Capital 
City  Dairy  Co.,  252  Fed.  900  (Dis- 
trict Court,  S.  D.  Ohio,  E.  D.  April 
13,  1915). 

25  Hicks  V.  Hicks,  3  Atk.  277; 
Union  Tr.  Co.  v.  111.  M.  K.  Co.,  117 
U.  S.  434,  29  L.  ed.  963;  Sage  v. 
M.  &  L.  E.  Co.,  125  U.  S.  361,  31 
L.  ed.  694;  Kerr  on  Receivers  (2d 
Am.  ed.),  16-18. 


26  Pitcher  V.  Helliar,  Dick.  580; 
High  on  Receivers,  §§  725-732. 

27  Butler  v.  Freeman,  Amb.  301; 
Kiffin  V.  Kiffin,  cited  in  1  P.  Wms. 
705;  Kerr  on  Receivers  (2d  Am. 
ed.),  16-18. 

28  Ex  parte  Warren,  10  Ves.  622; 
Anon.,  1  Atk.  578;  Ex  parte  Rad- 
eliffe,  J.  &  W.  639;  Kerr  on  Re- 
ceivers  (2d  Am.  ed.),  113,  114. 

2a Kerr  on  Receivers  (2d  Am.  ed.), 
113,  114,  citing  Re  Birch,  Shelf,  on 
Lun.  146;  Re  Seaman,  Shelf,  on 
Lun.  146. 


§  302a]        APPOINTMENT   OF    RF.CEIVERS    OF    CORPORATIONS 


1483 


such  appointments,  but  not  the  State  practice.^"  State  stat- 
utes, forbidding  the  appointment  of  receivers  or  the  taking  of 
possession  by  a  mortgagee  in  certain  eases,  will  not  be  followed 
by  the  Federal  eourts.^^ 

The  appointment  by  a  State  court  of  a  receiver  of  the  prop- 
erty within  the  State  of  a  foreign  corporation  engaged  in  Inter- 
state Commerce  is  not  a  regulation  of  Interstate  Commerce.'^ 
The  rules,  under  which  conflicts  between  receivers  appointed  by 
the  State  and  the  Federal  courts  are  regulated,  are  previously 
considered. ^^ 

§  302a.  Appointment  of  receivers  of  property  of  corpora- 
tions. Independently  of  statutory'  authority,  a  court  of  equity- 
wnll  ordinarily  appoint  a  receiver  of  the  property  of  a  corpora- 
tion in  onlv  nine  classes  of  cases :  Firstlv,  at  the  suit  of  mort- 
gagees,^  or  other  holders  of  liens  upon  it,  or  those  whose  claims 


30  Bates  v.  International  Co.  of 
Mexico,  84  Fe.l.  518;  Flash  v.  Wil- 
kerson,  22  Fed.  689;  Feehlieimer  v. 
Baum,  37  Fed.  167;  Tomlinson  & 
W.  Mfg.  Co.  V.  Shatto,  34  Fed.  380; 
Davis  V.  Gray,  16  Wall.  203,  219, 
220,  21  L.  ed.  447,  452,  453;  supra, 
§  82.  In  Dancel  v.  Goodyear  Shoe 
Machinery  Co.,  U.  S.  C.  C,  S.  D. 
X.  Y.,  April  8th,  1905,  in  which  the 
autlior  was  counsel.  Judge  Lacombe 
appointed  a  receiver  of  the  prop- 
erty within  the  State  of  a  foreign 
corporation,  the  defendant  to  a  suit 
in  equity,  after  a  decree  for  the  pay- 
ment of  money  by  it  and  the  return 
of  an  execution  unsatisfied.  The 
appointment  w.ts  made  by  a  petition 
at-  the  foot  of  the  decree,  which 
complied  with  the  provisions  of  the 
New  York  Code  of  Civil  Procedure 
and  also  with  the  requirements  of 
Federal  equity  practice.  No  opinion 
was  rendered. 

31  American  Nat.  Bank  v.  North- 
western M.  I.  Co.,  89  Fed.  610; 
supra,  §  83. 

See    McKinnev    v.    Kansas    Nat- 


ural Gas  Co.,  206  Fed.  772;  Adler 
V.  Campeche  Laguna  Corporation, 
257   Fed.   789. 

32  McKinney  v.  Kansas  Natural 
Gas  Co.,  206  Fed.  772. 

33  Supra,   §  55. 

§  302a.  1  Milwaukee  &  M.  R.  Co. 
V,  Soutter,  2  Wall.  510,  17  L.  ed. 
900;  Mercantile  Tr.  Co.  v.  Missouri, 
K.  &  T.  Ry.  Co.,  1  L.  R.  A.  397,  36 
Fed.  221;  Farmers'  Loan  &  Trust 
Co.  V.  Meridian  Waterworks  Co.,  139 
Fed.  661;  Strain  v.  Palmer,  C.  C.  A., 
159  Fed.  628.  But  see  Trust  &  D. 
Co.  of  Onondaga  v.  Spartanburg 
Water  Works,  91  Fed.  324.  For 
such  cases  where  a  receivership  was 
denied,  see  Farmers '  Loan  &  Tr.  Co. 
V.  Central  Park,  N.  &  E.  R.  R.  Co., 
165  Fed,  503;  Burroughs  v.  Toxa- 
way  Co.,  C.  C.  A.,  185  Fed.  435.  A 
court  of  equity  will  often  appoint  a 
receiver  of  a  railroad  in  a  suit  for 
the  foreclosure  of  a  mortgage  con- 
taining a  clause  pledging  its  tolls 
and  income,  when  it  would  not  do 
so  if  no  such  clause  were  included 
in  the  mortgage.     Tyseu  v.  Wabash 


1484 


RECEIVERS 


[§  302a 


against  the  owner  are  purely  equitable  and  cannot  otherwise 
be  enforced  or  protected.^  Secondly,  at  the  suit  of  judgment 
creditors  seeking  equitable  assets  after  executions  have  been 
returned  unsatisfied,  and  the  return  shows  that  there  is  no 
corporate  property  upon  which  a  levy  can  be  made.*  Thirdly, 
at  the  suit  of  a  creditor  with  or  without  a  judgment  when  a 
receiver  has  been  appointed  in  another  jurisdiction ;  ^  and  in 
some  cases,  such  an  ancillary  appointment  has  been  made  upon 
the  application  of  the  foreign  receiver.^  Fourthly,  at  the  suit 
of  persons  interested  in  the  property,  whether  as  stockholders  '^ 


R.  Co.,  8  Biss.  247.  "The  rights  of 
holders  of  negotiable  bonds  issued 
by  a  railroad  company  and  secured 
by  a  mortgage  on  its  projjerty  are 
not  to  be  measured  by  the  same 
rules  as  are  applied  to  an  ordinary 
mortgage  on  a  farm  or  house  and 
lot,  to  secure  one  or  two  notes  held 
by  one  mortgagee. ' '  Allen  v.  D.  & 
W.  R.  Co.,  3  Woods,  316,  326,  per 
Woods,  J. 

2  Park  V.  N.  Y.,  L.  E,  &  W,  R. 
Co.,  70  Fed.  641;  Bird  v.  People's 
Gas  &  El.  Light  Co.,  158  Fed.  903. 

3  D.  A.  Tompkins  Co.  v.  Catawba 
Mills,  82  Fed.  780,  783;  Farmers' 
L.  &  Tr.  Co.  V.  Winona  &  Str.  Ry. 
Co.,  59  Fed.  957;  Park  v.  N.  I.  V. 
&  S.  W.  R.  Co.,  70  Fed.  641 ;  Daneel 
V.  Goodyear  Shoe  Machinery  Co.,  S. 
D.  N.  Y.,  supra,  §  302,  note  30. 
Haight  &  Freese  Co.  v.  Weiss,  C.  C. 
A.,  156  Fed.  328;  certiorari  denied 
207   U.   S.   594,  52  L.  ed.  356. 

4  Covington  D.  Co.  v.  Shepherd, 
21  How.  112,  16  L.  ed.  38;  Shain- 
wald  V.  Lewis,  6  Fed.  166,  775; 
Buckeye  E.  Co.  v.  Donau  Br.  Co., 
47  Fed.  6.  See  Brown  v.  Lake  S. 
1.  Co.,  134  U.  S.  530,  534,  33  L.  ed. 
1021,  1024;  Sage  v.  Memphis  &  L. 
R.  R.  Co.,  125  U.  S.  361,  31  L.  ed. 
694. 

5  Sands  v.  E.  S.  Greeley  &  Co., 
C.    C.    A.,   88    Fed.    130,   132,    133; 


Bowker  v.  Haight  &  Freese  Co.,  S. 
D.  N.  Y.,  May  10,  1905,  per  La- 
combe,  J.,  in  which  the  author  was 
counsel.  Davis  v.  Hayden,  C.  C.  A., 
238  Fed.  734.     See  infra,  §  304. 

6  In  the  Third  Circuit,  Ee  Haight 
&  Freese  Co.,  May,  1905,  per  Mc- 
Pherson,  J.,  in  which  the  author 
was  counsel. 

7  Evans  v.  Coventry,  5  De  G.,  M. 
&  G.  911;  Powers  v.  Blue  Grass  B. 
&  L.  Ass'n,  86  Fed.  705.  But  see 
Edwards  v.  Bay  State  Gas  Co.,  97 
Fed.  942;  Hunt  v.  American  Gro- 
cery Co.,  80  Fed.  70;  Becker  v. 
Hoke,  80  Fed.  973;  Texas  C.  C.  & 
Mfg.  Ass'n  V.  Storrow,  92  Fed.  5; 
Ranger  v.  Champion  C.  P.  Co.,  52 
Fed.  609;  Aiken  v.  Colorado  River 
Irr.  Co.,  72  Fed.  591;  Columbia 
Nat.  Sand  Dr.  Co.  v.  Washed  Bar 
Sand  Dr.  Co.,  136  Fed.  710.  Cullens 
v.  Willianson,  C.  C.  A.,  229  Fed.  59, 
67.  Bassett  v.  Bickford  Bros.  Co., 
232  Fed.  895;  Welsh  v.  Union 
Casualty  Ins.  Co.,  238  Fed.  968; 
Glover  v.  Manila  Gold  Min.  &  Mill 
Co.,  19  S.  D.  559,  104  N.  W.  261; 
Wayne  Pike  Co.  v.  Hammons,  129 
Tnd.  368;  Supreme  Sitting,  etc.. 
Order  v.  Baker,  134  Ind.  293,  20 
L.  R.  A.  210.  But  see  Worth  Mfg. 
Co.  v.  Bingham,  C.  C.  A.,  116  Fed. 
785;  Parks  v.  U.  S.  Bankers'  Cor- 
poration, 140  Fed.  160. 


§  302a J        APl'OIXTMKXT    (»F    RPX'EIVERS    "f 


t'lKroKA'llONS 


148.') 


or  creditors,  even,  it  has  been  held,  creditors  without  judjiments 
or  liens,8  where  tliere  is  a  breach  of  duty  by  the  directors,  and 
an  actual  or  threatened  damage  »  of  a  serious  nature,  although 
there  is  no  insolvency.!"  Fifthly,  where  a  corporation  has 
been  dissolved  and  has  no  officer  to  attend  to  its  affaii-s.ii 
Sixthly,  where  for  a  long  time  the  corporation  has  ceased  to 
transact  business  and  its  officers  have  ceased  to  act.^^    Seventhly, 


8  Sage  V.  Memphis  &  L.  R.  R.  Co., 
125  U.  S.  361,  .'51  L.  c(l.  694;  Con- 
solidated T.  L.  Co.  V.  Kansas  C.  V. 
Co.,  48  Fed.  204;  Doe  v.  North- 
western C.  &  T.  Co.,  64  Fed.  928; 
Merchants '  Nat.  Bank  v.  Chatta- 
nooga C.  Co.,  53  Fed.  314;  King 
V.  Pomeroy,  C.  C.  A.,  121  Fed. 
287;  Kentucky,  etc.,  Ass'n  v. 
Galbreaith,  117  Ky.  66,  77  S. 
W.  371.  Neshit  v.  North  Georgia 
El.  Co.,  156  Fed.  979;  Max- 
well V.  McDaniels,  C.  C.  A., 
184  Fed.  311;  Burton  v.  R.  G. 
Peters  Salt  &  Lumber  Co.,  190  Fed. 
262;  Dill  v.  Supreme  Lodge  Knights 
of  Honor,  226  Fed.  807;  Bassett 
V.  Bickford  Bros.  Co.,  232  Fed.  89;1. 
Contra,  Leary  v.  Columbia  R.  &  S.  S. 
Nav.  Co.,  82  Fed.  775;  Texas  C.  C. 
&  Mfg.  Ass'n  V.  Storrow,  C.  C.  A., 
92  Fed.  5;  Syers  v.  Brighton  Br. 
Co.,  11  L.  T.  (N.  S.)  560;  Mills 
Northern  Ry.  of  B.  X.  Co.,  23  L.  T. 
(N.  S.)  719;  Slover  v.  Coal  Creek 
Coal  Co.,  113  Tenn.  421,  82  S.  W. 
1131,  68  L.  R.  A.  852;  McKee  v. 
City  Garbage  Co.,  140  Mich.  497, 
103  N.  W.  906.  See  Pennsylvania 
Co.  for  Insurance,  etc.,  v.  Jackson- 
ville, T.  &  K.  W.  Ry.  Co.,  C.  C.  A., 
55  Fed.  131.  That  lienors  have  a 
right  to  a  receiver  in  such  a  case  is 
held  in  Farmers'  L.  &  Tr.  Co.  v. 
Winona  &  Str.  Ry.  Co.,  59  Fed. 
957.  See  Horrick  v.  Grand  Trunk 
Ry.  Co.,  7  Upper  Can.  240. 

9  Quoted  with  approval  by  Wcll- 


liorn,  .J.,  ill  Aiken  v.  Colorado  River 
Jrr.  Co.,  72  Fed.  591,  .593.  But 
see  Carson  v.  Allegany  Window 
Glass  Co.,  189  Fed.  791.  Mer- 
chants '  &  Insurers '  Reporting  Co., 
v.  Jones,  C.  C.  A.,  220  Fed.  791; 
Ames  V.  Goldfield  Merger  Mines 
Co.,  227  Fed.  292;  Supreme  Council 
of  Royal  Arcanum  v.  Hobart,  C.  C. 
A.,  244  Fed.  385;  Lowenthal  v. 
Georgia  Coast  &  P.  R.  Co.,  233  Fed. 
1010. 

10  Columbia  Nat.  Sand  Dr.  Co.  v. 
Washed  Bar  Sand  Dr.  Co.,  i;{6  Fed. 
710.  But  see  Maxwell  v.  McDan- 
iels, C.  C.  A.,  184  Fed.  311;  Carson 
v.  Allegany  Window  Glass  Co.,  189 
Fed.  791;  Burton  v.  R.  G.  Peters 
Salt  &  Lumber  Co.,  190  Fed.  262; 
Smith  V.  Chase  &  Baker  Piano  Mfg. 
Co.,  197  Fed.  466.  In  case  of  a  life 
insurance  company,  the  court  will 
rarely  appoint  a  receiver  when  there 
is  no  apprehension  as  to  its  solv- 
ency. Watson  V.  Nat.  Life  &  Tr. 
Co..  C.  C.  A.,  189  Fed.  872. 

11  The  Late  Corporation  of  the 
Church  of  J.  C.  of  L.  D.  S.  v.  U.  S., 
136  U.  S.  1,  34  L.  ed.  478;  Lawrence 
V.  Greenwich  F.  Ins.  Co.,  1  Paige 
(N.  Y.),  587.  See  also  Hamilton  v. 
Accessory  T.  Co.,  26  Barb.  (N.  Y.) 
46;  Murray  v.  Vanderbilt,  39  Barb. 
(N.  Y.)    140. 

12  Quoted  with  approval  by  Well- 
born, J.,  in  Aiken  v.  Colorado  River 
Irr.  Co.,  72  Fed.  591,  593;  Warren 
V.  Fake,  49  How.  Pr.  (N.  Y.)  430. 


1486 


RECEIVERS 


[§  302a 


where  the  governing  body  is  so  divided  and  engaged  in  such 
mutual  contentions  that  its  members  cannot  act  together.^^ 
Eighthly,  at  the  suit  of  unsecured  creditors,  where  the  cor- 
poration makes  no  defense  and  waives  its  right  to  require  the 
complainants  to  reduce  their  claims  to  judgment,  upon  proof 
that  the  corporation  is  insolvent,  that  unless  the  court  inter- 
feres its  business  will  be  interrupted  by  the  levy  of  judgments 
and  executions,  and  that  the  continuance  of  such  business  is 
necessary  for  the  convenience  of  the  public,  or  possibly  when 
such  interruption  will  greatly  depreciate  the  value  of  its  assets.^* 


13  Featherstone  v.  Cooke,  L.  R.  16 
Eq.  298 ;  Trade  Auxiliary  Co. '  v. 
Vickers,  L.  R.  16  Eq.  303;  D.  A. 
Tompkins  Co.  v.  Catawba  Mills,  82 
Fed.  780.  For  the  appointment  of 
a  receiver  because  of  a  controversy 
between  bondholders,  see  Benedict 
V.  St.  Joseph  &  W.  R.  Co.,  19  Fed. 
173.  For  an  extraordinary  case, 
where  a  receiver  was  appointed  be- 
cause of  a  dispute  with  one  stock- 
holder, see  Arents  v.  Blackwell's  D. 
T.  Co.,  107  Fed.  338. 

14  Ee  Metropolitan  Railway  Re- 
ceivership, 208  U.  S.  90,  52  L.  ed. 
403.  See  Hollins  v.  Brierfield  C.  & 
I.  Co.,  150  U.  S.  371,  37  L.  ed.  1113; 
Sage  V.  Memphis  St.  R.  Co.,  125  U. 
S.  361,  31  L.  ed.  694;  Consolidated 
T.  Co.  V.  Kansas  C.  T.  Co.,  43  Fed. 
204;  Doe  v.  Northwestern  C.  &  T. 
Co.,  64  Fed.  928;  Merchants'  Nat. 
Bank  v.  Chattanooga  C.  Co.,  53  Fed. 
314;  Park  v.  N.  Y.,  L.  E.  &  W.  R. 
Co.,  70  Fed.  641;  Enos  v.  N.  Y.  & 
O.  R.  Co.,  103  Fed.  107.  But  see 
Leary  v.  Columbia  &  P.  S.  Nav.  Co., 
82  Fed.  775;  Texas  C.  C.  &  Mfg.  Co. 
V.  Storrow,  C.  C.  A.,  92  Fed.  5. 
' '  Apart  from  statutes,  moreover, 
the  law  of  receiverships  has  gone 
through  a  curious  course  of  develop- 
ment with  respect  to  corporations. 
The  rule  has  been  uniformly  stated 
in    the    books    and    is    still    insisted 


upon  that,  in  the  absence  of  statu- 
tory authority,  a  court  of  equity  has 
no  power  to  appoint  a  receiver  ■  even 
of   an   insolvent   corporation.     It  is 
said  that  such  a  court  has  no  inher- 
ent power  to  wind  up  a  corporation 
and    that    it    cannot    accomplish   by 
indirection  that  which  it  cannot  do 
directly.      And   it   is   perfectly   true 
that   the   administration   of   the   af- 
fairs of  a  corporation  by  a  receiver 
and    the    distribution    of    its    assets 
v-hile    not    destroying   its   corporate 
existence   do   leave  it   a  mere   shell. 
Nevertheless  exceptions   to   the  rale 
have    been    evolved    which    are,    in 
some  aspects,  as  broad   as  the   rule 
itself.     One  of  these  exceptions  is  in 
the  case  of  creditors'  bills.     Courts 
of  equity  long  ago  lent  their  assist- 
ance to  common  law  courts  to  enable 
I>artieular     judgment     creditors     to 
reach,    through    receivers,    property 
beyond     the     reach     of     execution. 
These  suits  soon  broadened  in  scope 
and  were  treated  as  equitable  levies 
in   favor   of  all   judgment   creditors 
entitled    to     seize    the    defendant's 
property — a  substitute  for  separate 
I/roeeedings.     In  these  suits  no  dis- 
tinctions were  drawn  between  corpo- 
rations  and  individuals  and   out   of 
them  tlie  practice  has  grown  up  and 
become     established     of    permitting 
creditors  having  judgments  to  apply 


§  302a] 


APPOINTMENT   OP    RECEIVERS    OF    CORPORATIONS  1487 


Such  an  appointment  has  been  said  to  have  the  same  effect 
as    the    legislative    declaration    of    a    moratorium.^^      Such    an 
appointment  cannot  be  attacked  collaterally  although  made  at 
the  suit  of  a  creditor   whose  lien  is  trivial  or  lictitious  and 
the  statements  in  the  bill  are  false  or  grossly  exaggerated-^^ 
And  ninthly,  in  a  few  cases  receivers  have  been  appointed  at 
the  application  of  the  corporations  themselves,  made  before  de- 
fault in  the  payment  of  mortgage  interest,  where  it  was  for 
the  interest  of  the  public  that  the  corporate  business,  the  opera- 
tion of  a  railroad,  should  be  continued  without  interruption,  it 
was  hopelessly  insolvent,  and  there  was  danger  of  attempts  by 
creditors  to  gain  preference  by   attachments  or  otherwise,   in 
such   a  manner   as  would   have  stopped  the  operation   of   the 

railroad.^' 

Receivers  will  also  be  appointed  in  cases  authorized  by  the 
statutes  of  the  State  where  the  Federal  court  is  held." 

Independently  of  statutory  authority  insolvency  alone  is  not 
a  sufficient  cause  for  appointment  of  a  receiver  for  a  corpora- 
tion.i9  It  has  been  held  that,  in  a  suit  against  a  corporation, 
a  consent  to  the  appointment  of  a  receiver,  signed  by  the  presi- 
dent, will  not  be  recognized  where  it  appears  from  the  plead- 
ino-s'that  he  is  an  interested  party  adverse  to  the  company,  and 


to   courts  of  equity   to  take  posses- 
sion  of   the   assets   of    corporations 
and     undertake     througli     receivers 
their    general    administration.      And 
now    that    which    was    formerly    re- 
garded  as   the   essential   thing — the 
judgment — is  unnecessary  unless  the 
corporations   object.     Thus   is   illus- 
trated anew  the  vainness  of  saying 
what    courts    of    equity    cannot    do. 
The    practice    of    making    such    ap- 
pointments has  become  particularly 
well  established  in  the  case  of  quasi 
public  corporations  whore  the  inter- 
ests of  the  public  re(iuire  continuous 
and  continued  operation  and  where, 
generally,  the  bankruptcy  act  is  not 
available."     Pennsylvania  Steel  Co. 
V.  New  York  City  Ky.  Co.,  C.  C.  A., 
198  Fed.  721. 

16  Scattergood     v.     Am.     Pipe     & 


Construction  Co.,  247  Fed.  712. 

16  Pacific  Coast  Pipe  Co.  v.  Con- 
rad City  Water  Co.,  C.  C.  A.,  24.5 
Fed.  81. 

l7\Val)ash,  St.  L.  &  P.  Ry.  Co. 
V.  Central  Tr.  Co.,  22  Fed.  138; 
s.  c,  22  Fed.  272;  s.  c,  22  Fed., 
.-i;i,  51.5;  s.  c,  23  Fed.  513,  29  Fed. 
618;  Brassoy  v.  N.  Y.  &  N.  E.  R. 
Co.,  19  Fed.  663.  Cf.  Quincy,  Mo. 
&  Pac.  Ry.  Co.  v.  Humphreys,  145 
U.  S.  82,  95,  36  L.  ed.  632,  636. 
Contra,  Atkins  v.  Wabash,  St.  L.  & 
T».  Ry.  Co.,  29  Fed.  161;  Hugl>  v, 
McRae,  Chase  466. 

18  Alder  v.  Campeche  Laguna 
Corp.,  257  Fed.  789.  McKiuney  v. 
Kansas  Natural  Gas  Co.,  206  Fed. 
772. 

19  Alder  v.  Campeche  Laguua 
Corp.,    257    Fed.    789. 


1488 


RECEIVERS 


[§  302a 


no  authority  from  the  directors  to  give  the  consent  is  shown.^® 
It  has  been  said:  that  "a  managing  receivership  is  never  un- 
dertaken, except  with  the  view  to  winding  up  the  affairs  of  the 
business  and  the  sale  of  its  property ;  the  business  being  taken 
over  and  continued,  in  order  that  the  whole  may  be  disposed 
of  in  the  end  as  a  going  concern. "  21  It  has  been  held,  that  a 
receiver  should  not  be  appointed  merely  for  the  purpose  of 
bringing  a  suit.^^  It  has  been  held  that  a  receiver  of  the  assets 
of  a  building  and  loan  association  may  be  appointed,  when  they 
are  insufficient  to  carry  to  completion  the  purposes  of  its  crea- 
tion;  although  it  has  enough  to  pay  all  debts  that  have  ma- 
tured.2^  The  court  will  appoint  a  receiver  of  the  assets  of  a 
foreign  corporation  in  a  proper  case,  when  the  latter  has  sub- 
mitted to  the  jurisdiction.2*  A  court  will  not  usually  appoint 
a  receiver  of  a  foreign  corporation,  which  does  not  submit  to 
the  jurisdiction,  in  a  suit  founded  upon  the  mismanagement  of 
its  officers  or  directors,  who  reside  elsewhere.'^^  A  court  has 
no  jurisdiction  to  appoint  a  receiver  of  the  property  of  a  cor- 
poration or  other  person  not  a  party  to  the  suit.^^  It  is  doubt- 
ful whether  the  receiver  of  a  corporation  can  be  appointed  by 
a  Federal  court  at  a  suit  of  a  shareholder  whose  shares  are  not 


aONesbit  v.  North  Georgia  El. 
Co.,  156  Fed.  979. 

21  Gutterson  &  Gould  v.  Lel^auon 
Iron  &  Steel  Co.,  151  Fed.  72.  The 
selection  of  the  plaintiff  by  an  offi- 
cer of  the  corporation  was  held  to 
be  insufficient  to  establish  collusion. 
Burton  v.  E.  G.  Peters  Salt  &  Lum- 
ber Co.,  190  Fed.  262. 

22  Zuber  v.  Micmac  Gold  Min.  Co., 
180  Fed.  625,  misappropriation  of 
corporate  assets;  Street  Grading 
Dist.  No.  60  of  Little  Eock,  Ark.  v. 
Hagadorn,  C.  C.  A.,  186  Fed.  451, 
to  collect  unpaid  assessments  upon 
real  estate  pledged  for  the  payment 
of  loans  used  in  public  improve- 
ments. 

23  Gunby  v.  Armstrong,  C.  C.  A., 
133  Fed.  417. 


24  Lewis  V.  American  Naval 
Stores  Co.,  119  Fed.  391;  Haight  & 
Freese  Co.  v.  Weiss,  C.  C.  A.,  156 
Fed.  328;  Dolan  v.  Universal  Fire 
Brick  Co.,  N.  J.  Eq.,  104  Atl.  86. 
But  see  Scattergood  v.  American 
Pipe  &  Construction  Co.,  C.  C.  A., 
249  Fed.  23.  It  has  been  said  that 
this  cannot  be  done  when  the  cor- 
])oration  has  no  property  of  a  fixed 
nature  within  the  district.  Primes 
Chemical  Co.  v.  Fulton  Steel  Corpo- 
ration, 224  Fed.  454. 

25  Eepublican  M.  Silver  Mines  v. 
Brown,  C.  C.  A.,  24  L.E.A.  776,  58 
Fed.  644;  Leary  v.  Columbia  E.  & 
P.  S.  Nav.  Co.,  82  Fed.  775a.  Ma- 
guire  V.  Mortgage  Co.  of  America, 
C.  C.  A.,  203  Fed.  858. 

26  Hook  V.  Bosworth,  64  Fed.  443. 


§  802  lj  J 


EXTENHIOX    OF    RECEIVERSHIPS 


1489 


worth  more  iliau  $2,000."     The  riglil  lo  apply  ior  a  reeeiver- 
iihip  of  a  corporation  may  be  lost  by  laches.^' 

Usually  a  receiver  will  not  be  appointed  at  the  suit  of  subse- 
quent lienors  over  property  of  whieli  a  mortgagee  is  in  posses- 
sion; but  an  injunction  may  be  issued  to  prevent  the  mortgagor 
from  applying  the  rents  and  profits  to  any  other  purpose  than 
the  satisfaction  of  the  mortgage.^^  It  has  been  held  that  an 
assignment  made  by  a  corporation  for  the  benefit  of  creditors 
after  the  filing  of  a  bill  for  the  appointment  of  a  receiver  will 
not  deprive   the   court  of  jurisdiction   to  appoint   a   receiver.^" 

The  appointment  of  a  receiver  will  not  be  set  aside  for  col- 
lusion, because  the  complainant  brought  the  suit  and  made  the 
application  at  the  request  of  the  corporation. ^^  Where  the  de- 
fendant corporation  ai)poared  and  submitted  to  the  jurisdiction, 
an  intervening  stockholder  or  creditor  cannot  object  to  the 
same. ^2 

The  rules  regulating  applications  for  the  appointment  of 
receivers  ovei-  i)roi)erty  in  the  eustody  of  another  court  have 
been  previously  explained. ^^  It  has  been  held  that  a  receiver 
will  not  be  appointed  to  assist  a  trust  formed  to  maintain  a 
monopoly,  or  otherwise  to  aid  in  the  prosecution  of  an  enter- 
prise against  public  policy.^* 

§  302b.  Extension  of  receiverships.  When  a  railroad  is  in 
the  hands  of  receivers  pending  a  foi-eclosure  suit,  the  court  may 
extend  the  receivership  over  a  portion  of  the  road  for  the 
benefit  of  an  intorvenor  claiming  a  prior  lien  thereupon.^  Where 
a  receiver  has  l)een  appointed  at  the  suit  of  a  judgm(>nt  or 
other  creditor,  liis  suit  may  be  consolidated  with  a  subse(|uent 


27  Robinson  v.  West  Va.  L.  Co., 
90  Fed.  770.  Contra,  Towle  v. 
American  B.  L.  &  Tnv.  Soc,  60  Fed. 
131.     Supra,  H  lo,  16. 

28  Roinaip  v.  Broken  Arrow  C.  & 
Min.  Co.,  114  Fed.  194. 

29  r.  S.  V.  Marich,  44  Fed.  10. 

30  Belmont  Nail  Co.  v.  Columbia 
I.  &  S.  Co.,  46  Fed.  8. 

31  llickerman  v.  Northern  Tr.  Co., 
176  V.  S.  181,  44  L.  ed.  42:^;  Blair 
V.  Chicago.  201  U.  S.  400,  r,0  L.  ed. 
801 ;    Be   Metropolitan    Railway   Re- 


ceivership, 208  IT.  S.  90,  52   L.   ed. 
40:!. 

32  AV  ^tetropolitan  Receivership, 
208  V.  S.  90,  52  L.  ed.  403;  Lewis 
V  American  Naval  Stores  Co.,  119 
Fed.  .391.     Supra,  §§258-260. 

33  Supra.  §  55.  See  Morrill  v. 
Am.  Reserve  Bond  Co.,  151  Fed.  305. 

34  Am.  B.  &  Mfgf.  Co.  v.  Klotz.  44 
Fed.  721. 

§  302h.  1  Mercantile  T.  Co.  v. 
Mo.,  K.  &  T.  Rv.  Co..  41  Fed.  8.  9. 


1490 


RECEIVERS 


[§  302b 


foreclosure  suit,  and  the  receivership  extended  for  the  benefit 
of  the  mortgagee ;  ^  or  his  receivership,  so  far  as  concerns  any 
profits  to  which  the  mortgagee  is  entitled,  may  be  extended  for 
the  benefit  of  such  mortgagee.^  Where  a  receiver  was  appointed 
at  the  suit  of  a  creditor,  with  the  requisite  difference  of  citizen- 
ship, the  mortgagee  has  been  allowed  to  intervene,  file  a  cross- 
bill to  foreclose  the  mortgage  and  take  the  benefit  of  the  re- 
ceivership, although  the  mortgagor  and  mortgagee  were  citizens 
of  the  same  State.*    Where  receivers  of  a  railroad  covered  by 


2  Lloyd  V.  Chesapeake,  C.  &  S.  W. 
R.  Co.,  65  Fed.  351. 

Bankers'  Trust  Co.  v.  Missouri, 
K.  &  T,  Ey.  Co.,  C.  C.  A.,  251  Fed. 
789,  793.  Per  Sanborn,  J.:  "The 
extension  of  a  receivership  of  an 
entire  system  of  railroads  and  its 
receipts,  based  upon  liens  which 
have  attached  thereto,  over  a  part 
of  that  system  and  the  receipts  of 
that  part  which  are  covered  by  a 
prior  or  other  mortgage,  deprives 
those  secured  by  the  lien  of  the  lat- 
ter mortgage  of  no  rights  or  equities 
which  they  would  liave  had  if  a 
separate  receiver  of  the  property 
covered  by  their  mortgage  had  been 
appointed.  The  legal  rights  of  all 
parties,  the  priorities  of  all  liens, 
remain  the  same  in  either  case. 
There  was,  therefore,  no  violation 
of  any  legal  right,  or  any  substantial 
equity,  by  the  extension  of  the  re- 
ceivership of  Mr.  Sehaff  over  the 
entire  property  to  the  part  of  that 
property  covered  by  the  appellant's 
mortgage,  and  the  impounding  of 
the  earnings,  income  and  profits 
thereof  for  the  benefit  of  the  bond- 
holders secured  by  that  mortgage, 
by  means  of  that  extension  rather 
than  by  appointment  of  a  separate 
receiver  therefor.  It  was  discre- 
tionary with  the  court  below  which 
course  it  should  pursue,  and  in  view 
of  the  facts  that  the  entire  railway 


system  was  in  the  possession  of  the 
receiver  for  the  benefit  of  the  hold- 
ers of  all  liens,  thereon,  that  there 
were  many  liens,  some  upon  the  en- 
tire system,  many  upon  parts  there- 
of respectively,  that  separate  receiv- 
ers for  separate  liens  would  mul- 
tiply the  labor  and  expenses  of  the 
litigation  and  of  the  administration 
and  operation  of  the  property,  that 
receivers  are  but  the  hands  of  the 
court,  that  the  property  ordered 
into  the  possession  of  one  or  many 
of  its  receivers  must  after  all  be 
held,  administered  and  disposed  of, 
and  the  issues  arising  in  all  these 
suits  must  be  decided,  by  one  and 
the  same  court,  it  was  not  abuse  of, 
but  a  just  and  wise  exercise  by  the 
court  below  of,  its  judicial  discre- 
tion to  extend  the  receivership  al- 
ready in  existence  of  all  the  rail- 
way company 's  property  over  that 
part  of  its  property  covered  by  the 
ajipellant  's  mortgage,  and  the  re- 
ceipts therefrom,  for  the  benefit  of 
the  l)ondholders  secured  by  that 
mortgage,  and  to  refuse  to  appoint 
a  separate  receiver  therefor. ' ' 

3  London-Arizona  Consol.  Copper 
Co.  v.  Gila  C.  S.  Co.,  257  Fed.  324. 

4  Park  V.  N.  Y.,  L.  E.  &  W.  R. 
Co.,  64  Fed.  190;  s.  c,  70  Fed.  641. 
In  another  case  it  was  held,  that 
since  the  receiver  already  appointed 
acted    for    all    parties    in    interest. 


§  302c] 


RECEIVERS   OF   NATIONAL    BANKS 


1491 


a  lease  liad  been  appointed  in  a  suit,  to  which  the  lessee  was  a 
defendant  and  admitted  its  insolvency,  it  was  held  proper  to 
extend  the  receivership  over  the  property  of  the  lessor  upon  the 
latter 's  petition  alleging  that  it  also  was  insolvent.^  Where  a 
receiver  had  been  appointed  over  the  property  of  a  corporation 
which  controlled  a  railroad  company  through  the  ownership  of 
a  majority  of  its  stock,  it  was  held  that  he  slionld  surrender 
possession  to  a  receiver  of  tlie  latter  corporation  snl)sequently 
appointed  by  a  State  court.^ 

It  seems  to  be  improper  to  include  in  an  order  extending  a 
receivership  for  the  benefit  of  a  mortgagee  a  direction  that  the 
acceptance  of  the  benefit  shall  be  deemed  a  consent  to  all  admin- 
istrative orders  previously  made  in  the  case,"'^  but  such  an  order 
will  not  be  reversed  unless  it  is  shown  that  one  of  the  previous 
orders  was  erroneous  and  prejudicial  to  the  interest  of  the 
appellant. 8 

§302c.  Receivers  of  National  Banking  Association.  The 
Revised  Statutes  provide,  ■'Whenever  any  national  banking  as- 
sociation fails  to  redeem  in  the  lawful  money  of  the  United 
States  any  of  its  circulating  notes,  upon  demand  of  payment 
duly  made  during  the  usual  hours  of  business  at  the  offices  of 
such  association,  or  at  its  designated  place  of  redemption,  the 
holder  may  cause  the  same  to  be  protested,  in  one  package,  by 
a  notary  public,  unless  the  president  or  cashier  of  the  associa- 
tion whose  notes  are  presented  for  payment,  or  the  president 
or  the  cashier  of  the  association  at  the  place  at  which  they  are 
redeemable  offers  to  waive  demand  and  notice  of  the  protest, 


there  was  no  reason  for  granting  a 
subsequent  motion  by  the  trustees 
for  the  extension  of  the  receivership 
or  the  appointment  of  a  new  re- 
ceiver. Bird  V.  People's  Gas  &  El. 
Light  Co.,  158  Fed.  903. 

6  Ee  Metropolitan  Railway  Re- 
ceivership, 208  U.  S.  90,  52  L.  ed. 
403.  The  fact  that  there  may  be  a 
confliet  of  interests  as  to  the  dis- 
tribution or  application  of  the  earn- 
ings of  the  receivership,  was  held 
not  to  be  a  reason  for  the  appoint- 
ment of  separate  receivers  to  oper- 


ate the  property  of  several  lessors 
of  the  same  system  of  street  rail- 
roads, s.  c,  as  Pennsylvania  Steel 
Co.  V.  X.  Y.  City  Ry.  Co.,  160  Fed. 
221;   infra,   §§   306,  308,  320. 

6  Central  R.  &  B.  Co.  v.  Farmers 
L.  &  Tr.  Co.,  56  Fed.  357. 

7  Bankers  Trust  Co.  v.  Missouri, 
K.  &  T.  Ry.  Co.,  C.  C.  A.,  251  Fed. 
789,  796. 

8  Rankers    Trust    Co.    v.    Missouri, 
K.  &  T.  Ry.  Co.,  C.  C.  A..  251  Fed 
789,  798. 


1492  RECEIVERS  [§  302c 

and  ill  pursuance  of  such  offer,  makes,  signs  and  delivers  to 
the  party  making  such  demand  an  admission  in  writing,  stating 
the  time  of  the  demand,  the  amount  demanded  and  the  fact 
of  the  non-payment  thereof.  The  notary  public,  on  making 
such  protest,  or  upon  receiving  such  admission  shall  forthwith 
forward  such  admission  of  notice  of  protest  to  the  Comptroller 
of  the  Currency,  retaining  a  copy  thereof.  If,  however,  satis- 
factory proof  is  produced  to  the  notary  public  that  the  pay- 
ment of  the  notes  demanded  is  restrained  by  order  of  anv  court 
of  competent  jurisdiction,  he  shall  not  protest  the  same.  When 
the  holder  of  any  notes  causes  more  than  one  note  or  package 
to  be  protested  on  the  same  day,  he  shall  not  receive  pay  for 
more  than  one  protest. "  ^ 

"On  receiving  notice  that  any  national  banking  association  has 
failed  to  redeem  any  of  its  circulating  notes,  as  specified  in 
the  preceding  section,  the  Comptroller  of  the  Currency,  with 
the  concurrence  of  the  Secretary  of  the  Treasury,  may  appoint 
a  special  agent,  of  whose  appointment  immediate  notice  shall 
be  given  to  such  association,  who  shall  immediately  proceed  to 
ascertain  whether  it  has  refused  to  pay  its  circulating  notes  in 
the  lawful  money  of  the  United  States,  when  demanded,  and 
shall  report  to  the  Comptroller  the  fact  so  ascertained.  If, 
from  such  protest,  and  the  report  so  made,  the  Comptroller  is 
satisfied  that  such  association  has  refused  to  pay  its  circulating 
notes  and  is  in  default,  he  shall,  within  thirty  days  after  he 
has  received  notice  of  such  failure,  declare  the  bonds  deposited 
by  such  association  forfeited  to  the  United  States,  and  they 
shall  thereupon  be  so  forfeited. ' '  ^ 

"On  becoming  satisfied,  as  specified  in  sections  fifty-two  hun- 
dred and  twenty-six  and  fifty-two  hundred  and  twenty-seven, 
that  association  has  refused  to  pay  its  circulating  notes  as 
therein  mentioned,  and  is  in  default,  the  Comptroller  of  the 
Currency  may  forthwith  appoint  a  receiver,  and  require  of 
him  such  bond  and  security  as  he  deems  proper.  Such  receiver, 
under  the  direction  of  the  Comptroller,  shall  take  possession 
of  the  books,  records,  and  assets  of  every  description  of  such 
association,  collect  all  debts,  dues  and  claims  belonging  to  it, 
and  upon  the  order  of  a  court  of  record  of  competent  jurisdic- 

§302c.      lU.    S.     K.    S.,    §5226,  2  U.   S.   E.  S.,   §5221,  Comp.   St., 

Comp.  St.,   §  9813.  §  9814. 


§  302c]  RECEIVERS  OF  NATIONAL  BANKS  1493 

lion,  may  .sell  or  eomixnuid  all  bad  or  doubtful  debts  and,  on 
a  like  ordej-,  may  sell  all  the  real  and  personal  property  of  such 
association,  on  such  terms  as  the  court  shall  direct:  and  may, 
if  necessary  to  pay  the  debts  of  such  association,  enforce  the 
individual  lial)ilily  of  the  stockholders.  Such  receiver  .shall  pay 
over  all  money  so  made  to  the  Treasurer  of  the  United  States, 
subject  to  the  order  of  the  Comi^roller,  and  also  make  report 
to  the  ('(miptrollcr  (.f  all   his  acts  and    pi-oceedinfrs. 

•*]*rovi(l('d.  That  the  Comptroller  may.  if  he  deems  proper, 
deposit  any  of  the  money  so  made  in  any  rejrular  Government 
depositary,  or  in  any  State  or  National  bank  either  of  the  city 
or  town  in  Avhich  the  insolvent  bank  was  located,  or  of  a  city 
or  town  as  adjacent  thereto  as  practicable;  if  such  deposit  is 
made  he  shall  require  the  depositary  to  deposit  United  States 
bonds  or  other  satisfactory  securities  with  the  Treasurer  of  the 
United  States  for  the  safekeeping?  and  prompt  payment  of  the 
money  .so  deposited.  Such  depositary  shall  pay  upon  such  money 
interest  at  such  rate  as  the  Comptroller  may  describe,  not  less, 
however,  than  two  per  centum  per  annum  upon  the  average 
monthly  amount   of  such  deposits."  ^ 

"The  Comptroller  shall  upon  appointing  a  receiver,  cause 
notice  to  be  given,  by  advertisement  in  such  newsi)apers  as  he 
may  direct  for  three  consecutive  months,  calling  on  all  persons 
who  have  claims  against  such  association  to  present  the  same, 
and  to  make  legal  proof  thereof."* 

"From  time  to  time  after  full  provision  has  been  fir.st  made 
for  refunding  to  the  United  States  any  deficiency  in  redeeming 
the  notes  of  such  association,  the  Comptroller  shall  make  a 
ratable  dividend  of  the  money  so  paid  over  to  him  by  such  re- 
ceiver on  all  such  claims  as  may  have  been  ])roved  to  his  satis- 
faction ()!•  adjudicated  in  a  court  of  competent  jurisdiction, 
and,  as  the  proceeds  of  the  a.ssets  of  .such  as.sociation  are  paid 
over  to  him.  siiall  make  further  dividends  on  all  claims 
previously  proved  or  adjudicated ;  and  the  remainder  of  the 
proceeds,  if  any,  shall  l)e  paid  over  to  the  shareholders  of  .such 

3  r.  «.  R.  R.,  §  .5284  as  amended,  4  U.  S.   R.   S.,   §  5235,  Comp.  St., 

May  1.5,  1916,  cli.  121,  39  St.  at  L.        §9822. 
121,   Comp.   St.,   §  821. 

Fed.  Prac.  Vol.  11—24 


1494  RECEIVERS  [§  302c 

association,  or  their  legal  representatives  in  proiDortion  to  the 
stock  by  them  respectively  held.  "^ 

"Whenever  an  association  against  which  proceedings  have 
been  instituted,  on  account  of  any  alleged  refusal  to  redeem  its 
circulating  notes  as  aforesaid,  denies  having  failed  to  do  so,  it 
may,  at  any  time  within  ten  days  after  it  has  been  notified  of 
the  appointment  of  an  agent,  as  provided  in  section  fifty-two 
hundred  and  twenty-seven,  apply  to  the  nearest  circuit,  or  dis- 
trict, or  territorial  court  of  the  United  States  to  enjoin  further 
proceedings  in  the  premises:  and  such  court  after  citing  the 
Comptroller  of  the  Currency  to  show  cause  why  further  pro- 
ceedings should  not  be  enjoined  and  after  the  decision  of  the 
court  or  finding  of  a  jury  that  such  association  has  not  refused 
to  redeem  its  circulating  notes,  when  legally  presented,  in  the 
lawful  money  of  the  United  States  shall  make  an  order  enjoin- 
ing the  Comptroller,  and  any  receiver  acting  under  his  direc- 
tion, from  all  further  proceedings  on  account  of  such  alleged 
refusal.  "6 

"Whenever  any  national  banking  association  shall  be  dis- 
solved, and  its  rights,  privileges  and  franchises  declared  for- 
feited, as  prescribed  in  section  fifty-two  hundred  and  thirty- 
nine  of  the  Revised  Statutes  of  the  United  States,  or  whenever 
any  creditor  of  any  national  banking  association  shall  have 
obtained  a  judgment  against  it  in  any  court  of  record  and  made 
application,  accompanied  by  a  certificate  from  the  clerk  of  the 
court  stating  that  such  judgment  has  been  rendered  and  has 
remained  unpaid  for  the  space  of  thirty  days,  or  whenever  the 
Comptroller  shall  become  satisfied  of  the  insolvency  of  a  na- 
tional banking  association  he  may,  after  due  examination  of 
its  affairs,  in  either  case,  appoint  a  receiver  who  shall  proceed 
to  close  up  such  association,  and  enforce  the  personal  liability 
of  the  shareholders,  as  provided  in  section  fifty-two  hundred 
and  thirty-four  of  said  statutes. ' '  ' 

"Whenever  any  association  shall  have  been  or  shall  be  placed 
in  the  hands  of  the  receiver,  as  provided  in  section  fifty-two 
hundred   and   thirty-four    and   other   sections   of    the    Revised 

5U.   S.  E.  S.,   §5236,   Comp.   St.,  7  Act   of  June   30,   1876,   eh.   1.56, 

§  9823.  §  1.    19    St.    at    L.    63,    Comp.    St., 

6  IT.   S.  E.   S.,   §  5237,   Comp.  St.,        §  9826. 
§  9824. 


J;  ;:{02c-j  RECEIVERS   OP   NATIONAL   BANKS  1495 

Statutes  of  the  United  States  and  when  as  provided  in  section 
fifty-two  hundred  and  thirty-six  thereof,  the  Comptroller  of  the 
Currency  shall  have  i)aid  to  each  and  every  creditor  of  such 
association,  not  including  shareholders  who  are  creditors  of 
such  association,  whose  claim  or  claims  as  such  creditors  shall 
have  been  proved  or  allowed  as  therein  prescribed,  the  full 
amount  of  such  claims  and  all  expenses  of  the  receivership  and 
the  redemption  of  the  circulating  notes  of  such  association  shall 
have  been  provided  for  by  depositing  lawful  money  of  the 
United  States  with  the  Treasury  of  the  United  States,  the 
Comptroller  of  the  Currency  shall  call  a  meeting  of  the  share- 
holders of  such  association  by  giving  notice  thereof  thirty  days 
in  a  newspai)er  published  in  the  town,  city  or  county  where 
the  business  of  such  association  was  carried  on,  or  if  no  news- 
paper is  there  published,  in  the  newspaper  published  nearest 
tTiereto.  At  such  meeting  the  shareholders  shall  determine 
whether  the  receiver  shall  be  continued  and  shall  wind  up  the 
affairs  of  such  association,  or  whether  an  agent  shall  be  elected 
for  that  purpo<;e  and  in  so  determining  the  said  shareholders 
shall  vote  by  ballot,  in  person  or  by  proxy,  each  share  of  stock 
entitling  the  holder  to  the  vote,  and  the  majority  of  the  stock 
in  value  and  number  of  shares  shall  be  necessary  to  determine 
whether  the  said  receiver  shall  be  continued,  or  whether  an 
agent  shall  be  elected.  Tn  case  such  majority  shall  determine 
that  the  said  receiver  shall  be  continued,  the  said  receiver  shall 
thereupon  proceed  witli  the  execution  of  his  trust,  and  shall 
sell,  dispose  of,  or  otherwise  collect  the  assets  of  the  said  asso- 
ciation and  shall  possess  all  the  powers  and  authority,  and 
be  subject  to  all  the  duties  and  liabilities  originally  conferred 
or  imposed  upon  him  by  his  a])pointment  as  such  receiver,  so 
far  as  the  same  remain  ap]ilicable.  Tn  case  the  said  meeting 
shall,  by  the  vote  of  a  majority  of  the  stock  in  value  and 
number  of  shares,  determine  that  an  agent  shall  be  elected,  the 
said  meeting  shall  thereupon  proceed  to  elect  an  agent,  voting 
by  ballot,  in  person  or  by  proxy,  each  share  of  stock  entitling 
the  holder  to  one  vote,  and  the  person  who  shall  receive  votes 
representing  at  least  a  majority  of  stock  in  value  and  number 
shall  be  declared  the  agent  for  the  purposes  hereinafter  pro- 
vided :  and  whenever  any  of  the  shareholders  of  the  associa- 
tion shall  after  the  election  of  such  agent,  have  executed  and 


1496  RECEIVERS  [§  302c 

filed  a  bond  to  the  satisfaction  of  tlie  Comptroller  of  the  Cur- 
rency conditioned  for  the  payment  and  discharge  in  full  of 
each  and  every  claim  that  may  thereafter  be  proved  and  allowed 
by  and  before  a  competent  court,  and  for  the  faithful  per- 
formance of  all  and  singular  duties  of  such  trust,  the  Comp- 
troller and  the  receiver  shall  thereupon  transfer  and  deliver 
to  such  agent  all  the  undivided  or  uncollected  or  other  assets 
of  such  association  then  remaining  in  the  hands  or  subject  to 
the  order  and  control  of  said  Comptroller  and  said  receiver  or 
either    of   them;    and   for   this  purpose   said    Comptroller   and 
said  receiver  are  hereby  severally  empowered  and  directed  to 
execute  any  deed,  assignment,  transfer,  or  other  instrument  in 
writing  that  may  be  necessary  and  proper ;  and  upon  the  execu- 
tion and  delivery  of  such  instrument  to  the  said  Comptroller 
and  the  said  receiver  shall  by  virtue  of  this  Act  be  discharged 
from   any   and   all  lia])ilities   to   such   association   and   to   each 
and  all  the  creditors  and  shareholders  thereof.     Upon  receiving 
such  deed,  assignment,  transfer,  or  other  instrument  the  person 
elected  such  agent  shall  hold,  control,  and  dispose  of  the  assets 
and  property  of  such  association  which  he  may  receive  under 
the  terms  hereof  for   the   benefit   of  the   shareholders   of   such 
association,  and  he  may  in  his  own  name,  or  in   the  name  of 
such  association,  sue  and  be  sued  and  do  all  other  lawful  acts 
and  things  necessary  to  finally  settle  and  distribute  the  assets 
and  property  in  his  hands  and  may  sell,  compromise,  or  com- 
pound the  debts  due  to  such  association,  with  the  consent  and 
approval  of  the  district  or  circuit  court  of  the  United  States 
for  the  district  where  the  business  of  such  association  was  car- 
ried on,  and  shall  at  the  conclusion  of  his  trust  render  to  such 
district   or  circuit  court  a  full  account  of  all  liis  proceedings, 
receipts  and  expenditures  as  such  agent,  which  court  shall,  upon 
due  notice,  settle,  and  adjust  such  accounts  and  discharge  said 
agent  and  the  sureties  upon  said  bond. 

"And  in  case  any  such  agent  so  elected  shall  refuse  to  serve,  or 
die,  resign,  or  be  removed  any  shareholder  may  call  a  meeting 
of  the  shareholders  of  such  association  in  the  town,  city,  or 
village  where  the  business  of  the  said  association  was  carried 
on,  by  giving  notice  thereof,  for  thirty  days  in  a  newspaper 
published  in  said  town,  city,  or  village,  or  if  no  newspaper  is 
there  published,  in  the  newspaper  published  nearest  thereto,  at 


§  302c J  RECEIVERS    OF    NATIONAL    BANKS  14!)7 

which  meeting  the  shareholders  shall  elect  an  agent,  voting  by 
ballot  in  person,  or  by  proxy,  each  share  of  stock  entitling  the 
holder  to  one  vote,  and  when  such  agent  shall  have  received 
votes  representing  at  least  a  majority  of  the  stock  in  value  and 
number  of  shares  and  shall  have  executed  a  bond  to  the  share- 
holders conditioned  for  the  faitliful  performance  of  his  duties, 
in  the  penalty  fixed  by  the  shareholders  at  said  meeting  with 
two  sureties,  to  be  approved  by  a  judge  of  a  court  of  record, 
and  file  said  bond  in  the  office  of  the  clerk  of  a  court  of  record  in 
the  county  where  the  business  of  said  association  was  carried 
on,  he  shall  have  all  the  rights,  powers,  and  the  duties  of  the 
agent  first  elected  as  hereinbefore  provided.  At  any  meeting 
held  as  hereinbefore  provided  administrators  or  executors  of 
deceased  shareholders  may  act  and  sign  as  the  decedent  might 
have  done  if  living,  and  guardians  of  minors  and  trustees  of 
other  persons  may  so  act  and  sign  for  their  ward  or  wards  or 
cestui  que  trust.  The  proceeds  of  the  assets  or  property  of 
such  as.sociation  which  may  be  undistributed  at  the  time  of  such 
meeting  or  may  be  subse(iuently  received  shall  be  distributed 
as  follows : 

"First.  To  pay  the  expenses  of  the  execution  of  the  trust  to 
the  date  of  such  payment. 

■'Second.  To  ])ay  any  amount  or  amounts  which  have  been 
paid  by  any  shareholder  or  shareholders  of  such  association  upon 
and  by  reason  of  any  and  all  assessments  made  upon  the  stock 
of  such  association  by  the  order  of  the  Comptroller  of  the 
Currency  in  accordance  with  the  provisions  of  the  statutes  of 
the  United  States:  and 

"Third.  The  balance  ratably  among  such  stockholders,  in 
proportion  to  the  number  of  shares  held  and  owned  by  each. 
Such  distribution  shall  be  made  from  tiiue  to  time  as  the  proceeds 
shall  l)e  i-eceived  and  as  shall  be  deemed  advisable  by  the  said 
Comptroller  or  said  agent.''* 

"Whenever  the  receiver  of  anj-  national  bank  duly  appointed 
by  the  Comptroller  of  the  Cun-ency,  and  who  shall  have  duly 
qualified  and  entered  upon  the  discharge  of  his  trust,  shall  find 
it  in  his  o])inion  necessary,  in  order  to  fully  ]irotect  and  benefit 

8  Ibid  as  amended  August  .3,  Manli  2.  1897.  cli.  354,  29  St.  at 
1892,    ell.    :\m,    27    St.    at    L.    .•?45,       1..    (500,    Comp.   St.,    §9827. 


1498 


RECEIVERS  [§  302c 


his  said  trust,  to  the  extent  of  any  and  all  equities  that  such 
trust  may  have  in  any  property,  real  or  personal,  by  reason  of 
any  bond,  mortgage,  assignment,  or  other  proper  legal  claim 
attaching  thereto,  and  which  said  property  is  to  be  sold  under 
any  execution,  decree  of  foreclosure,  or  proper  order  of  any 
court  of  jurisdiction,  he  may  certify  the  facts  in  the  case,  to- 
gether with  his  opinion  as  to  the  value  of  his  property  to  be 
sold,  and  the  value  of  the  equity  his  said  trust  may  have  in  the 
same,  to  the  Comptroller  of  the  Currency  together  with  a  re- 
quest for  the  right  and  authority  to  use  and  employ  so  much 
of  the  money  of  said  trust  as  may  be  necessary  to  purchase  such 
property  at  such  sale."  ^ 

•  "Such  request,  if  approved  by  the  Comptroller  of  the  Cur- 
rency shall  be,  together  with  the  certificate  of  facts  in  the  case, 
and  his  recommendation  as  to  the  amount  of  money  which,  in 
his  payment,  should  be  used  and  employed,  submitted  to  the 
Secretary  of  the  Treasury,  and  if  the  same  shall  likewise  be 
approved  by  him,  the  request  shall  be  by  the  Comptroller  of  the 
Currency  allowed,  and  notice  thereof,  with  copies  of  the  re- 
quest, certificate  of  facts,  and  indorsement  of  approvals,  shall 
be  tiled  with  the  Treasurer  of  the  United  States."  i° 

"Whenever  any  such  request  shall  be  allowed  as  hereinbefore 
provided,  the  said  Comptroller  shall  be  and  is,  empowered  to 
draw  upon  and  from  such  funds  of  any  such  trust  as  may  be 
deposited  with  the  Treasurer  of  the  United  States  for  the  benefit 
of  the  bank'  in  interest,  to  the  amount  as  may  be  recommended 
and  allowed  and  for  the  purpose  for  which  such  allowance  was 
made :  Provided,  however,  That  all  payments  to  be  made  for 
or  on  account  of  the  purchase  of  any  such  property  and  under 
any  such  allowance  shall  be  made  by  the  Comptroller  of  the 
Currency  direct,  with  the  approval  of  the  Secretary  of  the 
Treasury,  for  such  purpose  only  and  in  such  manner  as  he  may 
determine  and  order. "  ^^ 

The  action  of  the  stockholders  of  a  National  Bank  in  voting 

9  Act  of  March  29,  1886,  ch.  28,  H  Act    of    March    29,    1886,    ch. 
§  1,    24    St.    at    L.    8,    Conip.    St.,       28,  §  3,   24  St.   at  L.   8,   Comp.  St., 

§  9828.  .  §  ^830- 

10  Act  of  March  29,  1886,  ch.  28, 
§  2,  24  St.  at  L.  8,  Comp.  St., 
§  9829. 


§  'm] 


RULES    AS    TU    ATPOINTMENT 


1499 


for  vohuitai-y  liquidation  and  the  appointment  of  a  statutory  agent 
is  equivalent  to  the  appointment  of  a  receiver  by  the  comp- 
troller in  its  eft'eet  upon  the  property  and  the  rights  of  cred- 
itors. ^^ 

The  assets  of  the  bank  thereupon  become  a  trust  fund  to  be 
administered  for  the  benefit  pro  rata  of  all  the  creditors  equally 
aiid  a  creditor  who  subsequently  obtains  a  judgment  acquires 
no  lien  whicli  gives  him  a  preference  over  the  others.^^  Until 
the  Comptroller  has  acted,  a  court  of  the  United  States  may 
appoint  a  receiver  of  the  assets  of  such  a  corporation.^*  After 
the  appointment  by  the  Comptroller  of  such  a  receiver,  it  is 
doubtful  whether  a  court  of  the  United  States  would  appoint 
another ;  and  after  the  appointment  of  a  receiver  by  a  court  of 
competent  jurisdiction,  it  is  doubtful  whether  the  Comptroller 
of  the  Currency  could  thus  interfere.^^  A  court  of  equity  may 
appoint  a  receiver  of  the  assets  of  a  national  bank  at  the  suit 
of  unsecured  creditors,  without  a  judgment  at  law,  although 
the  Comptroller  of  the  Currency  has  refused  to  make  such  an 
appointment.^^ 

§  303.  Rules  regulating  the  appointment  of  receivers.  Tt  has 
been  said  that,  in  order  to  obtain  the  a]:»i)ointnient  of  a  receiver, 
the  moving  party  must  show,  first,  either  that  he  has  a  clear 
right  to  the  property  itself,  or  that  he  has  some  lien  upon  it, 
or  that  the  property  constitutes  a  special  fund  to  which  he  has 
a  right  to  resort  for  the  satisfaction  of  his  claim;  and,  secondly, 
that  the  possession  of  the  property  by  the  defendant  was  ob- 
tained by  fraud :  or  that  the  property  itself,  or  the  income  aris- 
ing from  it,  is  in  danger  of  loss  from  the  neglect,  waste,  miscon- 
duct, or  insolvency  of  the  defendant.^     The  appointment  of  a 


12  Merchants'   Nat.   Bank   v.   Na- 
tional   Bank,    231    Fed.    556. 
"  13  Ibid. 

14  Wright  V.  Merchants'  Nat. 
Bank,  1  Flippin,  568;  Irons  v.  Mfrs. 
Nat.  Bank,  6  Biss.  301. 

15  Harvey   v.    Lord,    10    Fed.    236. 

16  King  V.  Pomeroy,  C.  C.  A.,  121 
Fed.  287,  289. 

§  303.  1  Chancellor  Buckner  in 
Mays  V.  Rose,  Freeman 's  Ch. 
(Miss.)     R.     703,     718.      See     also 


Beeclior  v.  Bininger,  7  Blatchf.  170; 
Tysen  v.  Wabash  R.  Co.,  8  Bis^^. 
247.  "Mere  insolvency  arising  from 
no  proved  fault  in  fhe  management 
of  a  private  corporation  is  not  a 
sufficient  ground.  There  should  he 
some  evidence  of  waste  or  misman- 
agement or  carelessness  or  fraud  or 
extravagance,  wantonness  or  collu- 
sion ;  some  ground  to  apprehend 
that  the  property  will  suffer  deteri- 
oration   or    serious    injury;     some- 


1500 


RECEIVERS 


[§304 


receiver  is  always  in  tlie  diseretion  ^  of  the  court,  which,  however, 
must  be  exercised  with  great  circumspection,^  and  is  subject  to 
review  b^^  an  appellate  court.*  It  has  been  said,  that  the  ap- 
pointment can  be  made  only  in  accordance  with  the  following 
rules:  "1st.  That  the  power  of  appointment  is  a  delicate  one, 
and  to  be  exercised  wdth  great  circumspection.  2nd.  That  it 
must  appear  the  claimant  has  a  title  to  the  property,  and  the 
court  must  be  satisfied  by  affidavit  that  a  receiver  is  necessary 
to  preserve  the  property.  3rd.  That  there  is  no  case  in  which 
the  court  appoints  a  receiver  merely  because  the  measure  can 
do  no  harm.  4th.  That  fraud  or  imminent  danger,  if  the  inter- 
mediate possession  should  not  be  taken  by  the  court,  must  be 
clearly  proved;  and  5th.  That  unless  the  necessity  be  of  the 
most  stringent  character,  the  court  will  not  appoint  until  the 
defendant  is  first  heard  in  response  to  the  application. ' '  ^ 

§  304.  Ancillary  receivers.  An  ancillary  receiver  is  a  re- 
ceiver appointed  in  aid  of  a  receiver  appointed  by  another 
court. 1  When  a  receiver  has  been  appointed  by  one  Federal 
District  Court,  the  others  through  judicial  comity  will  usually 
appoint  the  same  person  an  ancillary  receiver  of  so  much  of 
the  same  estate  as  is  within  their  jurisdiction,^  sometimes  join- 


thing  to  show  tfiat  there  is  dan- 
ger of  probable  loss,  or  that  some 
rights  may  be  substantially  im- 
paired." Brawley,  J.,  in  Tr.  &  D. 
Co.  V.  Spartanburg  Water  Works 
Co.,  91  Fed.  324,  .S2.5.  See  Folk 
V.  U.  S.,  C.  C.  A.,  233  Fed.  177. 

2  Owen  V.  Homan,  4  H.  L.  C.  997, 
1032. 

3  Milwaukee  &  Minn.  E.  Co.  v. 
Soutter,  2  Wall.  521,  17  L.  ed.  903. 

4Tysen  v.  Wabash  R.  Co.,  8  Biss. 
247. 

6  Le  Grand,  C.  J.,  in  Blondheim 
V.  Moore,  11  Md.  365. 

§  304.  1  Jennings  v.  Phil.  &  E, 
E.  Co.,  23  Fed.  569;  Williams  v. 
Hintermeister,  26  Fed.  889.  As  to 
bankruptcy,  see   §  612,  infra. 

2  Jennings  v.  Phil.  &  E.  E.  Co., 
23  Fed.  569;  Central  Tr.  Co.  v. 
Wabash,   St.   L.    &   P.   Ey.   Co.,   29 


Fed.  618;  Parsons  v.  Charter  Oak 
L.  Ins.  Co.,  31  Fed.  305;  Shinney 
V.  N.  A.  S.,  L.  &  Bld'g  Ass'n,  97 
Fed.  9;  Dillon  v.  Oregon,  S.  L.  & 
V.  N.  Ey.  Co.,  66  Fed.  622;  Lewis 
V.  Am.  Naval  Stores  Co.,  119  Fed. 
K91;  Piatt  V.  Philadelphia  &  E.  E. 
Co.,  54  Fed.  569 ;  N.  Y.,  P.  &  O.  E. 
Co.  V.  N.  Y.,  L.  E.  &  W.  E.  Co., 
58  Fed.  268;  Dillon  v.  Oregon,  S. 
L.  &  U.  N.  Ey.  Co.,  66  Fed.  622; 
Coltrane  v.  TempletOn,  106  Fed.  370, 
375.  See  Corn  Exchange  Bank  v. 
Eockwell,  58  111.  App.  506;  Taylor 
V.  Atlantic  G.  W.  Ey.  Co.,  57  How. 
Pr.  (N.  Y.)  9.  But  see  Mercantile 
Tr.  Co.  V.  Kanawha  &  O.  Ey.  Co., 
39  Fed.  337;  Atkins  v.  Wabash,  St. 
L.  &  P.  Ey.  Co.,  29  Fed.  161;  Sands 
V.  E.  S.  Greeley  &  Co.,  C.  C.  A.,  88 
Fed.  130,  132,  133,  Wallace,  J.: 
'  *  When  such  an  application  is  made, 


§  304]  AN'CILLARV    RECEIVERS  l.')Ol 

ing  witli   him,  a  co-receiver  who  resides   within  the  ancillary 


the  eourt  to  which  it  is  addressed 
exercises  its  own  original  jurisdic- 
tion. The  decree  in  tlie  court  of 
the  domicile  of  the  corporation  is 
evidence  in  every  other  State  that 
the  corjioration  is  insolvent  and 
that  a  ])roj)er  case  exists  in  that 
State  for  the  appointment  of  a  re- 
ceiver and  it  is  to  be  respected  ac- 
cordinu;ly  in  oliedience  to  the  con- 
stitutional provision  whereby  full 
faith  and  credit  is  to  be  given  in 
each  State  to  the  records  and  judi- 
cial proceedings  of  every  other  State 
of  the  Union.  But  it  is  for  the 
court  to  whidi  the  application  is 
made  to  decide  what  remedy  it 
.should  extend  in  the  particular  case 
and  whether  tlie  proper  administra- 
tion of  the  assets  requires  the  ap- 
pointment of  a  receiver. ' '  In  Conk- 
lin  V.  U,  S.  Shipbuilding  Co.,  V2:\ 
Fed.  9i:{,  916,  917,  Putnam,  J.: 
"Now  comes  the  question  as  to  the 
nature  of  the  bill  before  me.  If 
this  were  a  bill  asking  me  merely 
to  appoint  a  receiver  ad  mterim, 
ancillary  to  an  ad  interim  receiver 
appointed  in  New  Jersey,  I  should 
l>ay  no  attention  to  it.  But  in  my 
view  it  is  a  bill  asking  me  to  assist 
in  enforcing  a  final  decree  made  by 
the  Circuit  Court  for  the  District 
of  New  Jersey,  ajid  asking  me  to 
gather  together  assets,  or  cause 
them  to  be  gathered  together,  so 
that  they  can  ultimately  be  ac- 
counted for  where  they  should  ul- 
timately be  accounted  for;  that  is, 
for  the  Circuit  Court  for  the  Dis- 
trict of  New  Jersey.  It  is  like  any 
bill  asking  the  gathering  up  of  as- 
sets by  an  ancillary  proceeding  for 
the  purpose  of  causing  them  to  be 
remitted   to   be   disposed   of   by   the 


court     having     jurisdiction     at     the 
jilace  of  domicile.     Such  proceedings 
relate    alike    to    the    estates    of    de- 
ceased 2>erson8,  to  corporations,  and 
to    all    other   subject   matters   where 
tliere   is   occasion   for   gathering  to- 
g<'ther   and    administering,    marshal- 
ing, and  forwarding  the  net  results 
to    tiie    court    of    primary    jurisdic- 
tion.     In    my    view,   it    is    a   proper 
bill,      addressed      properly     to     the 
eipiity    side    of    this    court,    praying 
final   relief  of  the  kind   I   have  de- 
scribed,   to    which    the    motion    now 
before  us  is  purely  interlocutory   in 
its    cliaracter,    with    a    view    to    the 
temjjorary  administration  of  the  as- 
sets   until    this    bill    is    disposed    of 
on  a  hearing  on  the  merits.     There- 
fore I  find  no  difficulty  in  the  frame 
of  the  bill,  except  the   necessity  of 
making  these  two  subsidiary  corpo- 
rations parties  defendant."'     It  has 
been   held  that,  when  a  receiver  has 
been    appointed    in    a    court    where 
proceedings  in  bankrujitcy  are  pend- 
ing,   the    Bankruptcy    Court   in    an- 
other district  where  there  are  assets 
may    appoint   the    same    person    an- 
cillary   receiver    of    property    within 
its  district,  upon  the  jietition  of  th^ 
original    petitioners    in    bankruptcy. 
He    Schrom    (E.    D.    la.),    97    Fed. 
7(JU;  Re  Sutter  Bros.  (S.  D.  N.  Y.), 
l.il    Fed.   654;    Be  Benedict   (E.  D. 
Wis.),    140    Fed.    55.      Contra,    Ba 
Williams     (E.    D.    Arkansas),     Vld 
VeK\.   :i8,   40,   holding   that   such   an 
a]ii)ointiiient  could  only  be  made  l)y 
a   iilenary   hill  in  the  State  courts  oi 
tlie    Circuit    Courts    of    the    United 
States;     Koss-Meeham     Foundry    Co. 
V.  Southern  Car  &  Foundry  Co.  (W. 
D.    Tennessee),   124   Fed.   403,   409, 
holding   that   it   must   be  by  such   a 


1502 


RECEIVERS 


[§304 


jurisdiction.^  The  usual  practice  is  to  make  such  an  applica- 
tion ex  parte ;^  but  the  court  may  require  notice  to  be  given  to 
the  persons  interested  in  opposition ;  ^  and  to  subsidiary  or  con- 
stituent corporations  within  the  district,  a  majority  of  the  stock 
in  which  is  owned  bj'-  the  defendant,  when  it  is  sought  to  have 
their  stock  transferred  upon  their  books  to  the  receiver.^  Public 
notice  bj^  advertisement  in  daily  papers  in  and  outside  of  the 
ancillary  district,  and  notice  to  the  United  States  attorney  for 
the  ancillary  district,  may  also  be  required.'  The  appointment 
may  be  vacated  after  hearing  parties  interested.^ 


bill  in  a  court  of  equitable  juris- 
diction, which  may  perhaps  be  a 
District  Court  of  the  United  States, 
but  not  such  a  court  sitting  16 
bankruptcy.  In  re  Peiser  (E.  D. 
Pennsylvania),  115  Fed.  199;  a 
trust  company  in  Pennsylvania  was 
ordered  to  show  cause  in  "proceed- 
ings ancillary  to,  and  in  aid  of, 
proceedings  in  bankruptcy  in  the 
District  Court  for  the  southern  dis- 
trict of  New  York,"  why  it  should 
not  pay  property  of  the  bankrupt 
to  the  receiver  appointed  in  the  New 
York  district.  See  Ancillary  Ee- 
ceivers  in  Bankruptcy  by  L.  M. 
Friedman,  Harv.  Law  Eev.,  xviii, 
519.  For  a  form  of  a  decree  and 
order  appointing  an  ancillary  re- 
ceiver, see  Baltimore  &  O.  E.  Co. 
V.  Freeman,  C.  C.  A.,  112  Fed. 
237;  Conklin  v.  TJ.  S.  Shipbuilding 
Co.,  124  Fed.  1020.  In  Bowker  v. 
Haight  &  Freese  Co.  (where  the 
writer  was  counsel),  although  the 
corporation  was  chartered  in  New 
York,  the  Federal  court  there 
treated  its  receivership  as  ancillary 
to  the  proceedings  in  Massachu- 
setts, where  a  receiver  had  been 
first  appointed  and  the  corporation 
subsequently  appeared. 

3  Bowker  v,  Haight  &  Freese  Co., 
S.  D.  N.  Y.,  May  10th,  1905.  That 
has  been  said  to  be  the  rule  in  the 


First  Circuit,  Piatt  v.  Phil.  &  E.  E. 
Co.,  54  Fed.  569;  Coe  v.  East  &  W. 
E.  Co.  of  Ala.,  52  Fed.  531.  But 
not  in  the  district  of  Maine,  where, 
in  the  absence  of  extraordinary  cir- 
cumstances, public  notice  of  the  ap- 
plication by  publication  and  other- 
wise is  usually  required.  Conklin  v. 
U.  S.  Shipbuilding  Co.,  123  Fed. 
913;  Haydock  v.  Fisheries  Co.,  156 
Fed.  988.  It  has  frequently  been 
done  in  the  Second  Circuit.  Bu- 
chanan V.  Bay  State  Gas  Co.,  S.  D. 
N.  Y.,  October  16,  1896.  In  the 
same  case,  in  which  the  author  was 
counsel,  ancillary  receivers  were 
tluis  appointed  ex  parte  in  the  Cir- 
cuit Courts  of  New  Jersey,  Penn- 
sylvania and  Massachusetts. 

4  Bowker  v.  Haight  &  Freese  Co., 
S.  D.  N.  Y.,  May  10th,  1905;  Fair- 
view  Fluor  Spar  &  Lead  Co.  v.  Ul- 
rich,  C.  C.  A.,  192  Fed.  894. 

6  Greene  v.  Star  C.  &  P.  Car.  Co., 
99  Fed.  656;  Conklin  v.  U.  S.  Ship- 
building Co.,  123  *Ped.  913;  Hay- 
dock  V.  Fisheries  Co.,  156  Fed.  988. 

6  Conklin  v.  U.  S.  Shipbuilding 
Co.,  123  Fed.  913,  914. 

7  Conklin  v.  U.  S.  Shipbuilding 
Co.,  123  Fed.  913;  Haydock  v.  Fish- 
eries Co.,   156  Fed.  988. 

8  Greene  v.  Star  C.  &  P.  Co.,  99 
Fed.  656. 


§  304] 


ANCILLARY    RECEIVERS 


1503 


The  better  practice  is  to  move  in  a  new  suit  instituted  by  the 
plaintiff  to  the  bill  upon  which  the  original  receiver  was  ap- 
pointed, or  by  some  other  creditor®  or  stockholder,^"  claiming 
a  right  to  share  in  the  property  of  which  a  receiver  is  desired. 
When  the  defendant  in  the  suit  where  the  appointment  was 
originally  made,  appeared  and  interposed  no  objection,  it  cannot 
object  to  the  ancillary  appointment.^^  It  seems  that  an  ap- 
pearance and  a  waiver  of  an  objection  to  the  jurisdiction  be- 
cause of  non-residence  may  be  made  in  the  name  of  a  defendant 
corporation  by  the  receiver  appointed  in  the  State  of  its  incor- 
poration ^2  at  least  where  the  officers  and  directors  of  the  corpo- 
ration have  been  enjoined  from  acting.  The  court  in  which 
application  is  made  for  the  ancillary  appointment  may  deny  the 
same,  if  it  appears  that  there  was  no  jurisdiction  to  appoint  a 
receiver  originally. ^^  It  seems  that  the  application  should  not 
be  made  by  the  receiver  wlio  wishes  the  ancillary  appointment  ;  ^* 
nor  in  a  summary  application  where  no  bill  has  been  filed. ^* 
It  is  the  safer  practice  for  the  bill  to  .show  the  difference  of 
citizenship  or  Federal  question  that  will  be  essential  to  the 
jurisdiction  over  the  original  appointment ;  but  it  might  be  held 
that  a  Federal  question  sufficiently  appeared  when  the  bill  M-as 


9  In  re  Brant,  96  Fed.  257; 
r.roene  v.  Star  C.  &  P.  Co.,  99  Fed. 
656. 

lOBhiefields  S.  S.  Co.  v.  Steele, 
C.  C.  A.,  192  Fed.  23.  See  s.  C,  C. 
C.  A.,  184  Fed.  584,  106  C.  C.  A. 
564. 

11  Walker  v.  United  States  Light 
&  Heating  Co.,  220  Fed.  393;  Cen- 
tral Life  Securities  Co.  v.  Smith, 
C    C.  A.,  236  Fed.  170. 

12  That  was  done  in  all  the  courts 
in  the  ease  of  Buchanan  v.  Bay 
State  Gas  Co.,  mpra,  note  3.  Stone 
V.  Pontiac  R.  R.  Co.,  N.  Y.  Sup. 
Ct.,  Sp.  T.,  April  12,  1905,  see  in- 
fra,   §§307,   311. 

13  Prinios  Chemical  Co.  v.  Fulton 
Steel  Corporation,  254  Fed.  454,  per 
Ray,  J.  But  see  Primos  Chemical 
Co.  V.  Fulton  Steel  Corp.,  254  Fed. 
454,  per  Hand,  J. 


14i?e  Brant,  96  Fed.  257;  Greene 
V.  Star  C.  &  P.  Car  Co.,  99  Fed. 
G.^6;  Mabon  v.  Ongley  El.  Co.,  156 
N.  Y.  196.  Where  receivers  ap- 
pointed in  one  district  obtained 
their  appointment  in  another  dis- 
trict upon  a  bill  filed  by  them  ex 
parte,  which  prayed  for  no  distinct 
equitable  relief;  it  was  held  that 
that  did  not  give  them  power  to 
sue  in  the  latter  district.  FairNnew 
Fluor,  Spar  &  Lead  Co.  v.  Ulrich, 
C.  C.  A.,  192  Fed.  894.  The  prac- 
tice in  the  Third  Circuit  has  been 
said  by  .ludge  McPherson  to  per- 
mit this,  and  he  required  the  ap- 
plication to  be  made  in  the  Matter 
of  Haight  &  Freese  Co.,  E.  D.  Pa., 
May,  1905,  in  which  the  author  was 
counsel. 

16  Ec  Brant,  96  Fed.  257. 


1504 


RECEIVERS 


[§  304 


brought  to  enforce  the  final  decree  of  a  Federal  court  of  equity 
in  another  district. ^^  The  original  receiver  need  not  be  made 
a  party  to  the  bill,^'  nor  is  there  any  necessity  for  joining  an- 
other corporation,  against  which  charges  are  made  in  the  bill, 
where  no  relief  is  asked  against  it ;  ^^  but,  where  there  is  a 
prayer  to  have  transferred  to  the  name  of  the  receiver  shares 
of  the  capital  stock  of  another  corporation,  such  corporation 
should  be  made  a  party.^* " 

The  ancillary  appointment  depends  upon  the  comity  of  the 
court  that  has  jurisdiction  of  the  assets  sought  to  be  impounded.'^® 
It  may  refuse  to  give  the  original  receiver  an  ancillary  appoint- 
ment.^^    And,  after  such  an  appointment,  it  may  remove  him.'^ 


leCouklin   V.   U.    S.    Shipbuilding 
Co.,  123  Fed.  913,  914. 

17  Phinizy    v.    Augusta    &    K.    E. 
Co.,  .56  Fed.  273. 

18  Phinizy    v.    Augusta    &    K.    E. 
Co.,  56  Fed.  273. 

19Conklin    v.    U.    S.    Shipbuilding 
Co.,   123   Fed.  913. 

20  Central  Tr.  Co.  v.  Texas  &  St. 
L.  Ey.  Co.,  22  Fed.  135;   Mercantile 
Tr.  Co.  V.  Kanawha  &  O.  Ey.  Co., 
39  Fed.  337;  Atkins  v.  Wabash,  St. 
L.  &  P.  Ey.  Co.,  29  Fed.  161 ;  Kirker 
V.   Owings,   C.   C.   A.,  98   Fed.  499; 
Farmers'  L.  &  Tr.  Co.  v.  No.  Pac. 
E.  Co.,  69  Fed.  871.     Conklin  v.  U. 
S.  Shipbuilding   Co.,   123   Fed.  913, 
915,   916,    per   Putnam,   J.:      "The 
rule    of   so-called    comity    has   little 
influence    with    me.      The   best   late 
writer   on   international   law — Dicey 
— says     very     truly :        '  The     term 
"comity,"   as   already   pointed  out, 
is   open  to   the  charge   of   implying 
that  the  judge,  when  he  applies  for- 
eign law  to  a  particular   ease,  does 
so  as  a  matter  of  caprice  or  favor. ' 
It  is  rather  a  scapegoat,  an  oppor- 
tunity  of   escape   for  the   court.     I 
know  of  few  propositions  that  now 
come    before    the    courts    which    are 
not    governed    by    law,    and    in    this 
case  I  must  be  governed  by  the  law 


as  practiced,  and  by  the  precedents, 
and  not  by  any  mere  matter  of 
comity.  The  law  as  recognized  in 
the  Circuit  Courts  of  the  United 
States  is  that,  when  the  Federal 
court  of  jurisdiction  at  the  domicile 
of  the  corporation  appoints  a  re- 
ceiver, or  makes  a  decree  winding 
up  a  corporation  and  disposing  of 
its  assets,  a  decree  of  foreclosure, 
or  any  other  decree  looking  to  a 
disposition  of  its  property,  there- 
upon, assuming  that  to  aid  another 
Federal  court  involves  a  Federal 
question  which  will  lawfully  sup- 
port the  exercise  of  jurisdiction  by 
the  Federal  judiciary,  the  Circuit 
Courts  in  other  circuits  will  exer- 
cise ancillary  jurisdiction,  and  as- 
sist in  carrying  out  the  purpose  of 
the  court  at  the  place  of  domicile." 
But  see  Farmers'  L.  &  Tr.  Co.  v. 
No.  Pac.  E.   Co.,  73  Fed.  26. 

21  Mercantile  Tr.  Co.  v.  Kanawha 
&  0.  Ey.  Co.,  39  Fed.  337;  Greene 
v.  Star"  C.  &  P.  Car  Co.,  99  Fed. 
656;  Phinizy  v.  Augusta  &  K.  B. 
Co.,  56  Fed.  273.  Primos  Chem. 
Go.  V.  Fulton  Steel  Corp.,  254  Fed. 
454.  But  see  Farmers'  Loan  & 
Tr.  Co.  V.  No.  Pac.  E.  Co.,  72  Fed. 
26. 

22  Atkins  v.  Wabash,  St.  L.  &  P. 


304  J 


ANCILLARY    RECEIVERS 


ir)Oo 


It  has  been  held  that  the  suit  cannot  be  maintained  merely 
for  the  purpose  of  obtaining  a  ratification  by  the  court  of  what 
has  l>een  done  in  a  court  of  anotlicr  jurisdiction-^^ 

Upon  an   anciUary  receiversbij),   tlic  court   that   had  original 
jurisdiction   is  considered  as  the  com-t  of  primary  jurisdiction 
and  of   principal   decree;  and    i)roceedings  in  the  other  courts 
are  usually  considered  as  ancillary  and  subordinate  thereto.     In 
the  case  of  a  railway  company  chartered  by  the  United  States, 
extending  through  several  districts,  the  court  of  primary  juris- 
diction should  ordinai-ily  be  that  where  the  principal  operating 
offices  are  situated  and  there  is  some  material  part  of  the  rail- 
road.2*    Hnt  where  the  coi-poration  had  recognized  the  j\irisdic- 
tion  of  a  court  in  another  district,  it  was  held  that  that  court 
should  be  considered  the  ccnirt  of  primary  jurisdiction.^^    Where 
the  first  receiver  of  a  State  corporation  had  been  appointed,  in 
a  district  where  its  business  was  carried  on  and  a  large  part  of 
its  property  situated,  and  the  corporation  had  acciuiesced  in  the 
jurisdiction  there;  it  was  held  that  a  receiver,  subsequently  ap- 
pointed  in   a   district   of  the  State  where  the  corporation   was 
chartered,   must   be   treated   as   auxiliary  and   ancillary   to   the 
former.26     ^^i,e   accounting  of  the  receiver   is   usually   first   in- 
stituted in  the  court  where  he  was  first  appointed."     He  may 
be  directed  to  file,  in  the  court  of  ancillary  jurisdiction,  a  cer- 
tified copy  of  such  accounts  and  order  approving  them.'^«     The 
court  of  ancillary  jurisdiction  has  ordered  a  sale  in  the  manner 


Ry.  Co.,  29  Fed.  161;  Greene  v. 
Star  C.  &  P.  Car  Co.,  99  Fed.  606; 
Farmers'  L.  &  Tr.  Co.  v.  No.  Pac. 
R.  Co.,  69  Fed.  871.  But  see  Farm- 
ers' L.  &  Tr.  Co.  V.  No.  Pac.  R.  Co., 
72  Fed.  26;  Chattanooga  T.  Ry.  Co. 
V.  Felton,  69  Fed.  27:^. 

23Fairview  Fluor  Spar  &  Lead 
Co.  V.  Ulri.-h,  C.  C.  A.,  192  Fed. 
894,  897. 

24  Fanners'  L.  &  Tr.  Co.  v.  No. 
Pac.  R.  Co.,  72  Fed.  26,  31,  as  to  the 
rule  in  districts  in  the  same  cir- 
cuit. See  Jud.  Code,  §  56,  quoted, 
ixfiui,  §  ;506.  For  a  case  of  a  dif- 
ference between  the  administration 
in  two  districts  of  the  same  Circuit 


where  the  Circuit  Judge  refused  to 
interfere,  see  Central  Tr.  Co.  v. 
Texas   &  St.    L.   Ry.    Co.,   22   Fed. 

25  Farmers'  L.  &  Tr.  Co.  v.  No. 
I'ac.  R.  Co.,  72  Fed.  26. 

26  Lewis  v.  Am.  Naval  Stores  Co., 
119  Fed.  391,  397;  Bowker  v. 
llaiglit  &  Freese  Co.,  157  Fed.  1006. 

27  Jennings  v.  Phila.  &  R.  R.  Co., 
23  Fed.  569.  As  to  the  effect  of 
an  order  or  decree  therein  in  an 
ancillary  jurisdiction,  see  Coe  v. 
I'atterson,  122  App.  Div.  76. 

28  Central  R.  &  Banking  Co.  v. 
Farmers'  L.  &  Tr.  Co.,  113  Fed. 
405,  412. 


1506  RECEIVERS  [§  304 

directed  by  that  of  primary  jurisdiction,  and  in  opposition  to 
its  own  views  of  the  proper  course.^^ 

Where  the  court  of  primary  jurisdiction  exacted  a  stipula- 
tion from  the  receiver  as  to  his  conduct  in  a  suit  in  the  ancillary 
jurisdiction,  the  court  in  the  latter  enforced  observance  of  such 
stipulation.30  The  courts  of  ancillary  jurisdiction  frequently 
remit  to  the  court  of  primary  jurisdiction,  for  relief  of  claim- 
ants to  a  preferential  interest  in  the  fund.^i  They  may  establish 
a  resident's  status  as  a  creditor ;  32  but  not  if  the  distribution 
of  the  estate  will  be  thereby  confused  or  embarrassed.^^  To 
the  latter  court  also  was  left  the  determination  of  the  propriety 
of  continuing  a  traffic  agreement  operating  in  two  or  more 
States,^*  of  making  extraordinary  contracts  ^^  of  voting  stock 
in  a  corporation  chartered  in  the  ancillary  jurisdiction,^^  and 
in  one  case  even  the  propriety  of  excepting  from  the  receiver- 
ship assets  within  the  ancillary  jurisdiction.^'^  It  has  been  held 
that  assets  in  the  hands  of  ancillary  receivers  cannot  be  subjected 
to  the  payments  of  damages  for  torts  committed  by  the  receivers 
in  the  primary  jurisdiction-^^     The  court  of  ancillary  jurisdic- 

29  Central  Tr.   Co.  v.  U.  S.  Flour  prise  Transp.  Co.,  C.  C.  A.,  166  Fed. 

Milling  Co.,  112  Fed.  371.  188.     But    see    Seminole    Securities 

30  Wheeling,  B.  &  St.   T.  Ey.  Co.  Co.  v.   Southern   Life  Ins.   Co.,   182 
V.  Cochran,  85  Fed.  500.  Fed.  85,  93;    Whelan  v.  Enterprise 

31  .Jennings  v.   Philadelphia  &  E.  Transp.  Co.,  138  Fed.  138. 

E.  Co.,  23  Fed.  569;   Clyde  v.  Eich-  33  Seminole      Securities      Co.      v. 

mond   &   D.    E.    Co.,    56    Fed.    539;  Southern  Life  Ins.  Co.,  182  Fed.  85, 

Bowker  v.  Haight  &  Freese  Co.,  140  93;   Pfahler  v.  McCrum-Howell  Co., 

Fed.     797;     Whelan    v.     Enterprise  197  Fed.  684;  Whelan  v.  Enterprise 

Transp.    Co.,    166   Fed.    138;    Equi-  Transp.  Co.,  C.  C.  A.,  166  Fed.  138; 

table     Trust     Co,     v.     Wabash     E.  Equitable   Trust   Co.   v.   Wabash   E. 

Co.,    C.    C.    A.,    244    Fed.    66.      In  Co.,  C.  C.  A.,  244  Fed.  66. 

Farmers '  L,  &  Tr.  Co.  v.  Northern  34  Ames  v.  Union  Pac.  Ey.  Co.,  60 

Pac.  E.  E.,  U.  S.  C.  C,  S.  D.  N.  Y.,  Fed.  966. 

N.   Y.  L.   J.   May   15,   1902,   it  was  35  Way  v.  J.  H.  Way  &  Sons  Co., 

held    that    the    claimant    of    a    lien  216  Fed.  719. 

upon  real  estate  must  apply,  either  36  Am.  &  British  Mfg.  Co.  v.  In- 
to  a  court   of  primary  jurisdiction,  .  ternat.  P.  Co.,  173  App.  Div.  319. 
.or  to  a  court  in   the   State   or   dU-  37  Mercantile     Tr.    Co.    v.    Balti- 
trict   where   the   real  estate  is   situ-  more  &  O.  Ey.  Co.,  79  Fed.  388. 
ated.  38  Union   Tr.   Co.  v.   Atchison,   T. 

32  Pfahler  v.  McCrum-Howell  Co.,  &  S.  F.  E.  Co.,  87  Fed.  530. 
197    Fed.    684;    Whelan    v.    Enter- 


§304] 


ANCILLARY    RECEIVERS 


ir)0< 


tiou  has  control  over  the  acts  of  ihc  ancillary  receiver  within 
its  territorial  limits.^* 

It  has  been  said  that  in  general  the  proceedings  in  the  an- 
cillary jnrisdiction  should  be  confined  to  the  conservation  of 
the  i)roperty  there  and  the  transmission  of  the  money  into  wiiich 
it  is  converted  to  the  court  of  original  jurisdiction.**' 

The  courts  of  ancillary  administration  have  the  power  to 
retain  tlic  assets  which  they  collect  and  to  distribute  them  in- 
dependently.*^ They  usually  apply  them  to  tlie  discharge  of 
local  liens,*^  the  expenses  of  the  ancillary  receivership  and  to 
the  payment  of  claims  arising  out  of  their  management  of  the 
property  before  transmitting  any  funds  to  the  court  of  primary 
jurisdiction.*^ 

Before  such  transmission  a  bond  may  be  required  from 
the  original  receiver  conditioned  for  the  payment  of  the  fees 
and  expenses  of  the  ancillary  receiver  and  his  counsel.**  In 
such  a  case  notice  should  be  given  to  the  first  of  all  applica- 
tions for  orders  fixing  the  fees  and  expenses  of  the  others.** 
Local  creditors,  without  liens  or  other  security,  have  no  absolute 
right  to  assets  in  the  hands  of  the  ancillary  receiver  prior  to 
that  of  creditors  in  the  other  districts;  *6  and  the  ancillary  court 
may  order  the  transmission  of  all  the  proceeds  of  the  assets  to 


39  Chattanooga  Terminal  Ey.  Co. 
V.  Felton,  69  Fed.  273. 

40  Way  v.  J.  H.  Way  &  Sons  Co., 
216  Fed.  719. 

41  Kirker  v.  Owings,  C.  C.  A.,  98 
Fed.  499;  Sands  v.  E.  S.  Greeley  & 
Co.,  C.  C.  A.,  88  Fed.  130;  Miles 
V.  New  So.  B.  &  L.  Ass'n,  99  Fed. 
4;  N.  Y.  Security  &  Tr.  Co.  v. 
Equitable    Mtg.    Co.,    71    Fed.    556. 

42  Fletcher  v.  Harney  P.  T.  M. 
Co.,  84  Fed.  555,  where  the  court 
of  primary  jurisdiction  expressed 
its  views  as  to  the  proper  action 
of  the  court  of  ancillary  jurisdic- 
tion upon  claims  for  taxes.  Clyde 
V.  Ricliniond  &  D.  R,  Co.,  65  Fed. 
3.*^6;  Central  Tr.  Co.  v.  East  Tenn., 
V.  &  G.  Ry.  Co.,  69  Fed.  658. 

43  Kirker  v.  Owings,  C.  C.  A.,  98 


Fed.  499.  Am.  &  British  Mfg.  Co. 
V.  Internat.  Power  Co.,  N.  Y.  Sup. 
Ct.,  Sp.  Tni.,  per  Hotclikiss,  J.,  N. 
Y.  L.  J.,  June  13,  1917. 

44  Am.  &  British  Mfg.  Co.  v.  In- 
ternat. I'ower  Co.,  N.  Y.  Sup.  Ct., 
Sp.  Tm.,  per  Hotchkiss,  J.,  N.  Y. 
L.  J.,  June  13,  1917. 

45  Ihid. 

46  Sands  v.  E.  S.  Greeley  &  Co., 
C.  C.  A.,  88  Fed.  130;  Smith  v. 
Taggart,  C.  C.  A.,  87  Fed.  94;  Par- 
sons V.  Charter  Oak  L.  I.  Co.,  31 
Fed.  305.  But  see  Taylor  v.  Life 
Ass'n  of  A.,  3  Fed.  465;  Farmers' 
L.  &  Tr.  Co.  V.  No.  Pac.  R.  Co.,  72 
Fed.  26,  31;  Kirker  v.  Owings,  C. 
C.  A.,  98  Fed.  499;  Johnson  v. 
Southern  B.  &  L.  Ass'n,  99  Fed. 
CA6.      For   a   case   wliere   they   were 


1508 


RECEIVERS 


[§305 


the  court  of  primaiy  jurisdiction  and  require  unsecured  local 
creditors  to  present  their  claims  for  adjudication  there.*'''  The 
proceedings  in  the  courts  of  ancillarj'  administration  are  not 
binding  upon  that  of  original  jurisdiction ;  ^^  except  to  the  extent 
to  which  they  affect  assets  within  the  territorial  jurisdiction  of 
the  former  courts.  The  court  of  primary  jurisdiction  remitted 
to  the  ancillary  court  the  determination  of  the  priority  of  re- 
ceiver's certificates  issued  by  the  latter.'*^  A  judgment  against 
an  ancillary  receiver  is  not  binding  upon  the  court  of  primary 
jurisdiction.^"  But  it  has  been  held  that  a  suit  for  services  to 
the  ancillary  receivers  in  aiding  in  the  sale  of  assets  may  be 
brought  against  the  same  persons  as  receivers  in  the  court  of 
primary  jurisdiction.^^  An  ancillary  receiver  is  ifot  justified 
in  sending  the  assets  to  the  court  of  original  jurisdiction  with- 
out the  permission  of  the  ancillary  court  and  he  may  be  held 
personally  responsible  for  such  conduct. ^^ 

§  305.  Terms  upon  the  appointment  of  receivers.  As  the  ap- 
pointment of  a  receiver  is  in  its  discretion,  the  court  may  im- 
pose terms  upon  the  party  applying  for  it  or  may  denj'  the 
application  upon  the  filing  of  a  bond  by  the  defendant,^  or  by 
impounding  the  ineome  of  the  property.^  Thus,  it  may  insist 
as  a  condition  precedent  to  appointing  a  receiver  to  manage 
a  colliery  that  the  moving  party  advance  the  funds  necessary 


not  allowed  to  interfere  with  the 
settlement  of  a  suit  liy  the  ancil- 
lary receivers,  see  Seminole  Securi- 
ties Co.  V.  Southern  Life  Ins.  Co., 
]82  Fed.  85. 

*7Ibid.;  Jennings  v.  Phila.  &  R. 
B.  Co.,  23  Fed.  569;  Sands  v.  E.  S. 
Greeley  &  Co.,  C.  C.  A.,  88  Fed. 
130;  Smith  v.  Taggart,  C.  C.  A.,  87 
Fed.  94;  Parsons  v.  Charter  Oak  L. 
I.  Co.,  31  Fed.  305.  See  So.  Bank- 
ing &  Loan  Ass'n  v.  Miller,  C.  C. 
A.,  118  Fed.  369. 

48  Reynolds  v.  Stockton,  140  U. 
S.    254,   272,   35   L.   ed.   464,   470. 

49  Doe  V.  N.  W.  Coal  &  Transp, 
Co..  78  Fed.  62. 

50  Reynolds  v.  Stockton,  140  U. 
S.   254,   35   L.   ed.   464. 


51  Colonial  Tr.  Co.  v.  Pac.  Pack- 
ing &  Nav.  Co.,  142  Fed.  298. 

52Ki,kes  V.  Owings,  C.  C.  A.,  98 
Fed.  499. 

§305.  1  Norton  v.  Hartford,  113 
Fed.  1023;  Cary  Bros.  v.  Dalhoflf 
Const.  Co.,  126  Fed.  584;  Folk  v. 
U.  S.,  C.  C.  A.,  233  Fed.  177; 
United  States  v.  Dominion  Oil  Co., 
245  Fed.  425;  Producers'  Oil  Co. 
V,  United  States,  C.  C.  A.,  245  Fed. 
651  ;  Lougee  v.  Pickrell,  250  Fed. 
741;  Monte  Rico  Min.  &  Mill.  Co. 
V.  Fleming,  C.  C.  A.,  258  Fed.  106, 
107. 

2  Producers'  Oil  Co.  v.  U.  S.,  C. 
C.  A.,  245  Fed.  651. 


305a  J 


I'RLFEREN'CliS    IN    FORECLOSURE   SUITS  1509 


6 


to  continue  the  l)usiness.3  So  a  party  or  person  interested  ni 
a  suit  was  in  England  rarely  appointed  receiver  unless  he  agreed 
to  act  without  compensation.*  liy  analogy  to  this  rule  of  prac- 
tice, the  Supreme  Court  of  the  United  States  first  sustanied 
the  principle  granting  preferences  to  certain  classes  of  unse- 
cured creditors  upon  the  foreclosure  of  railroad  mortgages.^ 

§305a.  Preferences  in  foreclosure  suits  and  in  the  admin- 
istration of  receiverships.     After  the  payment  of  the  expenses 
of  the  receiver's  administration,^  including  his  compensation  ^  that 
of  his  counsel,^  and  the  money  which  he  has  borrowed  by  re- 
ceiver's certificates,*  or  otherwise  under  authority  from  the  court, 
in  the  distribution  of  assets  by  a  receiver  the  maxim  equality 
is  equity  is  usually  followed.     A  judgment   obtained  after  a 
reeeiver'has  been  appointed  and  taken  possession,  gives  its  holder 
no  lien  upon  the  property,  of  an  individual,^  or  a  corporation. 
State  Statutes  upon  the  subject  are  waived.'^ 

In  accordance  with  the  principle,  that  he  who  seeks  equity 
must  do  equitv,  the  Federal  courts  when  appointing  a  receiver 
at  the  suit  of  a  mortgagee  of  a  railroad  or  other  corporation 
enc^acred  in  public  service  usually  direct  that  certain  claims  be 
paid-in  preference  to  those  of  the  plaintiff. «  ''The  doctrine  is 
analogous  to  that  of  the  admiralty  allowing  certain  supplies 
to  a  vessel  precedence  over  a  mortgage  upon  the  vessel,  and  rests 
upon  the  same  principle.     The  vessel  must  not  be  allowed  to 

SGibbs    V.    David,    L.    R.    20    Eq.  8  Waite,     C.    J.,     in     Fosdick     v. 

373  Sc-l.all,  99  V.  S.  235,  253,  25  L.  ed. 

4  Wilson  V.  Greenwood,  1  Swanst.  339,  342;  Farmers'  L.  &  T.  Co.  v. 
^7j  Green  Bay,  W.   &   St.   P.   Ry.   Co., 

5  Waite,  C.  J.,  in  Fosdick  v.  45  Fed.  664,  666;  667.  For  criti- 
Schall,  99  U.  S.  235,  251,  252,  25  t-isms  of  the  practice,  see^Coe  v. 
L  ed'  339,  342.  Sec  also  Turner  N.  J.  Midland  Ry.  Co.,  27  N.  J. 
V  Ind ,  B.  &  W.  Ry.  Co.,  8  Biss.  315.  Eq.  37;   Rant  v.  AttriU,  106  N.  Y. 

U05a      \  Infra,    §320,    321.  423,  60  Am.  Rep.  456;    Iloll.ster  v. 

2 /«/,«,  §322.  Stewart,   111  N.  Y.  644,  663.     The 

3  Infra,   §  322a.  doctrine     originated     in     Kentucky. 

^  Infra    §309  Douglas   v.    Cline,    12    Bush    (Ky.), 

6  Williams  V.  Roat,  73  Fed.' 59.  613    (1876).      For    a    case    where    a 
6  Mercantile   Tr.  Co.   v.   So.   State  dividend  was  paid  to  general  credi 

L    &  Tr    Co     86  Fed    711.  t«i'^  ^^''^'"  ^''^>"^'  ^^^  ^  dispute  as  to 

■7  Commonwealth     Roofing    Co.     v.  the  maturity  of  the  mortgage.     See 

North    Av.    Tr.    Co.,   C.    C.    A.,    135  Todd   v.    Lippincott,   C.   C.    A.,   -08 

Fed.    984;    Johnson    v.    Garner,    233  Fed.   205. 
Fed.  756. 

Fed.  Pra.'.  Vol.  11—25 


1510 


RECEIVERS 


[§  305a 


rot  at  the  wharf.  The  railway  must  not  be  permitted  to  rust, 
and  its  franchise  to  be  forfeited,  through  failure  to  operate. 
Such  things,  therefore,  that  are  done  to  avoid  such  result,  work- 
ing destruction  to  the  mortgage,  should  be  compensated  in 
priority  to  the  mortgage. ' '  ^ 

The  rule  has  been  extended  to  apply  to  the  administration  of 
the  as.sets  of  an  insolvent  railroad  which  were  not  mortgaged. ^° 
It  is  the  better  practice  to  i)rovide  for  such  preferences  as  a 
condition  in  the  order  for  the  appointment  of  the  receiver.^^ 
Even  where  no  such  order  has  been  made  when  the  receiver  was 
appointed,  if  it  appears  at  any  time  in  the  progress  of  the  cause 
that  bonded  interest  has  been  paid,  additioual  equipment  pro- 
vided, or  betterments  of  the  property  paid  for,  out  of  the  earn- 
ings during  a  short  ^^  time  before  the  default  in  interest,  the 
ex)urt  often  directs  that  such  debts  then  incurred  be  paid  out 
of  the  income  of  the  receivership  after  the  payment  of  the  re- 
ceiver's expenses  in  preference  to  the  claims  of  creditors  secured 
by  a  mortgage  or  other  lien ;  ^^  but  not  unless  there  was  a  diver- 
sion of  tlie  earnings  from  the  payment  of  operating  ex- 
penses.^* The  payment  by  the  receivers  of  rent  to  another 
raihvay  company  under  a  lease,  made  prior  to  the  receiversliip 


9  Caldwell,  J.,  in  Farmers '  L.  & 
T.  Co.  V.  Kansas  City,  W.  &  N.  W. 
R.  Co.,  53  Fed.  182,  190,  191. 

10  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry  Co.,  208  Fed.  168,  s.  c, 
C.  C.  A.,  216  Fed.  458. 

11  Central  T.  Co.  v.  St.  Louis,  A. 
&  T.  Ey,  Co.,  41  Fed.  551,  For 
forms  of  such  orders,  see  Dow  v. 
Memphis  &  L.  R.  Ry.  Co.,  20  Fed. 
260,  266,  267;  Central  T.  Co.  v.  St. 
Louis,  A.  &  T.  Ry.  Co.,  41  Fed.  551, 
553,  554. 

12  Crane  Co.  v.  Fidelity  Tr.  Co., 
C.  C.  A.,   238   Fed.   693. 

13  In  Fosdiek  v.  Schall,  99  IT.  S. 
235,  253,  254,  25  L.  ed.  339,  342, 
343;  Fosdiek  v.  Car  Co.,  99  U.  S. 
256,  25  L.  ed.  344;  Hale  v.  Frost, 
99  IT.  S.  389,  25  L.  ed.  419;  Milten- 
berger  v.  Logansport  Ry.  Co.,  106 
U.  S.  286,  308,  27  L.  ed.  117,  125; 


Union  T.  Co.  v.  Souther,  107  U.  S. 
591,  27  L.  ed.  488;  Union  T.  Co.  v. 
Walker,  107  IJ.  S.  596,  27  L.  ed. 
490;  Burnham  v.  Bowen,  111  U.  S. 
776,  28  L.  ed.  596;  Blair  v.  St. 
Louis,  H.  &  K.  Ry.  Co.,  22  Fed. 
471,  474,  with  a  valuable  note; 
Porter  v.  Pittsburg  Bessemer  S.  Co., 
120  U.  S.  649,  30  L.  ed.  830;  Vir- 
ginia &  A.  Coal  Co.  V.  Central  R. 
&  B.  Co.,  170  U.  S.  355,  42  L.  ed. 
1068;  Southern  Ry.  Co.  v.  Carnegie 
Steel  Co.,  176  U.  S.  257,  44  L.  ed. 
458;  Douglas  v.  Cline,  12  Bush 
(Ky.),  608;  Moore  v.  Donahoo,  C. 
C.  A.,  -217  Fed.  177;  Texas  Co,  v. 
International  &  G.  N.  Ry.  Co.,  C. 
C.   A.,  2.j0  Fed.  742. 

14Penn  v.  Calhoun,  121  U.  S. 
251,  30  L.  ed.  915;  St.  Louis,  A. 
&  T.  H.  R.  Co.  v.  Cleveland,  C.  C. 
&    I.    Ry.    Co.,    125    U.    S.    658,    31 


§  305a] 


PREFERENCES  IX  FORECLOSURE  SUITS 


1511 


and  a(l()|)t('(l  by  tliciii,^^  and,  llic  jiayiiiciit  hy  the  iiKirtjrajror  of 
interest  to  bondlioldei-s  ^^  do  not,  alone,  eonstitute  such  a  diver- 
sion of  income  as  will  entitle  to  a  ]n-eferenee  a  ereditf)r,  whose 
olaini  was  subseqnent  to  the  lease  and  niort<;ajre.  It  has  Ik'cii 
held  that  in  no  ease  is  a  crcnlitor  entitled  to  a  pi-eferenee  beeanse 
of  a  diversion  nidess  there  would  have  been  net  earninjrs  ap- 
plicable to  the  claiin  had  tliei-e  been  no  such  divei'sion.^'' 

Although  usually  they  are  paid  out  of  liie  net  income  of 
the  receivers;  in  special  cases,^^  especially  Avhere  this  iiicome 
has  been  used  to  pay  for  betterments^^  or  mortgage  interest 
by  a  receiver  appointed  in  the  I'oreelosnre  snit,^®  or  even  by 
a  receiver  appointed  in  a  jn-ior  suit  to  foreclose  a  junior 
lien  2^  oi-  to  preserve  the  properly  for  other  creditors  or  stock- 
holders,^2  or  by  a  reorganization  committee  representing  bond- 
holders and  stockholders, 2^  such  claims  have  been  paid  out 
of  the  proceeds  of  the  foreclosure  sale  before  any  payment 
on  account  of  mortgage  bonds;  and  in  some  cases  it  has  been 
made  a  condition  of  the  sale  that  the  purchaser  pay  these  claims 
in  addition  to  the  nominal  amount  of  his  bid.^* 


L.  ed.  832;  Wood  v.  Guaranteo  T.  & 
S.  D.  Co.,  128  U.  S.  416,  ;52  L.  cd. 
472;  Kiieeland  v.  Am.  L.  &  T.  Co., 
136  U.  S.  89,  34  L.  ed.  379;  Lacka- 
wanna T.  &  C.  Co.  V.  Farmers'  L. 
&  T.  Co.,  176  U.  S.  298,  44  L.  ed. 
475;  U.  S.  Trust  Co.  v.  N.  Y.  W. 
S.  &  B.  R.  Co.,  2."5  Fed.  800;  Fi- 
nance Co.  of  Pennsylvania  v. 
Charleston,  C.  &  C.  R.  Co.,  52  Fed. 
524  ;  Rnhlender  v.  Chesapeake,  O.  & 
S.  W.  R.  Co.,  C.  C.  A.,  91  Fed.  5; 
International  T.  Co.  v.  T.  R.  Town- 
send  B.  &  C.  Co.,  C.  C.  A.,  95  Fed. 
850;  Gregg  v.  Metropolitan  Tr.  Co., 
C.  C.  A.,  124  Fed.  721;  aff'd  197 
U.  S.  183,  49  L.  ed.  717. 

15  Fordyee  v.  Oinaha,  Kansas  Citj' 
&  E.   R.   R.,   145   Fed.  544. 

16  Crane   Co.   v.   Fidelity    Tr.  Co., 
C.  C.  A.,  238  Fed.  693. 

17  Fordyee  v.  Omaha,  K.   C.  &  E. 
R.   R.,   145  Fed.   544. 


18  ^tilteidierger  v.  Logansport,  C. 
C.  L.  W.  R.  Co.,  106  U.  S.  286,  311, 
313.  27  L.  ed.  117,  126,  127;  Vir- 
ginia &  A.  Coal  Co.  V.  Central  R.  & 
F..  Co.,  170  U.  S.  355,  365-367,  42 
L.  ed.  1068,  1071,  1072;  Blair  v. 
St.  Louis,  H.  &  K.  R.  Co.,  22  Fed. 
471,  475;  Kiiceland  v.  Bass  F.  &  M. 
Works,  140  U.  S.  592,  35  L.  ed.  543. 

19  I  hid. 

20  II, id. 

21  \irginia  &  A.  Coal  Co.  v.  Cen- 
tral R.  &  B.  Co.,  170  U.  S.  355,  370, 
12   L.  ed.   1068,   1073. 

22  Iliid.  See  cases  in  note  47, 
infra. 

23  Queen  Anne's  Ferry  &  Etjuip- 
nient  Co.  v.  Queen  Anne's  R.  Co., 
148  Fed.  41. 

24  Southern  Ry.  Co.  v.  Carnegie 
Steel  Co.,  176  U.  S.  257,  44  L.  ed. 
548. 


1512 


RECEIVERS 


[§  305a 


The  doctrine  has  been  extended  so  as  to  provide  for  prefer- 
ences to  those  who  have  furnished  supplies  and  performed  labor, 
and  to  railroad  companies  with  connecting  lines,  who  have  claims 
for  the  settlement  of  ticket,  freight  and  supply  accounts,^^  and 
to  loans  incurred  within  a  short  time  before  the  receivership, 
irrespective  of  whether  there  has  been  a  diversion  of  income  for 
the  benetit  of  the  mortgage  bondholders;  ^^  but  not  to  claims  for 


26  Virginia  &  A.  Coal  Co.  v.  Cen- 
tral E.  Co.,  170  U.  S.  355,  365,  42 
L.   ed.   1068,   1071;    Miltenberger  v. 
Logansport,  C.  &  S.  W.  E.  Co.,  106 
U.  S.  286,  311,  312,  27  L.  ed.  117, 
126,   127;    Central    Tr.    Co.   v.    Chi- 
cago,   A.   &   N.   Ey.    Co.,    232    Fed. 
936;    Equitable    Trust    Co.    v.    Wa- 
bash E.  Co.,  C.  C.  A.,  255  Fed.  66. 
86  Chicago  &  A.   E.   Co.  v.  U.  S. 
&    Mex.     Tr.     Co.,    225    Fed.    940. 
Claims  for  preferences  for  car  rent 
are     usually     disallowed.       Thomas 
V.   Western  Car   Co.,   149  U.   S.  95, 
37    L.    ed.    663;    Grand    Trunk   Ey. 
Co.  V.   Central  Vt.   E.   Co.,  90   Fed. 
163;    Pullman's  Palace   Car   Co.   v. 
Am.    L.    &    Tr.    Co.,    84    Fed.    18; 
Eodger  Ballast   Car   Co.   v.   Omaha, 
K.   C.   &   E.   E.   Co.,   154   Fed.   629. 
Where   a   balance    is   due   upon   the 
purchase    price    of   cars    or    locomo- 
tives delivered  to  the  railroad  com- 
jiany  under  a  contract  of  condition- 
al sale,  and  the  seller  reclaims  thom 
or  the  receiver  rejects  them,  a  claim 
for    the    value    of   their   use   or   for 
the   injury    done    to   them    while   in 
the    possession    of    the    railroad    is 
not   entitled  to   a  preference.     Fos- 
dick   v.   Sehall,  99   IT.   S.   235,   255, 
25   L.  ed.   339,   343;    Huidekoper  v. 
Loc.    Works,   99    U.   S.    258,    25    L. 
ed.    344;     Kneeland    v.    Am.    L.    & 
Tr.  Co.,  136  U.  S.  89,  97,  34  L.  ed. 
379,  383.     If,  however,  the  receiver 
retains  them  with  the  assent  of  the 
seller,  the   balance  of   the   purchase 


money,    or    at   least    the    reasonable 
value   of   their   use  by   the   receiver, 
may   be   a   preferred   claim   to   that 
of  a  prior  mortgagee  at  whose  suit 
the  receiver  was  appointed.     Knee- 
land  v.  Am.  L.  &  Tr.  Co.,  136  U.  S. 
89,  103,  34  L.  ed.  3?9,  385;  Fosdick 
V.  Car  Co.,  99  U.  S.  256,  25  L.  ed. 
344;    Frank  v.  Denver  &  E.  G.  Ey. 
Co.,  23  Fed.  123.     But  not  the  val- 
ue of  their  use  by  a  former  receiver 
appointed    at    the    suit    of    a   judg- 
ment   creditor    to    which    the   mort- 
gagee   was    a    party.      Kneeland    v. 
Am.   L.    &   Tr.    Co.,    136   U.    S.   89, 
97,    34    L.    ed.    379,    383.      But    see 
Kneeland  v.   Bass  F.  &  M.  Works, 
140  IT.   S.  592,  35  L.  ed.  543;   Mil- 
tenberger   V.    Logansport,    C.    &    S. 
W.    E.   Co.,    106   U.    S.    286,    27   L. 
ed.    117.      And   where   the   value   of 
the     purchase    price    is    allowed    a 
preference,    it    is     inferior    to     the 
claims  of  laborers  for  services  ren- 
dered   immediately    before    the    ap- 
pointment  of  the   receiver  and   sub- 
sequently   to    the    delivery    of    the 
rolling      stock      to      the      company. 
Frank   v.  Denver  &  E.   G.  Ey.   Co., 
23    Fed.    123.      In   one   case   a   con- 
solidated   mortgage    covered    leases 
of    branch   lines    and   nearly   all   of 
the  capital  stock  of  the  lessor  com- 
panies, with  a  covenant  by  the  trus- 
tee that  in  case  of  default  it  would 
take    possession    of    the    mortgaged 
property    and    then    "operate    such 
railroads   and  conduct  the  business. 


§  305a]  PREFEREXCIiS   IX    FORECLOSURE   SUITS  1513 

balance    due    for   repairs   of   cars,   losses,    damages   and   over 


«    *    * 


and      receive      all      tolls, 
rents,  income  and  profits  from  said 
lailroad  and  other  property,     *     *     * 
and      from      such      rents      to      pay 
all  expenses  of  taking  possession  of 
said    railroads    and    other    property 
and    operating    said    railroads    and 
conducting    said    business,     *     *     » 
and  all  taxes   due  upon  any  of  the 
mortgaged  property,  and  all  amounts 
due  for  interest  or.  jjrincipal  of  any 
of    the    bonds    or    other    obligations 
of  the  railway  company  secured  by 
mortgages   or   pledges  prior  in  lieu 
to    this    mortgage;     and    after    de- 
ducting    such     expenses     and     pay- 
ments   and    retaining    a    reasonable 
compensation     for    the    services    of 
the   trustee   in   connection   with   the 
making    of    said    entry    and    taking 
possession     of     said     railroads    and 
other    property,    and    operating    the 
same,  and  conducting  the  said  busi- 
ness, to  apply  the  net  income  to  the 
payment   of  any  interest  previously 
due   or    becoming    due    during   such 
possession     on     bonds     secured     by 
this    mortgage."    The    trustee    fur- 
ther   covenanted    ' ' to    cause    all    of 
the    railroads    and     other    property 
thus   secured   by   this   mortgage,   in- 
cluding  all   shares   of   capital   stock 
and     bonds     held     in     trust     under 
the    provisions    hereof,    to    be    sold 
as  one  property  at  public  auction," 
&c.     The  mortgagor  lessee  had  cov- 
enanted   to    pay    interest    upon    the 
bonds  of  the  lessors  of  the   branch 
lines  as   rent.     The  earnings   of  the 
branch  line  were  insufl&eient  to  pay 
the  rent.     It  was  held  that  the  first 
covenant   constituted   a   contract   by 
the    trustee    in    case    it    took    pos.ses 
siou   of   the   railroads   of   the   mort- 
gagor,  either  directly   or   through   a 


receiver,  to  pay  the  interest  on  the 
bonds  of  the  branch  roads,  as  ob- 
ligations of  the  mortgagor,  before 
the  net  income  was  applied  to  the 
payment  of  interest  on  the  bonds 
secured  by  the  consolidated  mort- 
gage; and  that  the  holders  of  these 
bonds  had  an  equity  upon  the  net 
earnings  of  the  entire  system  su- 
perior to  that  of  the  holders  of 
lionds  and  coupons  under  the  con- 
solidated mortgage.  Mercantile  Tr. 
Co.  V.  St.  Louis  &  S.  F.  Ry.  Co.,  71 
Fed.  601,  608,  609,  s.  c,  as  Mer- 
cantile Tr.  Co.  V.  Farmers'  L.  &  Tr. 
Co.,  C.  C.  A.,  81  Fed.  254.  But  see 
Central  Tr.  Co.  v.  Wabash,  St.  L.  & 
P.  Ry.  Co.,  2.3  Fed.  86:?.  Couj.ons 
on  l)onds  of  a  lessor,  due  for  rent 
when  a  receiver  of  the  lessee  was 
appointed,  were  deiiied  a  preference 
in  Central  Tr.  Co.  v.  Charlotte,  C. 
&  A.  R.  Co.,  65  Fed.  264.  See  St. 
Louis,  A.  &  T.  H.  R.  Co.  v.  Cleve- 
land, C.  &  C.  I.  Ry.  Co.,  125  U.  S. 
658,  .{1  L.  ed.  832.  Rent  of  a  termi- 
nal i)roperty  was  allowed  a  prefer- 
ence in  Manhattan  Tr.  Co.  v.  Sioux 
City  &  N.  R.  Co.,  102  Fed.  710. 
Creditors  of  a  lessor  railroad  were 
given  an  equitable  lien  upon  the 
amount  of  its  earnings  collected  by 
the  lessee.  Terre  Haute  &  L.  R.  Co. 
V.  Cox,  C.  C.  A.,  102  Fed.  825. 

Upon  the  foreclosure  of  a  con- 
solidated mortgage,  the  court  or- 
dered the  receivers  to  pay  interest 
upon  bonds  secured  by  mortgage 
upon  a  vital  portion  of  the  system 
although  there  was  some  doulit 
whether  the  mortgage  foredo.si-d 
was  not  a  superior  lien.  Park  v.  X. 
Y.,  L.  E.  &  W.  R.  Co.,  64  Fed.  l!)(i. 
See  also  Lloyd  v.  Ches.  O.  &  S.  W. 
R.   Co.,   65   Fed.   351.     It   was   held 


1514 


RECEIVERS 


[§  305a 


eharges,^'^  nor  to  amounts  subsequently  due  under  a  traffic  con- 
tract repudiated  by  the  receiver,28  nor  to  the  claim  of  another 
railway  company  for  a  proportionate  share  of  the  cost  of  main- 
taining flagmen  at  a  crossing,^^  nor  to  a  claim  for  compensation 
for  the  use  of  a  bridge.^"  Nor  to  the  claims  of  transportation 
companies  connecting  with  an  insolvent  steamship  line,'^  al- 
though freight  collected  by  the  receiver  for  them  after  his  ap- 
pointment must  be  repaid  by  him. 

The  reason  of  this  preference  to  other  railway  companies  was 
the  danger  that  these  creditors  might  refuse  to  transact  busi- 
ness with  the  debtor  and  thus  damage  the  public  as  well  as  the 
property.^^     Since  the   Interstate  Commerce  Law  now  forbids 


otherwise,  however,  in  the  case  of 
mortgages  upon  parts  of  the  fon- 
solidated  road  which  could  be  sepa- 
rated from  the  rest  without  a  seri- 
ous depreciation.  Cleveland,  C.  & 
S.  E.  Co.  V.  Knickerbocker  Tr.  Co., 
64  Fed.  623.  Where  the  receivers 
appointed  under  a  consolidated  mort- 
gage had  paid  interest  on  prior  di- 
visional mortgages,  taxes,  operat- 
ing expenses,  debts  for  equipment, 
and  for  that  purpose  had  incurred 
a  preferential  indebtedness,  it  was 
held:  that  the  consolidated  mort- 
gagee could  not  in  the  subsequent 
foreclosure  in  the  same  suit  of  mort- 
gagees on  different  parts  of  the  lien 
have  that  preferential  debt  appor- 
tioned between  its  own  and  the  divi- 
sional mortgages,  or  require  an  ac- 
count of  the  receipts  and  disburse- 
ments of  each  division  before  the 
extension  of  the  receivership  to  the 
division  of  mortgages  so  as  to  dis- 
place in  its  favor  the  liens  of  some 
of  those  mortgages;  but  that  these 
debts  were  primarily  a  charge  upon 
the  interest  of  the  consolidated 
mortgagee.  N.  Y.  S.  &  Tr.  Co.  v. 
L.,  E.  &  St.  L.  Con.  E.  Co.,  102 
Fed.  382.  See  Am.  Brake  S.  &  F. 
Co.  V.  Pere  Marquette  E.  Co.,  C.  C. 
A.,  205  Fed.  14. 


27  Baker  v.  Central  Trust  Co.  of 
New  York,  Carpenter,  C.  C.  A.,  235 
Fed.  17. 

28  Pennsylvania  Steel  Co.  v.  N. 
Y.  City  Ey.  Co.,  208  Fed.  168. 

29  City  Trust  Co.  v.  Sedalia  Light 
&  Traction  Co.,  195  Fed.  845.  Con- 
tra, Missouri  K.  &  T.  Ey.  Co.  v. 
City  Trust  Co.,  C.  C.  A.,  209  Fed. 
45. 

30  Louisville  Bridge  Co.  v.  Chi- 
cago, I.  &  L.  Ey.  Co.,  C.  C.  A.,  253 
Fed.   631. 

31  Whelan  v.  Enterprise  Transp. 
Co.,  175  Fed.  212. 

32  Miltenberger,  J.  Logansport, 
C.  &  S.  W.  E.  Co.,  106  U.  S.  286, 
311,  312,  27  L.  ed.  117,  126,  127. 
"It  is  easy  to  see  that  the  payment 
of  unpaid  debts  for  operating  ex- 
penses, accrued  within  ninety  days, 
due  liy  a  railroad  company  suddenly 
deprived  of  the  control  of  its  prop- 
erty, due  to  operatives  in  its  employ 
whose  cessation  from  work  simulta- 
neously is  to  be  deprecated,  in  the 
interests  both  of  the  property  and 
of  the  public,  and  the  payment  of 
limited  amounts  due  to  other  and 
connecting  lines  of  road  for  mate- 
rials and  repair,  and  for  unpaid 
ticket  and  freight  balances,  the  out- 
come of  indispensable  business  rela- 


§  305a] 


PREFERENCES  IN  FORECLOSURE  SUITS 


1515 


such  a  refusal  there  seems  to  he  no  longer  any  justifieatiou 
for  the  preference  except  a  blind  adherence  to  precedent.  Ces- 
sante  ipse  rati&ne  cessat  ipsa  lex.^^  Claims  for  excessive  charges 
paid  by  shippers,  when  presented  by  them  or  by  a  ^{uta  com- 
mission or  by  the  surety  on  a  supersedeas  bond,  may  be  allowed 
a  preference  for  such  payments  unlawfully  increased  the  prop- 
erty which  will  be  distributed  among  the  mortgagees  or  other 
creditors.^* 

Taxes  real  and  personal  ^5  including,  perhaps,  franchise  taxes  ^6 
are  usually  allowed  a  preference  in  accordance  with  the  State 
statutes.  Their  payment  is  not  a  divei-sion  of  the  earnings  to  the 
detriment  of  the  claimants  for  labor  and  supplies."  The  pref- 
erence includes  the  fees  due  the  officer  for  collection  and  inter- 
est until  the  time  of  the  entry  of  the  order  for  payment.'" 
Claims  for  money  advanced  to  pay  taxes  are  also  allowed  a  pref- 
erence.^® 

It  has  been  held  that  a  city  is  not  entitled  to  a  preference 


tions,  where  a  stoppage  of  tlie  con- 
tinuance of  such  business  relations 
would  be  a  probable  result,  in  case 
of  nonpayment,  the  general  conse- 
quence involving  largely,  also,  the 
interests  and  accommodations  of 
travel  and  traffic,  may  well  place 
such  payments  in  the  category  of 
payments  to  preserve  the  mortgaged 
property  in  a  larg6  sense,  by  main- 
taining the  good  will  and  integrity 
of  the  enterprise,  and  entitle  them  to 
be  made  a  first  lien." 

33  Carbon  Fuel  Co.  v.  Chicago  C. 
&  L.  R.  Co.,  C.  C.  A.,  202  Fed.  172, 
174.  See  Chicago  &  A.  R.  Co.  v. 
U.  S.  &  Mex.  Tr.  Co.,  225  Fed.  940. 

34  Love  V.  North  Am.  Co.,  C.  C. 
A.,  229  Fed.  lOH.  U.  S.  &  Mex.  T. 
Co.  V.  Kansas  City,  M.  &  O.  Ry. 
Co.,  240  Fed.  504. 

36  Atlantic  Tr.  Co.  v.  Dana,  C.  C. 
A.,  128  Fed.  209;  Midland  Guaranty 
&  Trust  Co.  V.  Douglas  County,  C.  C. 
A.,  217  Fed.  358;  Texas  Co.  v.  In- 
ternational &  G.  N.  Ry.  Co.,  C.  C.  A.. 
5th   Ct.,  237   Fed.   931;    Bear  River 


Paper  &  Bag  Co.  v.  City  of  Petoskey, 
C.  C.  A.,  241  Fed.  53;  Union  Trust 
Co.  V.  Great  Eastern  Lumber  Co.,  C. 
C.  .\.,  248  Fed.  46. 

36  Tlie  annual  franchise  tax,  which 
accrued  subsequent  to  tlie  receiver- 
ship, was  held  to  be  a  preferred 
lien  so  long  as  the  corporation  re- 
mained undissolved.  Conklin  v.  U. 
S.  Shipbuilding  Co.,  148  Fed.  129. 
Contra,  Franklin  Tr.  Co.  v.  State  of 
New  Jersey,  C.  C.  A.,  181  Fed.  769, 
Putnam,  .1.,  dissenting,  where  it  was 
imposed  by  a  foreign  State,  in  which 
it  was  domiciled  but  did  not  trans- 
net  business. 

37  Texas  Co.  v.  International  & 
Tex.    Ry.    Co.,   C.    C.    A.,    237    Fed. 

9;:i. 

38  Boar  River  Paper  &  Bag  Co.  v. 
City  of  Petoskey,  C.  C.  A.,  241  Fed. 

53. 

39  Farmers'  L.  &  Tr.  Co.  v.  Stutt- 
gart &  A.  R.  Co.,  92  Fed.  246;  U.  S. 
Tr.  Co.  v.  Mercantile  Tr.  Co.,  C.  C. 
A.,  88  Fed.  140;  Atlantic  Tr.  Co.  v. 
Dana,  C.  C  A.,  128  Fed.  209. 


1516 


RECEIVERS 


[§305a 


in  the  payment  of  a  claim  for  the  amonnt  due  for  annual  com- 
pensation for  a  street  railway  franchise.*'' 

Betterments,  as  distinguished  from  repairs,  are  less  often  al- 
lowed a  preference  *^  even  if  made  by  a  receiver,  when  the  mort- 


40Penii.  Steel  Co.  v.  N.  Y.  City 
Ry.  Co.,  C.  C.  A.,  198  Fed.  768,  771; 
s.   c,   C.   C.   A.,  216   Fed.   458,  473. 

41  Lackawanna    I.    &    C.     Co.    v. 
Farmers'   L.   &    T.    Co.,    176   U.    S. 
298,  44  L.  ed.  475;  Gregg  v.  Metro- 
politan Tr.  Co.,  197  U.  S.  183,  49  L. 
ed.   717;    s.  c,  C.   C.  A.,  124  Fed. 
721;   Am.  L.  &  Tr.  Co.  v.  E.  &  W. 
R.   Co.,   46   Fed.   101;    Farmers'   L. 
&  Tr.  Co.  V.  Stuttgart  &  A.  E.  Co., 
92    Fed.    246;    Illinois    Tr.    &    Sav. 
Bank  v.  Doud,  C.  C.  A.,   105  Fed. 
123,   but   see   dissenting   opinion   of 
Caldwell,   J.;    Niles   Tool   Works   v. 
Louisville,  N.  A.  &  C.  Ry.  Co.,  C. 
C.   A.,    112   Fed.   561,   563;    Central 
Trust  Co.  V.  Colorado  Ry.,  Light  & 
Power   Co.,   200    Fed.    85;    Addison 
V.  Lewis,  75  Va.  701,  713.     Thus  a 
claim    for    the    construction    of    a 
bridge    was     denied     a     preference. 
Int.   Tr.  Co.   v.   T.   B.   Townsend  B. 
&   Cr.   Co.,   C.    C.   A.,   95   Fed.   850. 
Contra,     Cleveland,     C.     &     S.     Ry. 
Co.      V.      Knickerbocker      Tr.      Co., 
86   Fed.   73;    Blair  v.   St.   Louis,  H. 
&  K.  Ry.  Co.,  23  Fed.  704.     So  were 
claims   for   railroad   ties;   Gregg   v. 
Metropolitan  Tr.  Co.,  197  U.  S.  183, 
49  L.  ed.   717;   s.  c,  C.  C.  A.,  124 
Fed.    721;    for    ballast    cars.      The 
enlargement  and  improvement  of  a 
power    plant.     John    A.    Roebling's 
Sons  Co.  v.   Idaho  Ry.,  Light  &  P. 
Co.,  C.  C.  A.,  243  Fed.  527.    Service 
extensions,      Ibid.;        ballast      cars. 
Rodger  Ballast   Car   Co.   v.   Omaha, 
K.  C.  &  E.  R.  Co.,  C.  C.  A.,  154  Fed. 
629;     Fordyce    v.     Omaha,    Kansas 
City  &  E.  R.  R.,  145  Fed.  544;  for 
air  bralces,  which  were  placed  upon 


the  cars  in  obedience  to  an  act  of 
Congress;  State  Tr.  Co.  v.  Kansas 
City,  P.  &  G.  R.  Co.,  129  Fed.  455; 
for  the  price  of  machinery  used 
in  the  construction  of  car  shops 
upon  a  railroad  leased  to  the  mort- 
gagor and  not  covered  by  the  mort- 
gage. Niles  Tool  Works  v.  Louis- 
ville, N.  A.  &  C.  Ry.  Co.,  C.  C.  A., 
112  Fed.  561,  564.  See  Fordyce 
V.  Kansas  City  &  E.  R.  R.,  145  Fed. 
544.  For  the  price  of  gas  meters 
which  were  held  to  be  not  a  part 
of  the  operating  expenses  of  a  gas 
company.  Reyburn  v.  Consumers ' 
Gas  F.   &   L.   Co.,   29   Fed.   R.   561, 

Preferences  were  allowed  for 
debts  incurred  by  tlie  purcliase  of 
an  electric  generator,  Man.  Tr.  Co. 
v.  Sioux  City  C.  Co.,  76  Fed.  658; 
and  for  a  new  gear  wheel  and  pin- 
ion upon  a  cable  railway.  Central 
Tr.  Co.  v.  Clark,  C.  C.  A.,  81  Fed. 
269.  In  Central  Tr.  Co.  v.  Texas 
&  St.  L.  Ry.  Co.,  23  Fed.  704,  705, 
per  Treat,  J.,  Blair  v,  St.  L.,  H.  & 
K.  R.  Co.,  22  Fed.  471,  per  Brewer, 
J.;   s.  c. 

In  re  Merriwether,  22  Fed.  769, 
770,  per  Treat,  J.;  s.  c,  23  Fed. 
704,  per  Brewer,  J.,  bettenn"nts 
were  allowed  a  preference.  Tliere 
was,  however,  a  Missouri  statute 
(Mo.  R.  S.,  §  3200)  which  may  have 
affected  these  decisions.  For  the 
construction  of  the  railroad  lien  law 
of  Illinois,  see  Sanders  v.  Southern 
Traction  Co.  of  Illinois,  253  Fed. 
511.  Where  a  receiver  had  com- 
pleted, under  an  order  of  tlie  court, 
a  building  partly  constructed  for 
tlie    mortgagor    upon    property    not 


S  30oa 


i'im:ferences  in  foreclosure  suits 


1517 


covered    by    tlio    mortgage,    it    was 
held  that  the  entire  cost  of  the  con- 
struction should  be  paid  by  the  re- 
ceiver before  he  made  any  payment 
to  the  mortgagee.     Girard  I.  &  T. 
Ey.   Co.   V.   Cooper,   162   U.   S.   529, 
40  L.  ed.  1062.     So  in  Virginia  Pas- 
senger  &   Power   Co.   v.   Lane  Bros. 
Co.,  C.  C.  A.,  174  Fed.  5U,  improve- 
ment of  water  power.     Illinois  Tr.  & 
Sav.  Bank  v.  Doud,  52  L.R.A.  481, 
105  Fed.  123,  148,  149,  per  Sanborn, 
J.:     "When   a  careful  examination 
and  analysis  of  the  facts  and  opin- 
ions in  all  tlie  cases  in  the  Supreme 
Court  upon  the  subject  of  preferen- 
tial   claims    in    suits    to    foreclose 
mortgages   of   qmsi-inthlic   corpora- 
tions   is   made,    and    dicta    are    dis- 
tinguished   from    adjudications,    the 
decisions     of     that     court     will    be 
found  to  sustain  these  propositions: 
A   mortgagee   of   the   property,   ac- 
quired and  to  be  acquired,  and  of 
the    income    of    a    quasi- public    cor- 
poration,   such    as    a    railroad    com- 
pany,  obtains   a   lien   upon  the   net 
income    of    the    company    after    the 
current    expenses    of    operation    in- 
curred   in    the    ordinary    course    of 
business    are    paid,    and    impliedly 
agrees  that   the   gross   income   shall 
be   first   applied  to   the  payment   of 
these    current    expenses,    before    the 
net   income  to   which  he   is  entitled 
arises.     A  court  of  equity  engaged 
in     administering     mortgaged     rail- 
road  property   under   a  receivership 
in  a  foreclosure  suit  may  prefer  un- 
paid claims  for  current  expenses  of 
the  ordinary  operation   of  the  rail- 
road, incurred  within  a  limited  time 
before   the   receivership,   to   a   prior 
mortgage    lien,    in    the    distribution 
of   the    income    or    of    the    proceeds 


of     the     mortgaged     property.       If 
such      a      mortgagor      diverts      the 
current    income    from    the    payment 
of  current  expenses  to  the  payment 
of    interest    on    the    mortgage    debt, 
or  to  the  improvement  of  the  mort- 
gaged property,  so  that  current  cx- 
^jenses  remained  unpaid  when  a  re- 
ceiver is  appointed,  the  court   may, 
out   of  the   income  accruing  during 
the   receivership,   restore  to  the  un- 
paid   claims    for    current    expenses 
the    amount    so    diverted.      But    if 
there    has   been   no    diversiqji    there 
can     be     no     restoration,     and     the 
amount    of    the    restoration    cannot 
exceed    the    amount    of    the    diver- 
sion.     The    class    of    claims    which 
may    be    awarded    a    preference    in 
payment    over    the    prior    mortgage 
debt   in   equity   is  limited  to  claims 
for    current    expenses    incurred    in 
the    ordinary    course    of   the    opera- 
tion   of     the     mortgaged     property 
within    a    limited    time    before    the 
appointment  of  a  receiver.     It  does 
not      include      claims      for      money 
loaned,  or  for  material  or  labor  fur- 
nished to  make  necessary  beneficial 
and     permanent     additions     or     im- 
provements to  the  mortgaged  prop- 
erty.     The    broad    language    of   the 
dicta  in  Fosdick  v.  Schall,  that  'nec- 
essary     operating      and      managing 
expenses,     proper     equipment,     ami 
useful  improvements'  are  to  be  de- 
ducted from  the  current  income  be- 
fore   the   net    income   out   of   which 
the    mortgage    debt    is    to    be    paid 
arises,    has    been    disapproved    and 
modified,    and    the    class    of    claims 
entitled  to  equitable  preference  has 
been  limited  by  the  later  decisioos 
of   the   Supreme  Court."     But   sec 
dissenting    opinion    of    Caldwell,    J. 


1518 


RECEIVERS 


[§  305a 


gagee  was  not  a  party  to  the  suit.*'^    The  later  cases  hold  that 
in  a  case  of  a  betterment,  where  there  is  no  statutory  lien,*' 


Cf.  Farmers'   L.  &   Tr.   Co.  v.  Am. 
Waterworks  Co.,  107  Fed.  2.3. 

42  Atlantic    Tr.    Co.    v.    Dana,    C. 
C.    A.,    128    Fed.    209;    Fordyce    v, 
Omaha,  K.  C.  &  E.  E.  R.  145  Fed.^ 
544;    Merchants'    L.    &   Tr.    Co.    v. 
Chicago  Rys.  Co.,  158  Fed.  923. 

43  Gregg  v.  Metropolitan   Tr.  Co., 
197    U.    S.    18.3,    49    L.    ed.    717; 
Fordyce  v.   Omaha,   K.   G.   &  E.   R. 
R.,  145  Fed.  544;   Union  Trust  Co. 
V.     Southern    Sawmills    &    Lumber 
Co.,   C.   C.   A.,   166   Fed.   193;    Vir- 
ginia   Passenger    &    Power    Co.    v. 
Lane  Bros.  Co.,  C.   C.  A.,  174  Fed. 
513;  Spencer  v.  Taylor  Creek  Ditch 
Co.,   C.   C.   A.,   194   Fed.   635;    Cen- 
tral   Trust    Co.    V.    Colorado    Ry., 
Light   &   Power   Co.,   200   Fed.   85; 
Carbon   Fuel  Co.  v.    Chicago,  C.   & 
L.  R.  Co.,   C.   C.   A.,  202  Fed.   172, 
174;    John   H.   Roebling's  Sons   Co. 
V.  Idaho  Ry.  Light  &  P.  Co.,  C.  C. 
A.,  243   Fed.   527;    First  Trust   Co. 
V.  Illinois  Cent.  R.  Co.,  C.  C.  A.,  252 
Fed.    965;    Moore    v.    Donahoo,    C. 
C.  A.,  217  Fed.  177;   Continental  & 
C.    T.   &   S.   Bank   v.    North   Platte 
Val.    Irr.    Co.,    219   Fed.   438;    Chi- 
cago &  A.  R.  Co.  V.  U.  S.  &  Mex. 
Tr.     Co.,     225     Fed.     940;     Martin 
Metal   Mfg.    Co.   v.   U.    S.    &   Mex. 
Tr.    Co.,    C.    C.    A.,    225    Fed.    961; 
U.   S.  &  Mex.   Tr.  Co.  v.  Beaty,  C. 
C.    A.,    243    Fed.    344;    Nealand    v. 
Am.   Loan    Co.,    136   U.    S.    89,   97, 
10  Sup.  Ct.  950,  953,  34  L.  ed.  379. 
"The    appointment    of    a    receiver 
vests  in  the  court  no  absolute  con- 
trol over  the  property  and  no  gen- 
eral authority  to  displace  vested  con- 
tract liens.    Because  in  a  few  speci- 
fied   and    limited    cases    this    court 
has  declared  that  unsecured  claims 


were  entitled  to  priority  over  mort- 
gage debts  an  idea  seems  to  have 
obtained  that  a  court  appointing  a 
receiver  acquires  power  to  give  such 
preference   to  any   general   and  un- 
secured   claims.      It    has    been    as- 
sumed   that    a    court    appointing    a 
receiver  could  rightfully  burden  the 
mortgaged    property    for    the    pay- 
ment   of    any    imsecured    indebted- 
ness.    Indeed,   we  are  advised  that 
some  courts  have  made  the  appoint- 
ment of  a  receiver  conditional  upon 
the    payment    of    all    unsecured    in- 
debtedness    in     preference     to     the 
mortgage    liens    sought    to    be    en- 
forced.    Can  anything  be  conceived 
which  more  thoroughly  destroys  the 
sacredness   of  contract   obligations? 
One  holding  a  mortgage  debt  upon 
a  railroad  has  the  same  right  to  de- 
mand  and   expect   of   the   court   re- 
spect for  his  vested  and  contracted 
priority  as  the  holder  of  a  mortgage 
on    a    farm    or   lot.      So,   when   the 
court    appoints   a    receiver    of    rail- 
road   property,   it   has   no   right   to 
make    that    receivership    conditional 
on  the  payment  of  other  than  those 
few  unsecured  claims,  which,  by  the 
rulings  of  this  court  have  been  de- 
clared  to   have   an  equitable   prior- 
ity.    No  one  is  bound  to  sell  to  a 
railroad    company    or    to    work    for 
it,   and   whoever  has   dealings   with 
a  company  whose  property  is  mort- 
gaged   must    be    assumed    to    have 
dealt   with    it    on   the    faith    of   its 
personal    responsibility    and    not    in 
expectation     of     subsequently     dis- 
placing   the    priority    of    the    mort- 
gage liens.     It  is  the  exception  and 
not  the   rule  that  liens  can  be   dis- 
placed.    We  emphasize  this  fact  of 


§  305a] 


PREFERENCES  IN  FORECLOSURE  SUITS 


1519 


there  has  been  no  diversion  of  income,  tiiere  can  be  no  preference, 
out  of  the  proceeds  of  the  sale,  unless  immediate  payment  is  nec- 
essary in  order  to  keep  the  railroad  in  operation.  The  fact 
that  a  connecting  railroad  may  be  compelled  under  the  Inter- 
state Commerce  Law  to  transact  business  with  the  receiver,** 
or  that  the  mortgagee  has  delayed  the  institution  of  a  fore- 
closure suit,*^  does  not  ati'ect  this  rule. 

The  rule  has  been  applied  to  an  application  for  a  decree  of 
strict  foreclosure  instead  of  a  sale,  whereupon  the  decree  was 
granted  saving  the  rights  of  intervenors  who  held  claims  which 
in  the  case  of  a  reeeivershij)  would  have  been  entitled  to  a  pref- 
erence.*^ The  rule  includes  claims  incurred  by  contracts  made 
with  a  coi'poration  to  which  was  leased  the  railroad  foreclo.sed, 
for  the  benefit  of  the  latter,  and  cases  where  the  latter  has  per- 
mitted the  former  to  manage  and  operate  its  railroad  under 
color  of  a  lease  or  by  virtue  of  the  ownership  or  control  of  a  nm- 
jority  of  its  stock.*''  It  must  appear,  however,  in  all  cases,  that 
the  creditor  allowed  the  debt  to  be  incurred  in  the  belief  that  it 
would  be  paid  from  the  current  earnings  of  the  railroad  and 
that  he  did  not  rely  solely  upon  the  personal  credit  of  llie  coi'- 
poration with  whom  he  made  the  contract,*^  and  thai   tiie  debt 


the  sacredness  of  contract  liens,  for 
the  reason  that  tliere  seems  to  be 
growing  an  idea  that  the  chancel- 
lor, in  the  exercise  of  his  equitable 
powers  lias  unlimited  discretion  iji 
this  matter  of  the  displacement  of 
vested  liens. ' ' 

44  Carbon  Fuel  Co.  v.  Chicago, 
C.  &  L.  R.  Co.,  C.  C.  A.,  202  Fed. 
172. 

46  Ibid. 

46Burnham  v.  Bowen,  111  U.  S. 
776,  782,  78.3,  28  L.  ed.  596,  r)98, 
599.  Where  the  parties  to  a  fore- 
closure suit  waived  a  sale,  and  en- 
tered an  order  by  consent  leasing 
the  property  to  another  railroad 
and  appointing  a  receiver  of  tlie 
i-ent,  the  court  directed  that  all 
floating  unsecured  creditors  should 
be  paid  out  of  the  rent  before  its 
application     in     discharge     of     the 


claims  of  the  bondholders.  Farm- 
ers' L.  &  Tr.  Co.  V.  Mo.,  I.  &  N. 
Ry.  Co.,  21  Fed.  264. 

47  Virginia  &  A.  Coal  Co.  v.  Cen- 
tral R.  R.  &  B.  Co.,  170  U.  S.  355, 
42  L.  ed.  1068;  Clark  v.  Central  R. 
R.  &  B.  Co.,  66  Fed.  803.  But  see 
Felton  V.  Cincinnati,  C.  C.  A.,  95 
Fed.  336;  Southern  Ry.  Co.  v.  En- 
sign Mfg.  Co.,  C.  C.  A.,  117  Fed. 
417.  Such  claims  may  also  be  given 
a  preferred  lien  upon  the  whole 
])ro])erty  of  the  lessee  or  control- 
ling comj)any.  Central  of  Ga.  Ry. 
Co.  v.  Hitclicoek,  C.  C.  A.,  91  Fed. 
209;  Clyde  v.  Richmond  &  D.  R. 
Co.,  56  Fed.  539. 

48  Southern  Ry.  Co.  v.  Carnegie 
Steel  Co.,  176  U.  S.  257,  290,  44  L. 
ed.  458,  472;  Lackawanna  I.  &  C. 
Co.  V.  Farmers'  L.  &  Tr.  Co.,  176  U. 
S.    298,   44    L.   ed.   475;    Virginia  & 


1 520 


RECEIVERS 


U  30r)a 


was  one  fairly  to  be  regarded  as  part  of  the  operating  expenses 
of  the  railroad,  to  be  paid  from  current  receipts,*^  and,  it  has 
been  held,  that  it  was  incurred  before  the  diversion.^o 

It  is  not  necessary  to  prove  that  the  creditor  when  he  furnished 
the  supplies  knew  of  this  right  and  relied  thereupon." 

The  expectation  of  a  claimant  that  the  debt  due  him  will  be 
payed  out  of  the  current  income  is  not  in  itself  sufficient  to 
entitle  him  to  a  preference.^^ 

In  a  proper  case  the  disbursements  or  liabilities  of  a  prior 
receiver  appointed  at  the  suit  of  a  stockholder  or  junior  in- 
cumbrancer may  be  thus  given  a  preference  when  they  were 
essential  to  the  maintenance  of  the  mortgaged  property.^^  The 
mere  fact  that  money  loaned  to  the  mortgagor  was  expended  in 
paying  interest  upon  the  mortgage  bonds  and  operating  ex- 
penses so  as  to  enable  the  railway  company  to  maintain  itself 
as  a  going  concern  is  insufficient  to  entitle  the  lender  to  a  pref- 


erence 


54 


A.  Coal  Co.  V.  Central  R.  R.  &  B. 
Co.,  170  U.  S.  355,  42  L.  ed.  1068, 
and  cases  cited;  Southern  Ry.  Co. 
V.  Ensign  Mfg.  Co.,  C.  C.  A.,  117 
Fed.  417.  For  a  case  where  the 
evidence  was  held  to  be  insufficient 
to  sustain  the  defenses  by  sureties 
that  the  payee  of  a  note  had  agreed 
to  ajjply  thereupon  the  proceeds  of 
mortgage  given  by  the  maker  col- 
lateral see  Continental  Gin  Co.  v. 
Stoeker,  C.  C.  A.,  245  Fed.  343. 

49  Soutliern  Ry.  Co.  v.  Carnegie 
Steel  Co.,  176  U.  S.  257,  296,  44  L. 
ed.  458,  475;  Fordyce  v.  Kansas 
City  &  N.  Connecting  R.  Co.,  145 
Fed.  566. 

50  Fordyce  v.  Omaha  K.  C.  &  E. 
R.  R.,  145  Fed.  544. 

51  Pennsylvania  Steel  Co.  v.  N. 
Y.   City  Ry.   Co.,  208  Fed.   168. 

52  U.  S.  &  Mex.  Tr.  Co.  v.  Kan- 
sas City,  Mex.  &  Orient  Ry.  Co., 
C.  C.  A.,  225  Fed.  961;  John  A. 
Roebling's  Sons  Co.  v.  Idaho  Ry., 
I. if  lit  &  P.  Co.,  C.  C.  A.,  243  Fed. 


53Kneeland  v.  Bass  F.  &  M. 
Works,  140  U.  S.  592,  35  L.  ed. 
543 ;  Miltenbergcr  v.  Logansport,  C. 
&  S.  W.  R.  Co.,  106  U.  S.  286,  27 
L.  ed.  117 ;  Pennsylvania  Co.  for 
Insurance  v.  J.  T.  &  K.  W.  Ry.  Co., 
93  Fed.  60;  Reinhart  v.  Augusta 
M.  &  Inv.  Co.,  94  Fed.  901 ;  Central 
of  Ga.  Ry.  Co.  v.  Hitchcock,  91  Fed. 
209;  -^tna  Life  Ins.  Co.  v.  Leonard, 
C.  C.  A.,  186  Fed.  148;  Finance  Co. 
of  Pennsylvania  v.  Trenton  &  N.  B. 
Ry.  Co.,  189  Fed.  282.  Cf.  Central 
Appalachian  Co.  v.  Buchanan,  C. 
C.  A.,  90  Fed.  454.  But  see  Knee- 
land  v.  Am.  L.  &  Tr.  Co.,  136  U.  S. 
89,  34  L.  ed.  379;  Am.  L.  &  Tr.  Co. 
v.  South  Atl.  &  O.  R.  Co.,  81  Fed. 
62;  Ruhlender  v.  Ches.,  O.  &  S.  W. 
R.  Co.,  91  Fed.  5;  Thomas  v.  Cin- 
cinnati, N.  O.  &  T.  P.  Ry.  Co.,  91 
Fed.  202;  Haehnlen  v.  Drayton,  C. 
C.  A.,  192  Fed.  300. 
,  54  Morgan's  La.  &  Tr.  R.  &  S. 
S.  Co.  V.  Texas  C.  Ry.  Co.,  137  U. 
S.  171,  34  L.  ed.  625;  Contr.  &  B. 
Co.  V.  Continental  Tr.  Co.,  C.  C.  A., 


§  3lJ5a  ] 


I'KEFEKENCES   IN    FORECLOSURE   SUITS 


ir,2i 


In  accordance  with  these  principles  the  practice  arr.se  in 
the  Seventh  Circuit  to  impose  as  a  condition  upon  the  appoint- 
ment of  a  receiver  in  a  suit  for  the  foreclosure  of  a  railroad 
mortgage,  that  debts  for  materials  and  supplies  and  labor  fur- 
nished to  the  mortgagor  within  the  six  previous  months  be  paid 
out  of  the  net  income  or  in  some  cases,  out  of  the  proceeds  of  the 
sale  of  the  road,  before  the  debt  secured  by  the  mortgage." 


108  Fed.  1.  See  George  v.  St. 
Louis  C.  &  W.  Ry.  Co.,  44  Fed.  117. 
Where  a  claim  to  a  preferouee  is 
made  because  money  was  loaned  the 
nioitgagor  at  the  request  of  the 
bondholders,  a  request  made  by  all 
the  bondholders  should  be  shown. 
In  re  Kelly  v.  Green  Bay  &  Minn. 
R.  Co.,  5  Fed.  846. 

55  In    re    Kelly   v.    Green   Bay   & 
Minn.  R.  Co.,  5  Fed.  846.     See  Un- 
ion  Tr.   Co.  V.   Souther,  107   U.   S. 
.591,  593,  27  L.  ed.  488;   Union  Tr. 
Co.  V.  111.  Mid.  Ry.  Co.,  117  U.  S. 
434,    29    L.    ed.    963;    Blair    v.    St. 
Louis,   H.   &   K.   Ry.   Co.,   22    Fed. 
471     474.      Preferences    have    thus 
been   given   to   claims   for   coal  and 
other  fuel.     Burnham  v.  Bowen,  111 
U.  S.  776,  28   L.  ed.   596;    Clark  v. 
Central   of  Ga.   R.   &  B.   Co.,   C.   C. 
A.,  66  Fed.  803;  Va.  &  A.  Coal  Co. 
V.  Central  of  Ga.  R.  &  B.  Co.,  170 
U.    S.    355,    42    L.    ed.    1068;    City 
Trust  Co.  V.  Sedalia  Light  &  Trac- 
tion   Co.,     195     Fed.     845;     United 
States  &   Mexican   Trust   Co.,  C.  C. 
A.     240   Fed.   592;    (in   some   cases 
allowed,      in       others      disallowed) 
Pennsylvania  Steel  Co.  v.  N.  Y.  City 
Ry.   Co.,   216   Fed.   468.     See   High 
on     Receivers     (4th     ed.),     §§  394a- 
394L,    contra,    Carbon    Fuel   Co.    v. 
Chicago,  C.  &  L.  R.  Co.,  C.  C.  A., 
202     Fed.     172.      Locomotives    and 
cars,    Fosdick    v.    Schall,    99    U.    S. 
235,  238,  25  L.  ed.  339;  Fosdick  v. 
Car   Co.,   99   U.    S.    256,   25   L.   ed. 


344;    Frank  v.  Denver  &  R.  G.  Ry. 
Co.,  23   Fed.   123;   Union   Trust  Co. 
of   New   York   v.   Forty-Second   St., 
M.  &  St.  N.  Ave.  Ry.  Co.,  179  Fed. 
981.      But   see   Continental    Tr.    Co. 
V.   Toledo,   St.   L.   &   K.   C.   R.   Co., 
93   Fed.   532;    McGoukey   v.   Toledo 
&  O.  C.  Ry.  Co.,  146  U.  S.  536,  36 
L.    ed.    1079;    Carbon    Fuel    Co.    v. 
Chicago,  C.  &  L.  R.  Co.,  C.  0.  A., 
202     Fed.     172;     car    springs    and 
spirals,  Hale  v.  Frost,  99  U.  S.  389, 
25    L.    ed.    419;    jaekscrews.   South- 
ern  Ry.   Co.   V.  Chapman   Jack   Co., 
117   Fed.  424;    Carbon  Fuel  Co.  v. 
Chicago,  C.  &  L.  R.  Co.,  C  C.  A., 
202   Fed.    172;    repairs,   Fosdick   v. 
Schall,  99  U.  S.  235,  238,  25  L.  ed. 
339;     Miltenberger     v.     Logansport 
Ry.  Co.,  106  U.   S.  286,  311,  27  L. 
ed.    117,    126;    Guaranty    Trust   Co. 
of  New  York   v.   Philadelphia  &   L. 
V.  Traction  Co.,  160  Fed.  761.    Con- 
tra,   Taylor    v.    Delaware    &    E.    R. 
Co.,   C.   C.    A.,    213   Fed.   622.      Re- 
pairs  by   another   railway   company 
to    a    crossing   of   their    tracks,    see 
Missouri,  K.  &   T.  Ry.  Co.  v.  City 
Trust   Co.,   C.   C.   A.,   209   Fed.   45; 
rails,  Southern   Ry.  Co.  v.  Carnegie 
Steel  Co.,  176  U.  S.  257,  44  L.  ed. 
458;    hoard    and   rations   furnislicd 
employees.   Finance   Co.  v.   Charles- 
ton, C.  &   C.   R.   Co.,  49  Fed.   693; 
Northern    Pae.    R.    Co.    v.    Lamont, 
C.  C.  A.,  69  Fed.  23;  but  see  New- 
gass  V.   Atlantic   &  D.  Ry.   Co.,  56 
Fed.    676;    telegrams,    Newgass    v. 


1522 


RECEIVERS 


[§  305a 


Atlantic  &  D.  E.  Co.,  72  Fed.  712; 
furniture,    care,   heat   and   light   of 
stations,    Northern    Pac.    R.    Co.    v. 
Lamont,    C.    C.    A.,    69    Fed.    23; 
globes,  burners  and  uncles,  Pennsyl- 
vania Steel  Co.  V.  N.  Y.  City  Ey. 
Co.,  C.  C.  A.,  216  Fed.  468;    as  to 
electric  poirer,   see   Finance   Co.   of 
Pennsylvania   v.    Trenton    &    N.   B. 
Ry.  Co.,  189  Fed.  282;  advertising, 
Queen    Anne's   Ferry   &   Equipment 
Co.    V.    Queen    Anne's    R.    Co.,    148 
Fed.  41;   contra.  Central  Tr.  Co.  v. 
East  Tenn.,  V.  &  G.'  E.  Co.,  C.  C. 
A.,   80   Fed.   624.     A  claim   for  oil 
necessary    for    use    in    operating    a 
railroad,  furnished  before  a  default 
in  interest,  was  subordinated  to  the 
lien  of  the  mortgagees;  but  a  claim- 
ant for  oil  furnished  since  such  de- 
fault   was    given    an    equitable   lien 
superior    to    the    mortgagees,    when 
the  claimant  had  accepted  a  prom- 
issory   note    of    the    railroad    com- 
pany  on    account    of   part    of    both 
classes  of  indebtedness;   which  note 
he   surrendered   to   llie   receiver   up- 
on  petitioning   for   the   payment   of 
his  claim.     Central  Tr.  Co.  v.  Texas 
&    St.    L.    Ey.    Co.,    23    Fed.    703. 
Claims   for  oil  lubricants  and  sand 
used  in  the  operation  of  a  railroad 
were  allowed  a  preference  over  those 
of   general   creditors,     Pennsylvania 
Steel    Co.    V.    N.    Y.    City    Ry.    Co., 
C.    C.   A.,   216   Fed.   468.      Not   for 
the   payment   of   judgnuMits   against 
the  insolvent  made  by  sureties  upon 
appeal      and      supersedeas      bonds. 
Blair  v.  St.  Louis  R.  &  K.  Ry.  Co., 
23  Fed.  521;  Whitely  v.  Central  Jr. 
Co.,  C.  C.  A.,  76  Fed.  74,  34  L.R.A. 
303;     U.    S.    Fidelity    &    Guaranty 
Co.  v.  U.   S.  &  M.   Trust  Co.,  C.   C. 
A.,   234   Fed.   238;    Equitable   Trust 
Co.     V.    Birmingham,    E.    &    B.    R. 
Co.,      238      Fed.      655;       altliough 


the     appeals     were     taken     a     few 
months      before      the      appointment 
of    the    receiver    and    the    payment 
made   after  the   appointment,   Blair 
V.   St.   Louis,   H.   &  E.   Ey.   Co.,   23 
Fed.    521.      Contra,    Farmers   Loan 
&    Trust    Co.    V.    Northern    Pac.   E. 
Co.,    68    Fed.    36,    39;    City    Trust 
Co.    V.    Sedalia    Light    &    Traction 
Co.,    196    Fed.    845,    849.      But    a 
preference  was  given  when  the  bond 
holders  or  their  trustee  induced  the 
surety   to   execute   the   bond   or   ac- 
quiesced     in     the     execution     with 
knowledge   that   the  mortgagor   was 
insolvent.   Union  Trust  Co.  v.  Morri- 
son, 125  U.  S.  591,  8  Sup.  Ct.  1004, 
31    L.    ed.    825;    Jones    v.    Central 
Trust    Co.,    C.    C.   A.,    73   Fed.    568. 
And    when    the    money    or   property 
released  by  the  bond  could  be  traced 
into  the  possession  of  the  receiver. 
Love   V.   North   Am.    Co.,   C.   C.   A., 
229    Fed.     103.      Preferences    have 
been    allowed   to    sureties   upon   ap- 
peal   and    replevin    bonds   given    on 
behalf  of  a  receiver,  Union  Tr.  Co. 
V.   Morrison,   125   U.   S.   591,  31   L. 
ed.  825;    or  of  a  mortgagee,  Jones 
V.  Central  Tr.  Co.,  C.  C.  A.,  73  Fed. 
568,  or,  it  has  been  held,  of  a  mort- 
gagor,  in   order   to   save    the   prop- 
erty.    City  Tr.  Co.  v.  Sedalia  Light 
&  Traction  Co.,  195  Fed.  845.     Con- 
tra, Pennsylvania  Steel   Co.  v.  New 
York   City   Ey.   Co.,   165   Fed.   485; 
Central    Tr.    Co.    of    New    York    v. 
Third    Ave.    E.    Co.,    C.    C.    A.,    180 
Fed.    710.      The    Circuit    Court    of 
Appeals  for  the  Second  Circuit  held 
that    the    New    York    Labor    Law 
which    gives    a    preference    to    the 
wages    of    employees    upon    the    re- 
ceivership  of  a  New  York  corpora- 
tion   does    not    apply    to   a    receiver 
appointed   in  a  foreclosure  suit  nor 


§  ^U5a] 


PRIiFEREN'CES    IN    FORECLOSIKK    SI  ITS 


1523 


give  such  laborers  preference  over 
mortgagees.  Sclimifltman  v.  Atlan- 
tic Phospliatc  &  Oil  Corp.,  C.  C. 
A.,  2;i0  Fed.  769.  Under  State 
statutes  preferring  the  claim  of  per- 
sons who  perform  labor  upon  the 
projterty,  the  services  of  a  civil  en- 
gineer who  superintended  the  con- 
struction, Central  Tr.  Co.  v.  Kich- 
mond  N.  I.  &  Br.  Co.,  54  Fed.  72.'^.; 
and  of  a  managing  agent  and  a 
superintendent  of  trains,  who  occa- 
sionally ran  cars,  cleaned  cars,  re- 
paired tracks,  and  acted  as  "gener- 
al utility  man,"  were  held  to  be  in- 
cluded, Gilchrist  v.  Helena,  H.  S. 
&  S.  E.  Co.,  58  Fed.  708;  but  that 
of  a  man  who  had  charge  of  the 
office  and  receipts  and  entered  in  a 
book  the  time  of  the  workmen  as 
handed  in  to  him  was  not.  Ibid 
59.  The  claim  of  a  secretary  for  a 
balance  of  .salary  due  him  within 
the  prescribed  time  has  been  thus 
preferred.  Olyphant  v.  St.  Louis 
&  O.  S.  Co.,  22  Fed.  179.  But  see 
Wells  V.  Southern  Min.  Ey.  Co.,  1 
Fed.  270;  Addison  v.  Lewis,  75  Va. 
701,  712,  713;  Union  L.  &  T.  Co.  v. 
Southern  Cal.  M.  E.  Co.,  51  Fed. 
106.  No  case  as  yet  extends  the 
preference  to  the  salary  of  a  pres- 
ident. Nat.  Bank  of  Augusta  v. 
Carolina,  K.  &  W.  E.  Co.,  63  Fed. 
25;  Title  Ins.  &  Tr.  Co.  v.  Home 
Telephone  Co.,  200  Fed.  263.  A 
president  forfeits  any  right  he  may 
possess  to  such  a  preference  by  pub- 
lishing in  the  annual  report  a  state- 
ment that  his  salary  has  been  paid. 
Addison  v.  Lewis,  75  Va.  701,  713. 
A  contract  for  future  employment 
is  not  binding  on  the  receiver. 
Keeler  v.  Atchison,  T.  &  S.  F.  E. 
Co.,  92  Fed.  545.  In  the  follow- 
ing cases  the  fees  of  attorneys  and 


counsel  for  services  immediately 
before  the  receivership  were  allowed 
a  preference:  Finance  Co.  v, 
Charleston  C.  &  C,  Co.,  52  Fed. 
526;  Blair  v.  St.  Louis,  H.  &  K. 
Ey.  Co.,  23  Fed.  521;  Louisville, 
E.  &  St.  L.  B.  Co.  V.  Wilson,  1.38 
U.  S.  .501,  34  L.  ed.  1023.  For  a 
case  where  the  claim  of  attorneys 
for  .services  rendered  before  the  six 
months'  period  was  denied  a  prefer- 
but  allowed  payment  out  of  any 
funds  not  subject  to  the  mortgage, 
see  Chadbourne  v.  Equitable  Trust 
Co.,  C.  C.  A.,  225  Fed.  980.  Fees 
for  the  services  of  attorneys  and 
counsel  have  been  disallowed  a  pref- 
erence where  rendered  more  than  a 
year  (Blair  v.  St.  Louis,  H.  &  K. 
Ey.  Co.,  23  Fed.  521),  and  more 
tlian  two  years,  before  the  receiver- 
ships although  the  services  had  in- 
creased the  value  of  the  property. 
Finance  Co.  v.  Charleston  C.  &  C. 
Co.,  52  Fed.  526.  Fees  for  services 
lierformed  partly  more  than  six 
months  liefore  the  receivership, 
but  principally  within  that  time, 
were  allowed  a  preference  when 
thc3'  had  increased  the  fund. 
Louisville,  E.  &  St.  L.  K.  Co.  v. 
Wilson,  138  U.  S.  501,  34  L.  ed. 
1023.  So  it  seems  would  be  serv- 
ices of  counsel  for  the  corporation 
in  jireparing  bills  to  be  filed  by 
creditors,  under  which  were  ap- 
jioiiiti'd  original  and  ancillary  re- 
ceivers, and  for  advice  therc^\ith 
connected,  although  he  did  not  act 
ns  attorney  of  record.  Linen  Thread 
Co.  V.  A.  Booth  &  Co.,  C.  C.  A., 
192  Fed.  51.5.  When  the  order  of 
appointment  gives  a  preference  to 
"wages  of  employees,"  counsel  fees 
due  an  attorney  who  was  not  cm- 
])U)ycd    as    general    counsel   are   not 


1524 


RECEIVERS 


[§  305a 


This  is  called  ' '  the  six  months  rule. ' '  ^^     Other  Circuits  adopt 
a  similar  practice.^' 


included.     Louisville,  E.  &  St.  L.  E. 
Co.  V.  Wilson,  1.38  U.  S.  501,  34  L. 
ed.    1023.     But   see    Gurney   v.   At- 
lantic &  G.  W.  By.  Co.,  58  N.  Y. 
358.     Attorneys   are   denied  prefer- 
ences for  services  in  attempting  to 
set  aside   the  appointment  of  a  re- 
ceiver    that     had     previously     been 
made,  Barker  v.   Southern  Building 
&  Loan   Ass'n,   181   Fed.    636;    for 
the  payment,  at  the  request  of  the 
president    of    the    company,    a    few 
weeks   before   its    default,    under    a 
promise     of    reimbursement    within 
a    few    months,    of   judgments    and 
other    claims    against   it    for    wages 
and  injuries   to   cattle,   Blair  v.   St. 
Louis,   H.   &  K.   Ry.   Co.,   23    Fed. 
521;      and     for     the     payment     as 
sureties  upon  appeal  bonds  of  judg- 
ments  and  for   services  in  securing 
a  preference  to  unsecured  creditors, 
Louisville,    E.    &    St.    L.    E.    Co.    v. 
Wilson,    138   U.    S.    501,   34   L.   ed. 
1023.      Railroad   mortgages   usually 
provide   for   the   payment,   prior   to 
the  bonds,  of  the  fees  and  expenses 
of  the  trustee;   but  where  the  inac- 
tion   of    the    trustee    has    compelled 
the    institution    of    litigation    by    a 
bondholder    or    other    person    inter- 
ested, the  trustee 's  counsel  fees  may 
be   disallowed.      So   when   the    serv- 
ices   were    unnecessary.      Bound    v. 
S.   C.   B.   Co.,   62   Fed.   536.     When 
on   account   of   the   inaction   of  the 
trustee    or    otherwise    a    necessary 
suit  was  instituted  by   a  bondhold- 
er  or   other   beneficiary   to   preserve 
the    fund,   the   counsel   fees    of    the 
plaintiff  may   be   alloued   a  prefer- 
ence.    Cowdrey   v.   Galveston,   H.   & 
H.   E.  Co.,  93  U.   S.  352,  23  L.   ed. 
950;   Trustees  v.  Greenough,  105  U. 


S.  527,  26  L.  ed.  1157;  Central  R. 
&  B.  Co.  V.  Pettus,  113  U.  S.  116, 
28  L.  ed.  915;  infra,  §421.  The 
counsel  fees  of  the  attorney  for  the 
mortgagor  cannot  be  awarded  a 
preference,  unless  the  mortgage  so 
provides.  Mercantile  Trust  Co.  v. 
Missouri  K.  &  T.  By.  Co.,  41  Fed. 
8,  10;  Union  Loan  &  Trust  Co.  v. 
Southern  Cal.  M.  E.  Co.,  51  Fed. 
106.  Cf.  Mason  v.  Pewabic  Min. 
Co.,  C.  C.  A.,  66  Fed.  391.  Contra, 
Bound  V.  S.  C.  E.  Co.,  43  Fed.  404. 
The  fees,  counsel  fees  and  other 
debts  of  a  receiver,  and  a  master 
appointed  in  a  former  suit  by 
shareholders  or  junior  incumbran- 
ces, may  be  allowed  a  preference. 
Pennsylvania  Co.  v.  .J.  T.  & 
K.  W.  By.  Co.,  93  Fed.  60; 
Beinhart  v.  Augusta,  M.  &  Inv.  Co., 
94  Fed.  901.  Contra,  Am.  L.  & 
Tr.  Co.  V.  South  Atl.  &  0.  B.  Co., 
81  Fed.  62.  A  preference  was 
denied  to  so  much  of  a  judgment 
as  included  costs  incurred  before 
the  receivership.  Williams  v. 
Groat,  73  Fed.  50;  Texas  Co.  v. 
International  &  G.  N.  By.  Co.,  C. 
C.  A.,  5th  Ct.,  237  Fed.  931 ;  out  of 
net  income,  N.  Y.  Tr.  Co.  v.  De- 
troit, T.  &  I.  By.  Co.,  C.  C.  A.,  251 
Fed.  514;  Intercontinental  Eubber 
Co.  v.  Boston  &  M.  E.  B.,  245  Fed. 
127. 

56  In  re  Kelly  v.  Receiver  of  G. 
B.  &  M.  B.  Co..  5  Fed.  846,  851, 
note.  Title  Ins.  &  Tr.  Co.  v.  Home 
Telephone  Co.,  200  Fed.  263. 

57  Atkins  v.  Petersburg  E.  Co., 
3  Hughes,  307;  Blair  v.  St.  Louis, 
H.  &  K.  By.  Co.,  22  Fed.  471,  474; 
Olyphant  v.  St.  Louis  O.  &  S.  Co., 
22  Fed.  179;   Taylor  v.  Phila.  &  B. 


§3()r)a 


I'KEP^EBENCES    IN    Ft  (KlXhOfSLKi:    SlITS 


1525 


This  rule  is  not  arbitrary  but  the  allowance  of  such  a  i>ref- 
erence  is  held  lo  l)e  discretionai\  .^8  i,,  th,.  Second  Circuit  a 
four  months  rule  was  adopted  in  the  oi-der  ai)i)ointing  receivers 
of  the  New  York  Street  Railway  System.*^  Three  months  is 
not  an  uncommon  liniilatioii  of  time.^°  The  fixation  in  the  order 
of  appointment  of  a  period,  incurrence  within  which  shall  give 
a  preference  to  claims  for  operating  expenses,  does  not  deprive 
the  court  of  power  to  allow  a  preference  to  claims  for  supplies 
previously  furnished.^*  Where  current  accounts  furnished  peri- 
odically down  to  the  date  of  the  receivership  include  charges 
for  deliveries  made  shortly  before  the  period  fixed,  the  preference 
may  be  extended  to  include  them.®^ 

Claims  due  eight,^^  and  eleven  ^*  months,  and  even  two  years,^^ 
before  the  receivershij) :  in  one  case  claims  for  loans  to  the 
amount  of  more  than  i|>3, 000,000  advanced  upon  collateral  for 
operating  expenses  of  the  railroad  within  two  years  jjcforc  the 
receivership;^^  a  claim  for  materials  furnished  three  years  be- 
fore the  appointment,  for  which  a  note  was  given  sixteen  months 


R.  Co.,  7  Fed.  377;  Thomas  v.  Cin- 
cinnati, N.  O.  &  T.  P.  Ry.  Co.,  91 
Fed.  195;  Central  Tr.  Co.  v.  East- 
ern T.  &  G.  R.  Co.,  C.  C.  A.,  80  Fed. 
624;  Gregg  v.  Metropolitan  Tr.  Co., 
197  U.  S.  183,  49  L.  cd.  717;  Be 
Metropolitan  Ry.  Receivership,  208 
U.  S.  90,  52  L.  ed.  403. 

68  Central  Tr.  Co.  v.  Chicago  T. 
&  N.  Ry.  Co.,  232  Fed.  939. 

69  Pennsylvania  Steel  Co.  v.  N. 
Y.  City  Ry.  Co.,  208  Fed.  168. 

60  Fosdick  v.  Schall,  99  U.  S.  235, 
238,  25  L.  ed.  339;  Hale  v.  Frost, 
9  U.  S.  389,  25  L.  ed.  419;  Milten- 
berger  v.  Logansport  Ry.  Co.,  106 
U.  S.  286,  308,  27  L.  ed.  117,  125; 
Virginia  &  A.  Coal  Co.  v.  Central 
R.  &  B.  Co.,  170  U.  S.  355,  366,  42 
L.  ed.  1068,  1072.  But  see  Skiddy 
v  Atlantic,  M.  &  O.  R.  Co.,  3 
Hughes,  320. 

61  Pennsylvania  Steel  Co.  v.  N.  Y. 
City    Ry.    C'o.,   208   Fed.    168;    Cen- 

Fed.  Prac.  Vol.  11—26 


tral   Trust  Co.   v.  Chicagu,  A.  lV:   N. 
Ry.  Co.,  232  Fed.  989. 

62  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  208  Fed.  168. 

63  Skiddy  v.  Atlantic,  M.  &  0.  R. 
Co.,  3  Hughes,  320.  Contra,  Spen- 
cer v.  Taylor  Creek  Ditch  Co.,  C. 
C.  A.,  194  Fed.  635. 

64Burnham  v.  Bowen,  111  V.  S. 
776,  28  I.,  ed.  396;  Southern  Ry. 
Co.  v.  Carnegie  Steel  Co.,  176  U.  S. 
257,  286,  44  L.  ed.  458,  571. 

65  Central  Tr.  Co.  v.  Wahasli,  St. 
L.  &  P.  Ry.  Co.,  30  Fed.  332.  .334, 
per  Brewer.  J.;  Farmers'  L.  &  Tr. 
Co.  V.  Kansas  City,  W.  &  N.  R.  Co., 
53  Fed.  182,  i)er  Caldwell.  J.  See 
Atkins  V.  Petersburg  R.  Co.,  3 
Huglies,  307.  But  see  Duncan  v. 
Mobile  &  O.  R.  Co.,  2  Woods,  542: 
Addison  v.  I>ewis,  75  Va.  701,  713. 
714. 

66  Ibid. 


1526 


RECEIVERS 


[§  305a 


before  the  receivership ;  ^"^  and  in  one  case,  those  who  advanced 
mone}^  after  a  default  in  interest  two  years  before  the  receiver- 
ship, to  pay  the  arrears  of  wages  due  striking  laborers,  under  a 
promise  from  the  president  of  the  mortgagor  that  thej^  would 
be  repaid  out  of  the  current  earnings  of  the  road,  have  been 
given  a  preference.^*  And  by  Judge  Caldwell,  "The  debts 
due  from  a  railroad  company  for  ticket  and  freight  balances, 
and  for  work,  labor,  materials  and  machinery,  fixtures,  and 
supplies  of  every  kind  and  character  done,  performed  or  fur- 
nished in  the  construction,  extension'  repair,  equipment,  or  op- 
eration of  said  road  and  its  branches  in  the  State  of  Kansas, 
and  liabilities  incurred  by  said  company  in  the  transportation 
of  freight  and  passengers,  including  damage  to  person  or  prop- 
erty, Avhich  have  accrued  since  the  execution  of  the  mortgage 
set  out  in  the  bill  of  complaint,"  about  two  years  and  three 
months  before  the  receivership ;  ^^  were  allowed  a  preference. 
Because,  perhaps,  of  the  fact  that  of  the  persons  injured  their 
poverty  has  prevented  the  presentation  of  their  equities  with 
sufficient  force,  the  Federal  courts  of  first  instance  have  usually 
held  that  judgments  and  claims  against  a  railroad  company  for 
personal  injuries  are  not  entitled  to  a  preference  "^^  not  even 
over  the  claims  of  lessors  for  rent  and  of  other  general  cred- 
itors.''^^    It  was  so  held  as  to  such  claims  not  reduced  to  judg- 


67  Hale  v.  Frost,  99  U.  S.  389,  25 
L.   ed.  419. 

68  Atkins  v.  Petersburg  K.  Co.,  3 
Hughes,    307. 

69  Farmers '  L.  &  Tr.  Co.  v.  Kan- 
sas City,  W.  &  N.  K.  Co.,  53  Fed. 
182,  184. 

70  Farmers  L.  &  Tr.  Co.  v.  Kan- 
sas City  W.  &  N.  E.  Co.,  53  Fed. 
182,  184;  Farmers'  L.  &  Tr.  Co. 
V.  Northern  Pac.  E.  Co.,  C.  C.  A., 
79  Fed.  227;  Farmers'  L.  &  T.  Co. 
V.  Nestelle,  C.  C.  A.,  79  Fed.  748; 
Veatc-h  v.  Am.  L.  &  Tr.  Co.,  C.  C. 
A.,  79  Fed.  471;  Front  St.  C.  Ey. 
Co.  V.  Drake,  84  Fed.  257;  Farmers' 
L.  &  T.  Tr.  Co.  V.  Longworth,  C.  C. 
A.,  103  Fed.  336;  Hampton  v.  Nor- 
folk  &  W.   Ey.   Co.,   C.   C.    A.,   127 


Fed.  662;  Central  Tr.  Co.  v.  War- 
ren, C.  C.  A.,  121  Fed.  323;  Atlan- 
tic Tr.  Co.  V.  Dana,  C.  C.  A.,  128 
Fed.  209;  Atchison,  T.  &  S.  F.  Ey. 
Co.  V.  Osl)orn,  148  Fed.  606;  Penn- 
sylvania Steel  Co.  V.  N.  Y.  City 
By.  Co.,  165  Fed.  485;  s.  c,  C.  C.  A., 
216  Fed.  458,  472.  Contra,  Central 
Tr.  Co.  V.  Texas  &  St.  L.  Ey.  Co., 
fi2  Fed.  135;  Dow  v.  Memphis  &  L. 
E.  Co.,  20  Fed.  260,  266,  267. 

71  Pennsylvania  Steel  Co.  v.  N. 
T.  City  Ey.  Co.,  165  Fed.  485,  aff 'd 
C.  C.  A.,  208  Fed.  167.  Contra, 
Dow  V.  Memphis  &  L.  E.  Co.,  20 
Fed.  260,  266,  267.  Claims  for 
damages  iy  fire  to  adjoining 
property  caused  before  the  appoint- 
ment   of    the     receiver    have    been 


§  305a] 


PREFERENCES  IN  FORECLOSURE  SUITS 


1527 


merit  until  after  the  i-eceiver.sliip^^  But  such  claims  have  been 
allowed  a  preference  out  of  income  that  accrued  in  the  hands 
of  a  receiver  before  the  institution  of  a  foreclosure  suit,  al- 
thoufih  the  judpment  for  the  tort  was  subsequently  obtained." 
Claims  under  an  Employers  Liability  Act  '*  were  allowed  a 
preference  because  they  were  in  tlie  nature  of  wages.'^  This 
barbarous  doctrine  of  discrimination  against  those  who  suffer 
most  from  the  insolvency,  together  with  the  decisions,  that  such 
claims,  at  least  when  not  reduced  to  judgment  before  the  ad- 
judication,'''^ cannot  be  proved  against  the  assets  of  a  bankrupt,''"^ 
often  makes  the  cripples  and  the  blind  the  only  creditors  who 
are  not  paid.  Although  followed  by  a  few  of  the  Circuit  Courts 
of  Appeals, '''8  it  has  never  been  approved  by  the  Supreme  Court 
of  the  United  States.  Judge  Lacombe  in  the  Second  Circuit 
although  he  felt  bound  by  these  pi-eeedents,  refused  to  sanction 
a  re-organization  which  did  not  give  the  tort  creditors  an  in- 
terest in  the  new  corporation  upon  the  same  terms  as  the  bond- 
holders.'''^     It  has  been  abrogated  bv  statutes  in  several  States.^" 


denied  a  preferenco.  In  re  Dexter- 
ville  M.  &  B.  Co.  v.  Case,  4  Fe<l. 
87;^;  Hiles  v.  Case,  14  Fed.  141; 
s  c,  9  Biss.  549.  Coiitra,  Am. 
Waterworks  &  El.  Co.  v.  Towle,  C. 
C.  A.,  245  Fed.  706. 

72Veateh  v.  Am.  L.  &  Tr.  Co., 
C.  C.  A.,  79  Fed.  471;  St.  Louis  Tr. 
Co.  V.  Riley,  C.  C.  A.,  BO  L.R.A. 
4/5G,  70  Fed.  32;  Farmers'  L.  & 
Tr.  Co.  V.  Green  B.,  W.  &  St.  P. 
Ry.  Co.,  45  Fed.  664;  Fidelity  Ins. 
&  S.  D.  Co.  V.  Norfolk  &  W.  Hy. 
Co.,  114  Fed.  389.  See  Central  Tr. 
Co.  V.  East  Tenn.,  V.  &  G.  R.  Co., 
30  Fed.  895. 

78Veatch  v.  Am.  L.  &  Tr.  Co., 
C  C.  A.,  79  Fed.  471,  477;  s.  c, 
C.  C.  A.,  84  Fed.  274. 

74  N.  J.  P.  L.  1911,  p.  134. 

75  Wood  V.  Camden  Iron  Works, 
221   Fed.  1010. 

^6Iie  Yates,  114  Fed.  365. 
IT  Re    Yates,    114    Fed.    365,    He 
N.    Y.    Tunnel    Co.,    156    Fed.    688, 


s.  c,  C.  C.  A.,  166  Fed.  284;  Brown 
V.  United  Button  Co.,  C.  C.  A.,  149 
Fed.  48,  8  L.R.A.  961. 

78  St.  Louis  Tr.  v.  Riley,  C.  C.  A., 
mi  Ct.,  70  Fed.  32,  30  L.R.A.  456; 
Farmers'  L.  &  Tr.  Co.  v.  Nes- 
telle,  C.  C.  A.,  79  Fed.  748;  Veatch 
V.  Am.  L.  &  Tr.  Co.,  C.  C.  A.,  79 
Fed.  471;  Farmers'  L.  &  Tr.  Co. 
V.  Longworth,  C.  C.  A.,  S.  D.,  103 
Fed.  336;  Central  Tr.  Co.  v.  War- 
ren, C.  C.  A.,  9th  Ct.,  121  Fed. 
323;  Atlantic  Tr.  Co.  v.  Dana,  C. 
C.  A.,  8tli  Ct.,  128  Fed.  208;  Penn- 
sylvania Steel  Co.  V.  N,  Y.  City  Ry. 
Co.,  C.  C.  A.,  2nd  Ct.,  216  Fed.  458. 

79  Pennsylvania  Steel  Co.  v.  N. 
V.  City  Ry.  Co.,  208  Fed.  168,  185. 

80  For  the  eonst ruction  of  the 
Arkansas  Statute,  see  North  Am. 
Co.  V.  St.  Louis  S.  F.  &  R.  Co.,  246 
Fed.  260.  As  to  the  Iowa  statute. 
Central  Tr.  Co.  v.  Central  Iowa  Ry. 
Co.,  38  Fed.  889.  Upon  tliat  of 
the     North     Carolina     statute,     see 


1528 


RECEIVERS 


[§  305a 


111  determining  the  relative  rights  of  contractors  without 
liens  for  supplies  furnished  to  a  street  railway  company  it 
was  held  that  they  were  entitled  to  a  preference  over  the  rest 
when  the  material  furnished  by  them  was  charged  to  opera- 
tion and  shown  by  its  order,  its  quantity  and  nature,  and  the 
department  for  which  it  was  intended  to  be  of  such  a  character ; 
also  when  it  was  of  that  character  or  delivered  to  the  engineer 
of  the  maintenance  of  way  or  other  superior  officer  of  operation 
and  not  charged  to  construction  stores  and  also  where  although 
charged  to  construction  stores  it  was  actually  used  for  the  pur- 
pose of  operation  and  quantity  and  character  thereto  adapted.*^ 

A  creditor  does  not  lose  his  preference  by  taking  notes  of  the 
railroad  company  for  several  months ;  *2  nor  by  renewing  the 
notes  after  the  receiver's  appointment;^^  nor  by  reducing  his 
claim  to  judgment,  even  though  the  judgment  is  entered  pending 


rinance   Co.  v.   Charleston,   C.  &  C. 
Ry.   Co.,    61   Fed.    369;    Fidelity   I. 
Tr.  &   S.   D.   Co.   V.   Norfolk  &   W. 
E.  Co.,  90  Fed.  175;  s.  C,  114  Fed. 
389.     As  to  South  Carolina  statute, 
see  Southern  Ry.   Co.   v.   Bonkright, 
C.    C.    A.,   30    L.R.A.    823,    70    Fed. 
442 ;  Phinzy  v.  Augusta  &  K.  R.  Co., 
63   Fed.   922;    Central   Trust   Co.   v. 
Madden,  C.  C.  A.,  70  Fed.  451 ;  Cen- 
tral Tr.  Co.  V.  Charlotte,  C.  &  A.  R. 
Co.,  65  Fed.  257;   State  v.  Port  R. 
&  A.   Ry.   Co.,   84  Fed.   67.     As  to 
the    Tennessee    statute.    Central    Tr. 
Co.    V.    East    Tenn.,    V.    &    G.    Ry. 
Co.,   70   Fed.    764.     As  to  the  Ver- 
mont  statute,   Grand   T.   Ry.   Co.  v. 
Central    Vt.    R.    Co.,    91    Fed.    696. 
Claims  for  the  valvie  of  a  right  of 
way,    including    damages    to     ease- 
ments, even  when  reduced  to  judg- 
ment,    are     allowed     a     preference 
which    is    analogous    to    a    vendor 's 
lien.      Mercantile    Tr.    Co.   v.   Pitts- 
burgh  &  W.   R.   Co.,   29   Fed.   732; 
Central    Tr.    Co.    v.    Hennen,   C.    C. 
A.,   90    Fed.    593;    Central    Tr.    Co, 
V.  Louis^^lle  &  T.  Ry.  Co.,  81  Fed. 
772;   Fordyce  v.  Kansas  City  &  N. 


Connecting  R.  Co.,  145  Fed.  566. 
Cf.  Wright  V.  Kentucky  &  G.  E. 
Ry.  Co.,  117  IT.  S.  72,  29  L.  ed. 
821;  Central  Tr.  Co.  v.  Wabash 
St.  L.  &  P.  Ry.  Co.,  32  Fed.  187. 

81  Pennsylvania  Steel  Co.  v.  N. 
Y.   City  Ry.   Co;,  229  Fed.   465. 

82  Southern  Ry.  Co.  v.  Carnegie 
Steel  Co.,  176  U.  S.  257,  286,  44 
L.  ed.  458,  471;  Burnham  v.  Bowen, 
111  U.  S.  776,  28  L.  ed.  596;  Cen- 
tral T.  R.  Co.  V.  Texas  &  St.  L.  Ry. 
Co.,  23  Fed.  703.  Preferences  were 
refused  where  notes  were  originally 
taken  for  six  months,  with  the 
right  of  renewal  for  the  same  term, 
and  the  payment  had  been  extended 
for  more  than  five  years,  Lackawan- 
na L.  &  C.  Co.  V.  Farmers'  L.  &  T. 
Co.,  176  U.  S.  298,  317,  44  L.  ed. 
475,  484;  and  where  the  notes  were 
endorsed  by  a  third  party  upon 
whose  credit  the  money  or  supplies 
were  advanced.  Continental  Tr. 
Co.  V.  Toledo,  St.  L.  &  K.  C.  R.  Co., 
93  Fed.  532. 

83  Burnham  v.  Bowen,  111  U.  S. 
776,  28  L.  ed.  596. 


§  305a] 


rUKFERKXCES  IX  FOHECLOSIRE  SI  ITS 


1529 


the  receivershi])  in  a  suit  Ix'^mui  previously,"  but  it  was  held 
that  he  waived  his  prefereuee  l»y  tilin<r  under  tiie  State  statute 
after  the  receiver's  appointment  a  iiotiee  of  a  mechanic's  lien.*'' 

The  delivery  by  the  mortga<r()r  of  a  voucher  for  the  payment 
of  the  claim  does  not  jrive  the  owner  thereof  a  preference,  al- 
though it  expended  the  money  icpresented  by  the  voucher  for 
charges  that  miglit  have  been  prefei-red,*^  nor  does  an  attach- 
ment obtained  after  a  moi-tgage  had  been  executed  but  before 
the  bonds  thereunder  had  l)een  issued :  *'  nor  recovery  of  a 
judgment  after  a  receivership. ^^ 

In  tlie  allowance  of  interest  upon  preferred  claims,  it  has 
been  held  that  the  decisions  of  the  State  court  need  not  be  fol- 
lowed, although  they  would  be  binding  in  actions  at  common 
law.*^  Tt  seems  that  interest  will  be  allowed  when  stijjulated  for 
in  the  contract ;  ^^  but  it  has  l)een  hekl  that  when  it  is  not 
stipulated  for  by  contract,  nor  expressly  authorized  by  statute, 
it  cannot  be  allowed  during  the  delay  necessary  for  the  settle- 
ment of  the  receivership.^^ 

Nor  subsequently  to  the  appointment  of  the  receiver.^^  \ 
purchase  of  the  property  of  the  insolvent  who  promises  to  pay 
preferential  claims  is  liable  for  interest  from  the  date  of  his 
purchase.*^ 

In  the  case  of  taxes  it  was  held  that  interest  ran  until  the 
order  for  payment,  but  not  subsequently.^* 

V.    Clark,    C.       Steel  Co.  v.  Now  York  City  Rr.  Co., 


84  Central    Tr.    Co 
C.   A.,   81   Fed.  269. 

85  State  Trust  Co.  v.  Kansas 
City,  P.  &  G.  R.  Co.,  129  Fed.  455. 

86  First  Trust  &  Saving:s  Bank  v. 
Soutliern  Indiana  Ry.  Co.,  19o  Fed. 
330. 

if  Be  Sunflower  State  Refining 
Co.,  18:!  Fed.  8:U. 

88  Mercantile  Tr.  Co.  v.  So.  State 
L.  &  Tr.  Co.,  8(i  Fed.  711;  Williams 
V.  Groat,  7.!  Fed.  59. 

89  Pennsylvania  Steel  Co.  v.  New 
York  City  Ry.  Co.,  C.  C.  A.,  198 
Fe.i.   721,   778. 

90  Hitner  v.  Diamond  State  Steel 
Co.,  176  Fed.  :{84;  Tredegar  Co.  v. 
Seaboard  Air  Line  Ry.,  C.  C.  A., 
183    Fed.    289.      See    Pennsylvania 


C.  C.  A.,  198  Fed.  721. 

91  Tredegar  Co.  v.  Seaboard  Air 
Line  Ry.,  C.  C.  A.,  18.3  Fed.  289. 
There  the  reeeivership  wfis  prayed 
by  the  insolvent,  l)ut  a  crossbill 
asking  similar  relief  was  filed  by  a 
trustee. 

92  New  York  Trust  Co.  v.  De- 
troit, T.  &  I.  Ry.  Co.,  C.  C.  A.,  251 
Fed.  514;  Pennsylvania  Steel  Co. 
V.    N.    Y.   City    Hy.    Co.,    C.    C.    A., 

216  Fed.  458. 

93  Moore    v.    Donahoo,    C.    C.    A., 

217  Fed.  177. 

94  Bear  River  Paper  Bag  Co.  v. 
City  of  Petoscy,  C.  C.  A.,  241  Fe.l. 
53. 


1530 


RECEIVERS 


[§  305a 


All  assignee  of  a  preferred  claim  has  all  the  rights  of  his 
assignor.^5  ^  surety  upon  a  supersedeas  bond  was  given  subroga- 
tion to  the  preferential  rights  of  the  owners  of  the  claims  which 
he  paid ;  ^^  but  usually  a  guarantor  who  pays  a  debt  has  no  more 
right  to  a  preference  than  the  original  creditor.^'''  A  purchaser 
under  a  decree  which  provides  for  the  payment  of  preferred 
claims  cannot  contest  their  right  to  a  preference ;  ^^  and  upon 
their  payment  he  is  not  entitled  to  be  subrogated  to  the  rights 
of  the  claimants.^^  Where  payment  had  been  made  on  account 
of  advances,  some  of  which  were  entitled  to  a  preference  and  some 
not,  it  was  held  that  in  the  absence  of  a  prior  application  by  the 
parties,  the  mortgagee  could  procure  their  application  upon  the 
preferred  claims. i**"  This  doctrine  applies  to  the  foreclosure  of 
any  mortgage  except  those  made  by  railway,  telegraph,  or  other 


95  Union   Tr.   Co.   v.  Walker,   107 
U.  S.  596,  27  L.  ed.  490;   Biirnham 
V.  Bowen,  111  U.  S.  776,  28  L.  ed. 
596;     Union    Tr.    Co.    v.    Southern 
Sawmills   &   Lumber   Co.,   C.   C.   A., 
166   Fed.    193.      Where,   before   the 
ax)pointment  of  a   receiver,  a  bond- 
holer  accepted  a  compromise  which 
sealed    down    the    indebtedness;    in 
pursuance    thereof    surrendered    his 
bonds,   under    an    agreement   to   re- 
ceive   in    exchange    new    bonds    se- 
cured   by    a    subsequent    mortgage; 
and   did   receive   enough   to   replace 
the  greater  part  of  those  which  he 
surrendered;   but  there  were  a  few 
for   which   no   new   bonds   issued, — 
apparently    because    none    were    en- 
graved for  so   small   an   amount;  — 
it    was    held    that    his    unadjusted 
claim  for  this  balance  remained  se- 
cured by  the  old  mortgage,  and  was 
superior    to   those    under   the   subse- 
quent mortgage  given  to  secure  the 
new  bonds.     Blair  v.  St.  Louis,  H. 
&    K.   Ry.   Co.,   23   Fed.    524.      But 
where    rails    had    been    sold    to    an 
individual   upon  his   own  credit   for 
the   use  of   the  railroad  by  its  les- 
see,   a    preference    against    the    in- 


terest of  the  lessor  was  denied. 
Rhulender  v.  Ches.,  O.  &  S.  W.  R. 
Co.,  C.  C.  A.,  91  Fed.  5.  For  a 
ca.«e  where  it  was  held  that  a  party 
who  paid  a  preferred  claim  became 
an  equitable  assignee  of  the  prefer- 
ence, see  Kneeland  v.  Luce,  141  U. 
S.  491,  35  L.  ed.  830,  For  one 
where  it  was  held  that  he  did  not, 
see  U.  S.  Tr.  Co.  v.  Western  C.  Co., 
C.  C.  A.,  81  Fed.  454. 

96  Love  V.  North  Am.  Co.,  C.  C. 
A.,  229  Fed.  103. 

97  Farmers '  L.  &  Tr.  Co.  v.  Stutt- 
gart &  A.  R.  Co.,  92  Fed.  246; 
Blair  v.  St.  Louis,  H.  &  K.  Ry.  Co. 
(Norton,  Intervenor),  23  Fed.  523. 
But  see  Union  Tr.  Co.  v.  Morrison, 
125  U.  S.  591,  ,31  L.  ed.  825;  Peo- 
ples V.  Peoples  Bros.,  254  Fed.  489. 

98Swann  v.  Wright's  Ex'r,  110 
U.  S.  590,  28  L.  ed.  252.  St.  Louis 
S.  W.  Ry.  Co.  V.  Stark,  55  Fed. 
758;  infra,  §394g;  Laughlin  v.  U. 
S.  Rolling  Stock  Co.,  64  Fed.  25. 

99  Morgan's  L.  &  T.  R,  &  S.  S. 
Co.   V.   Moran,   91   Fed.   22. 

100  Illinois  T.  &  S.  Bank  v.  Ot- 
tumwa  El.   Ry.  Co.,  89  Fed.  235. 


§305a] 


PREFERENCES    IN    lORECLOSURE   SUITS 


1531 


companies  to  which  are  delegated  tlie  right  of  eminent  domain  or 
which  are  engaged  in  i)nblic  service,^"^  is  a  mooted  rjuestion. 
It  applies  to  a  mortgage  made  by  an  electric  light  company.^*'^ 
It  has  been  extended  to  a  receivership  of  a  mine,^®'  bnt  not  to 
a  building  company. ^*'^  It  is  dfiuht  fiil  whether  it  applies  to  a 
holding  (•om])any  which  has  the  control  of  a  system  of  street 
railroads.i''^ 

It  has  been  held  that  pending  a  receivership  in  a  Federal 
court,  where  parlies  are  entitled  to  a  lien,  and  can  secure  it 
by  proceedings  under  a  State  statute,  they  are  not  required  to 
go  to  the  expense  of  such  proceedings,  but  the  Federal  court 
will  act  as  though  all  needful  steps  had  been  taken  to  establish 
the  lien ;  ^^"^  and  that  "where  like  demands  are  presented  from 
other  States  in  which  no  statutory  lieu  thereon  exists,  thev  shall 
be  entitled  to  the  same  status,  so  that  statutory  and  equitable 
liens  may  rest  on  a  like  basis.  "^"'^  The  right  to  a  preference 
may  be  lost  by  laches  ;i°8  but  it  need  not  be  asserted  when  the 
claim  is  first  proved. ^"^  Laches,  during  which  preference  claims 
have  arisen,  may  deprive  a  general  creditor  of  his  right  to  compel 
a  receiver  in  a  foreclosure  suit  to  surrender  propertj-  not  covered 


101  Wood  V.  Guarantee  Tr.  &  S. 
D.  Co.,  128  U.  S.  416,  32  L.  ed. 
472;  Eaht  v.  Attrill,  106  N.  Y. 
42.3,  60  Am.  Kep.  4.56;  Reyburn  v. 
Consumers'  Gas,  F.  &  L.  Co.,  29 
Fed.  561;  Seventh  Nat.  Bank  v. 
Shenandoah  Iron  Co.,  35  Fed.  436; 
Fidelity  I.  &  S.  D.  Co.  v.  Shenan- 
doah Iron  Co.,  42  Fed.  372;  U.  S. 
Investing  Corporation  v.  Portland 
Hospital,  40  Or.  523,  67  Pac.  194, 
56   L.R.A.    627. 

102  Illinois  Tr.  &  Sav.  Bank  v.  Ot- 
tumwa  El.  Ry.  Co.,  89  Fed.  2.35. 

103  Reinhart  v.  Augusta  M.  &  I. 
Co.,  94  Fed.  901.  But  see  Fidelity 
Ins.  &  Safe-Deposit  Co.  v.  Shenan- 
doah Iron  Co.,  42  Fed.  372. 

104  Central  Trust  Co.  v.  Union 
Terminal  Co..  253  Fed.  429.  See 
Eabt  V.  Attrill,  106  N.  Y.  423,  6 
Am,  Rep.  456. 


105  Westinghouso  El.  &  Mfg.  Co. 
V.  Brooklyn  Rapid  Transit  Co.,  C. 
C.  A.,  260  Fed.  550.  See  infra, 
§  309. 

106  Brewer,  J.,  in  Central  Tr.  Co. 
V.  Texas  &  St.  L.  Ry.  Co.,  23  Fed. 
673,  674,  675;  Treat,  J.,  in  Blair  v. 
St.  Louis,  H.  &  K.  R.  Co..  19  Fed. 
861 ;  Commonwealth  Roofing  Co.  v. 
North  Am.  Tr.  Co.,  C.  C.  A.,  135 
Fed.  984.  But  see  Hassall  v.  Wil- 
cox, 130  IT.  S.  493,  32  L.  ed.  1001. 

107  Treat,  J.,  in  Blair  v.  St.  Louis, 
H.  &  K.  R.  Co.,  19  Fed.  861,  862. 

108  Lockport  Felt  Co.  v.  United 
Box  Board  &  Paper  Co.,  189  Fed. 
767;  First  Trust  &  Savings  Bank  v. 
Southern  Indiana  Ry.  Co.,  195  Fed. 
330,  where  a  sale  had  taken  place. 

109  Pennsylvania  Steel  Co.  v.  N. 
Y.  City  Ry.  Co.,  187  Fed.  287. 


1532  tiECEivEiis  [  §  305b 

by  the  mortgage. ^^'^  In  one  case,  a  preference  was  denied,  when 
a  majority  of  the  creditors  of  the  same  class  had  waived  their 
right  to  the  same.^^^  Where  a  receiver  was  appointed  because 
the  taSes  upon  the  mortgaged  premises  were  unpaid,  there  being 
Uo  proof  then  of  any  other  danger  to  the  security  of  the  mort- 
gagee and  the  mortgage  not  covering  the  rents ;  it  was  held  that 
after  pa^^ment  of  such  taxes  aud  the  expense  of  the  receivership, 
the  balance  of  the  rents  collected  by  him  must  be  paid  to  the 
owner  of  the  equity  of  redemption  although  a  foreclosure  sale 
had  meanwhile  taken  place  and  resulted  in  a  deficiency.^^^  It 
was  held  that  intervening  petitions  filed  by  judgment  creditors, 
after  the  appointment  of  a  receiver  under  a  creditor's  bill,  oper- 
ated as  equitable  levies  and  created  equitable  liens  for  the  satis- 
faction of  the  same  out  of  the  income  and  property  of  the  cor- 
poration from  the  date  of  their  filing,  subject  to  prior  liens  and 
superior  equities;  ^^^  and  that  where  a  foreclosure  suit  had  been 
begun,  subject  to  the  appointment  of  such  receiver  a  mortgagee 
could  proj^erly  assert  its  right  to  possession  intervention  in  the 
receivership,  and  that  such  intervention  gave  it  a  prior  right  to 
the  income  earned  ])y  the  receiver  over  subsequent  intervening 
judgment  creditors  whose  judgments  were  obtained  after  the 
receiver  was  appointed,  when  the  mortgage  covered  all  the  de- 
fendant's property  and  income,  although  the  existing  receiver- 
ship had  not  been  formally  extended  for  the  benefit  of  the  mort- 
gagee prior  to  the  judgment  creditor's  intervention. ^^^ 

§  305b.  Practice  upon  application  for  such  preference.  A 
claimant  to  a  preference  of  a  class  for  which  no  provision  has 
been  made  by  a  previous  order  or  decree  cannot  regularly  apply 
upon  a  motion,  but  he  should  plead  his  claim  in  a  petition  for 
an  intervention,^  or  in  a:  proper  case  in  an  original  bill,^  an 
original  bill  is  the  proper  practice  when  a  preference  is  sought 
over  the  lien  of  a  mortgagee  which  is  not  a  party  of  the  suit.' 

110  State  Tr.  Co.  v.  Kansas  City,  H*  Atlantic  Tr.  Co.  v.  Dana,  C.  C. 
P.  &  G.  E.  Co.,  120  Fed.  .398.  A.,  128  Ted.  209. 

111  Empire  State  Surety  Co.  v.  §  .305b.  1  Grand  Trunk  Ey.  Co. 
Carroll  County,  C.  C.  A.,  194  Fed.  v.  Central  Vt.  E.  Co.,  91  Fed.  561. 
593.  2  Louisville  &  N.  E.  Co.  v.  Mem- 

112  So.  Building  &  L.  Ass 'n  v.  phis  G.  L.  Co.,  C.  C.  A.,  125 
Carey,  C.  C.  A.,  114  Fed.  288.  Fed.   7. 

113  Atlantic  Tr.  Co.  v.  Dana,  C.  C.  3  Texas  Co.  v.  International  &  G. 
A.,  128  Fed.  209.  N.  Tfy.  Co.,  C.  C.  A.,  237  Fed.  931. 


§  SOob]      ['RACTICE    UPOX    AI'PLICATIONS    FOR    I'KEFERENC  F.  Vi'^l 


When  there  are  net  earnings  in  the  liands  of  the  receiver 
claimants  entitled  to  a  preference  may  apply  for  payment  with- 
out waiting  the  termination  of  the  receivership.*  P>ut  they  nnist 
allege  and  prove  that  the  receivers  have  sufficient  funds  to  pay 
them.'*  It  has  been  held  that  pending  a  receivership  in  a  Fed- 
eral court,  where  parties  are  entitled  to  a  lien,  and  can  sec\ire 
it  by  proceedings  under  a  State  statute,  they  are  not  required 
to  go  to  the  expense  of  such  proceedings,  but  the  Federal  court 
will  act  as  though  all  needful  steps  had  been  taken  to  estal)lisli 
the  lien;«*  and  that  ''where  like  demands  are  presented  froni 
other  States  in  which  no  statutory  lien  therefor  exist,  liiey  shall 
be  entitled  to  the  same  status,  so  that  statutory  and  equitable 
liens  may  rest  on  a  like  basis."' 

The  right  to  a  preference  may  be  lost  by  laches :  «  but  it  need 
not  be  asserted  when  the  claim  is  first  proved.^  Laches,  during 
which  preferential  claims  have  arisen,  may  deprive  a  general 
creditor  of  his  right  to  compel  a  receiver  in  a  foreclosure  suit 
to  surrender  property  not  covered  by  the  mortgage.^"  A  pref- 
erence was  denied,  when  a  majority  of  the  creditors  of  the  same 
class  had  waived  their  right  to  the  same.^^ 

Where  a  receiver  was  appointed  because  the  taxes  upon  the 
mortgaged  premises  were  unpaid,  there  being  no  proof  then  of 
any  other  danger  to  the  security  of  the  mortgagee  and  the  mort- 
gage not  covering  the  rents;  it  was  held  that,  after  payment 
of  such  taxes  and  the  expense  of  the  receivership,  the  balance 
of  the  rents  collected  by  him  must  be  paid  to  the  owner  of  the 


4  Texas  Co.  v.  International  &  0. 
N.  Ry.  Co.,  C.  C.  A.,  2:^7  Fed.  921. 

SLoveland  &  Hinyan  Co.  v.  Blair, 
C.  C.  A.,  222  Fed.  207. 

6  Brewer,  J.,  in  Central  Tr.  Co. 
V.  Texas,  &  St.  Ry.  Co.,  2.3  Fed. 
673,  674,  675;  Treat,  J.,  in  Blair 
V.  St.  Louis,  H.  &  R.  Co.,  19  Fed. 
861;  Coninionwealtli  Roofing  Co.  v. 
North  Am.  Tr.  Co.,  C.  C.  A.,  Ur, 
Fed.  984.  But  see  Hassell  v.  Wil- 
cox, 130  U.  S.  493,  32  L.  ed.  1001; 
Appeal  of  James  Rees  &  Sons  Co.. 
C.  C.  A.,  237  Fed.  ").').5  (in  admir- 
alty). 


7  Treat,  J.,  in  Blair  v.  St.  Louis, 
H.   &  K.   R.  Co.,  19  Fed.   861,  862. 

8  Lockport  Felt  Co.  v.  United  Box 
Board  &  Paper  Co.,  189  Fed.  767; 
First  Trust  &  Savings  Bank  v. 
Southern  Indiana  Ry.  Co.,  195  Fed. 
.330,   where  a   sale  had   taken  place. 

9  Pennsylvania  Steel  Co.  v.  X.  Y. 
City  Ry.  Co.,   187   Fed.  287. 

10  State  Tr.  Co.  v.  Kansas  City, 
P.  &  G.  Co.,  120  Fed.  398. 

11  Empire  State  Surety  Co.  v 
Carroll  County,  C.  C.  A.,  194  Fed. 
593. 


1534  RECEIVERS  [§  305b 

equity  of  redemption  although  a  foreclosure  sale  had  meanwhile 
taken  place  and  resulted  in  a  deficiency.  ^^ 

It   was   held   that    intervening   petitions   filed   by   judgment 
creditors,  after  the  appointment  of  a  receiver  under  a  creditor's 
bill,  operated  as  equitable  levies  and  created  equitable  liens  for 
the  satisfaction  of  the  same  out  of  the  income  and  property  of 
the  corporation  from  the  date  of  their  filing,  subject  to  prior 
liens  and  superior  equities ;  ^^  and  that  where  a  foreclosure  suit 
had  been  begun,  subject  to  the  appointment  of  such  receiver, 
a  mortgagee  could  properly  assert  its  right  to  possession  by 
intervention  in  the  receivership,  and  that  such  intervention  gave 
it  a  prior  right  to  the  income  earned  by  the  receiver  over  sub- 
sequent intervening  judgment  creditors,  whose  judgments  were 
obtained  after  the  receiver  was  appointed,  when  the  mortgage 
covered  all  the  defendant's  property  and  income,  although  the 
existing  receivership  had  not  been  formally  extended  for  the 
benefit  of  the  mortgagee  prior  to  the  judgment  creditor's  inter- 
vention.i*     It  has  been  held  that  an  averment,  that  when  an 
action  had  occurred  the  railroad  was  being  operated  by  a  com- 
pany acting  as  the  agent  of  the  bondholders,  was  a  conclusion 
of  law  too  vague  and  general  to  show  with  sufficient  certainty 
that  it  was  well  founded  -.  ^^  that  an  averment,  upon  informa- 
tion and  belief,  that  within  twelve  or  eighteen  months  before 
the  complainant's  bill  was  filed  there  had  been  a  diversion  of 
a  gas  company's  earnings  to  the  payment  of  interest  on  its  mort- 
gage bonds  and  for  the  improvement  of  the  plant,  which  failed 
to  allege  the  dates  or  amounts  of  such  diversion  or  that  they 
occurred  within  the  time  when  the  indebtedness  to  the  com- 
plainant arose,  was  insufficient  because  of  its  lack  of  certainty ;  ^^ 
but  that,  where  the  pleader  avers  the  receipt  by  the  receiver 
of  earnings  properly  applicable  to  his  claim,  he  need  not  allege 
that  such  earnings  had  not  been  disbursed,  since  such  fact,  if  it 
existed,  was  a  matter  of  defense.^''     The  attorneys  of  both  the 

12  So.    Building    &    L.    Ass'n    v.  16  Louisville  &  N.  B.  Co.  v.  Mem- 
Carey,  C.  C.  A.,  114  Fed.  288.                  phis  Gas   Light   Co.,   C.   C.   A.,   125 

13  Atlantic  Tr.  Co.  v.  Dana,  C.  C.        Fed.   97. 

A.,  128  Fed.  209.  17  Veatch  v.  Am.  L.  &  T.  Co.,  C. 

14  Atlantic    Tr.    Co.    v.    Dana,    C.       C.   A.,   84   Fed.    274. 
C.  A.,  128  Fed.     See  §  302b,  supra. 

16  Veatch    v.    Am.    L.    &    Ir.    Co., 
C.   C.   A.,  79  Fed.   471. 


§  306]    PROPERTY  OVER  WHICH   RECEIVERS  MAY  BE  APPOINTED      1535 

receiver  and  the  complainant  sliould  liavp  notice  of  tlie  liearinj^ 
of  such  claim  before  a  inaster.^^  An  ai)plication  for  a  preference 
may  be  denied  with  leave  to  renew  nntil  other  claims  to  pref- 
erences have  been  decided  ami  the  determination  of  litigation 
which  may  increase  the  assets.^^  An  entry  upon  the  books  of 
the  mortfjagor  showing  the  claim  to  be  good  is,  in  the  absence 
of  suspicious  circumstances,  prima  facie  proof.^^  'Die  consent 
of  the  receiver  cannot  prevent  any  creditor  who  is  a  party  to 
the  record  from  taking  m\  ajipeal  from  an  oidcr  granting  a 
preference  to  anotlier.^i  Authority  given  to  the  receiver  in 
the  order  to  pay  a  certain  class  of  claims  as  preferences  protects 
him  in  ease  he  makes  such  payments,  but  is  not  an  adjudica- 
tion which  gives  them  a  right  to  demand  such  priority,  should 
the  court  subsequently  determine  that  they  are  not  entitled 
thereto.22  An  order  directing  a  reccivci-  to  carry  nut  his  cor- 
poration's contracts  does  not  necessarily  give  tliosc  who  claim 
damages  for  a  breach  of  those  contracts  a  preference  over  lien- 
holders.23  An  order  granting  a  preference  may  be  set  aside 
at  any  time  before  the  final  decree.'^* 

§  306.  Property  over  which  receivers  may  be  appointed.  X 
receiver  may  be  appointed  to  ju'eserve  and  take  possession  of 
every  kind  of  property,  whether  the  same  be  what  is  termed 
corporeal  or  incorporeal,  which  can  be  seized  by  execution  at 
law  or  which  constitutes  equitable  assets.^  Thus  receivers  have 
been  appointed  to  collect  and  hold  the  profits  of  a  rectory .^  of 


18  Blair  v.  St.  Louis,  H.  &  K.  R. 
Co.,  19  Fe<i.  861,  862. 

19  Pennsylvania  Steel  Co.  v.  N. 
Y.  City  Ry.  Co.,  182  Fed.  IS.'S. 

20  Blair  v.  St.  Louis,  TI.  &  K.  R. 
Co.,  19  Fed.  861,  862,  Treat,  J.;  s. 
c,  22  Fed.  471,  472,  Brewer,  J. 

21  Empire  State  Surety  Co.  v, 
Carroll  County,  C.  C.  A.,  194  Fed. 
59.3. 

22  Gregg  v.  Met.  Tr.  Co.,  197  U. 
S.  18.S.  149  L.  ed.  717;  Carbon 
Fuel  Co.  V.  Chicago,  C.  &  L.  R. 
Co.,  C.  C.  A.,  202  Fed.  172,  175; 
Chicago  &  A.  R.  Co.  v.  Umted  States 
&  Mexican  Trust  Co.,  225  Fed.  940. 


23  Olyphane  v.  St.  Louis  O.  &  S. 
Co.,  28  Fed.  729. 

24  Atchison,  T.  &  S.  F.  Ry.  Co. 
V.  Osborn,  C.  C.  A.,  148  Fed.  606. 

§  H06.  1  Davis  v.  Gray,  16  Wall. 
20;^,  217,  21  L.  ed.  447,  452;  Davis 
V.  Duke  of  Marlborough,  2  Swanst. 
108,  127;  Blanchard  v.  Cawthorne, 
4  Sim.  566.  See  Palmer  v.  Vaughau, 
;>  Swanst.  173;  Meriwether  v.  Gar- 
rett, 102  U.  S.  472,  501,  26  L.  ed. 
197,    200. 

2  Silver  v.  Bishop  of  Norwich,  3 
Swanst.  112;  White  v.  Bishop  of 
Peterborough,  3  Swanst.  109. 


1536 


RECEIVERS 


[§306 


a  college  fellowship,^  of  a  patent  for  an  invention,*  of  the 
offices  of  a  master  forester  in  a  royal  forest,^  and  of  a  county 
clerk  of  peace ;  ^  of  the  tolls  of  a  turnpike ;  "^  to  manage  and 
collect  the  profits  of  mines,^  plantations,^  a  theatre,^®  a  news- 
paper," a  hotel,i2  a  ship,!^  a  line  of  telegraph,i*  a  wireless  tele- 
graph system,"  and  a  railroad ;  ^^  to  exercise  the  right  to  sell 

of  the  party  who  may  ultimately  be 
adjudged   entitled   to  the   ground." 

9  Morris  v.  Elme,  1  Ves.  Jr.  139. 

10  Const.  V.  Harris,  T.  &  E.  496, 
528. 

11  Chaplin  v.  Young,  6  L.  T.  (N. 
S.)  97;  Kelley  v.  Hutton,  17  W. 
B.  425. 

12  Raht  V.  AttriU,  106  N.  Y.  423, 
60  Am.  Eep.  456;  Cater  v.  Wood- 
bury, 3  App.  D.  C.  60. 

13  Cronenwett  v.  Boston  &  A.  Tr. 
Co.,  95  Fed.  52.  In  this  case  the 
refciver,  who  had  been  appointed 
under  a  creditor's  bill  against  an 
insolvent  corporation,  was  directed 
to  distribute  the  insurance  money 
after  the  vessel's  loss  in  accordance 
with  the  priorities  that  would  be 
recognized  by  a  court  of  admiralty. 

14  United  L.  Tel.  Co.  v.  Boston 
S.  D.  &  T.  Co.,  147  U.  S.  431,  37 
L.  ed.  231. 

15  Williams  v.  United  Wireless 
Tel.  Co.,  N.  Y.  Sup.  Ct.  Jime  20th, 
1911,  Cohalan,  J.,  in  which  the  au- 
thor   was    counsel. 

16  Stevens  v.  Davison,  18  Grat. 
(Va.)  819,  98  Am.  Dec.  692;  Davis 
v.  Gray,  16  Wall.  203;  21  L.  ed. 
447;  Barton  v.  Barbour,  104  U.  S. 
126,  26  L.  ed.  672;  infra,  §308. 
Before  the  passage  of  a  statute  al- 
lowing it  to  be  done,  the  English 
court  held  that  a  receiver  could 
not  be  appointed  to  manage  a  rail- 
road, Gardner  v.  London,  C.  &  D. 
Ry.  Co.,  L.  E.  2  Ch.  App.  201;  but 
such  an  appointment  is  authorized 
without   statutory   authority   in   this 


3Feistel  v.  King's  College,  10 
Beav.  491. 

4Parkhurst  v.  Kinsman,  2 
Blatchf.  78.     See  supra,  §  302. 

6  Blanchard  v.  Cawthorne,  4  Sim. 
566. 

6  Palmer    v.    Vaughan,    3    Swanst. 

173. 

7Knapp  V.  Williams,  4  Ves.  430, 
note;  Dumville  v.  Ashbrooke,  3  Euss. 
98,  note. 

SJefferys    v.    Smith,    1    J.    &    W. 
298;     Tornanses    v.    Melsing,    C.    C. 
A.,  106  Fed.  E.  775,  784,  Eoss,  J.: 
' '  In  the  case  of  a  vein  or  lode  mine, 
with   tunnels,   drifts,   and   shafts   in 
which  there  are  timbers  to  be  placed, 
replaced,    or   repaired,    or    water    to 
be  controlled,  it  sometimes  happens 
that  the  appointment  of   a  receiver 
becomes  necessary  to  take  possession 
of    and    operate    the    mine    pending 
the   litigation,   in   order   to   preserve 
the  property;  but  even  in  that  class 
of  cases  the  necessity  for  a  receiver 
is  not  of  frequent  occurrence.     This 
is  well  shown  in  the  case  of  Bigbee 
v.  Summerour,  101  Ga.  201,  28  S.  E. 
642.     So,  too,  in  the  ease  of  placer 
mining  claims  valuable  only  for  the 
oil  contained  in  them,  where  it  be- 
comes necessary  for  the  proper  pre- 
servation    of     the    claim     that    the 
ground    be    worked    to    prevent    its 
substance  from  being  drawn  off  by 
the    operation    of    wells    on    adjoin- 
ing   ground,    or    where    it   is   shown 
that  a  receiver  is  necessary  in  order 
that  the  annual  work  required  by  law 
may    be   performed    for    the   benefit 


§  306]     PROPERTY  OVER  WHICH   RECEIVERS  MAY  BE  Al'l'OINTED      lOoT 

a  conditional  riglit  of  membership  in  an  exchange ;  i'^  to  exercise 
options  to  buy  land;"  and  to  take  possession  of  tiie  estate  of 
an  intestate  \vi1li  power  to  apply  for  letters  of  administration. ^^ 
After  tiie  repeal  of  the  charter  of  the  city  of  Mcmjihis,  a  receiver 
was  appointed  to  take  possession  of  all  its  i)roperty  which  could 
be  subjected  to  the  payment  of  its  debts.^"  But  the  Supreme 
Court  refused   to  direct   such   a    receiver  to  levy  1axes,2i  or  to 


country,  and  evrii  in  England  a  re- 
ceiver might  always  be  appointed 
to  receive  the  tolls  of  a  railroad. 
Hopkins  V.  W.  &  B.  C.  Co.,  L.  R. 
6  Eq.  437;  .Jones  on  Railroad  Se- 
curities, §  456.  A  lugubrious  pic- 
ture of  the  result  of  such  appoint- 
ments was  drawn  liy  Miller,  J.,  in 
Barton  v.  Barbour.  104  U.  S.  126, 
1.37,  138.  See  also  the  language  of 
the  Governor  of  Texas  quoted  in 
Mercantile  Tr.  Co.  v.  Texas  &  P. 
Ry.  Co.,  51  Fed.  529,  533,  537. 

17  Powell  V.  Waldron,  89  N.  Y. 
328;  In  re  Ketehum,  1  Fed.  840; 
In  re  Werder,  15  Fed.  789;  Hyde 
V.  Woods,  94  IT.  S.  523,  24  L.  ed. 
264;   Piatt  v.  Jones,  96  N.  Y.  24. 

18  Twin  City  Power  Co.  v.  Bar- 
rett, C.  C.  A.,  126  Fed.  302. 

19  Be  Mayer,  L.  R.  3  P.  &  D.  39. 

20  Meriwether  v.  Garrett,  102  U. 
S.  472,  26  L.  ed.  197. 

21  "1.  Property    held    for    ))ul)lic 
uses,      such      as     public      buildings, 
streets,   squares,  parks,   promenades, 
v;harves,  landing-places,  fire-engines, 
hose,     and     hose-carriages,     engine- 
houses,  engineering  instruments  and 
generally    everything   held    for   gov- 
ernmental  purposes,  cannot  be   sub- 
ject   to    the    payment    of   the    debts 
of    the    city.      Its    public    character 
forbids  such  an  appropriation.     Up- 
(  n   tlic  njical  of  tlie  charter  of  the 
city     such    projjcrty     passes    under 
the  immediate  control  of  the  State, 
the    power    once    delegated    to    the 


city     in     that    behalf    having     been 
withdrawn.     2.  The  private  property 
of   indiviihials   within   the   limits   of 
the   territory  of  the  city  cannot  be 
subjected    to    the    payment    of    the 
debts    of    the    city,    except    through 
taxation.       The     doctrine     of     some 
of    the    States,    that    such    property 
can    be    reached    directly    on    execu- 
tion   against    the    municipality    has 
not    been    generally    accepted.      3. 
The  power  of  taxation  is  legislative, 
and    cannot    be    exercised    otherwise 
than    under    the    authority    of    the 
legislature.      4.       Taxes    levied    ac- 
cording   to    law    before    the    repeal 
of   the   charter,   other  than  such   aa 
were  levied  in  obedience  to  the  spe- 
cial requirement  of  contracts  entered 
into    under    the    authority    of    law, 
and   such   as  were   levied   under   ju- 
dicial direction  for  the  payment  of 
judgments     recovered     against     the 
city,    cannot    be    collected    through 
tlie    instrumentality    of    a    court    of 
chancery  at  the  instance  of  creditors 
of  the  city.     Such  taxes  can  only  be 
collected    under   authority   from   the 
legislature.      If    no    such    authority 
exists,   the   remedy   is  by   appeal   to 
the     legislature,     which     alone     can 
grant  relief.''     Chief  Justice  Waite 
in    Merriwether   v.    Garrett,   102    U. 
S.    472,    501,    26    L.    ed.    197,    200. 
Upon    the    first    three    propositions 
the     court     was     unanimous.       The 
fourth    was   decided    by   a    majority 
onlv.     See  a   criticism  of  this  case 


1538 


RECEIVERS 


[§306 


collect  those  already  levied.^^  Where  an  order  appointing  a 
receiver  of  a  railroad  company  directed  that  "all  the  books, 
-vouchers  and  papers  touching  the  operation  of  the  railroad," 
and  "all  and  every  part  of  the  properties,  interest,  effects, 
moneys,  receipts,  earnings"  of  the  railroad,  should  be  delivered 
to  the  receiver,  it  was  held,  that  the  order  included  the  com- 
pany's seal  and  all  records  of  its  past  transactions  and  books 
relating  to  its  previous  history.^'  A  receiver  of  a  corporation  is 
entitled  to  remittances  by  its  officers  to  its  general  account 
received  by  a  bank  subsequent  to  his  appointment  and  the  bank 
can  assert  no  lien  against  the  same.^* 

The  receiver  appointed  in  a  suit  to  foreclose  a  mortgage  has 
no  right  to  collect  or  retain  the  income  earned  before  his  appoint- 
ment, although  paid  subsequently  to  such  appointment,^^  unless 
the  mortgage  expressly  pledges  the  rents  and  protits  or  the  mort- 
gagee has  previously  demanded  possession  to  which  he  was  en- 
titled.^^  The  extension  of  a  receivership  under  a  creditor's  suit 
so  as  to  protect  the  rights  of  mortgagees  does  not,  except  under 
similar  circumstances,  give  the  mortgagee  a  right  to  the  rents 
and  profits  previously  earned.^'''  Where  a  lease  required  the 
lessee  to  pay  as  rent  dividends  upon  the  stock  of  the  lessor  a 
receiver  appointed  in  a  foreclosure  suit  acquired  no  right  to 
an  installment  which  fell  due  before  his  appointment.^® 

A  court  has  power  to  appoint  a  receiver  of  the  property 
of   a   foreign    corporation   within   the   State.^^     Where   obedi- 


by  Judge  Baxter  in  Garrett  v.  Mem- 
phis, 5  Perl.  860. 

22  Thompson  v.  Allen  County,  115 
U.   S.  5.50,  558,  29  L.  ed.  472,  475. 

23  American  Const.  Co.  v.  Jackson- 
ville, T.  &  K.  W.  Ey.  Co.,  52  Fed. 
937. 

24  Horn  v.  Pere  Marquette  E.  Co., 
151  Fed.  626,  627.  But  see  Chap- 
man V.  Mills  &  Gibb,  241  Fed.  715. 

25  Hook  V.  Bosworth,  64  Fed.  443 ; 
Chicago  &  A.  E.  E.  Co.  v.  U.  S.  & 
Mex.  Tr.  Co.  C.  C.  A.,  225  Fed. 
Fed.  940;  Ee  Brose,  C.  C.  A.,  254 
Fed.  664;  London-Arizona  Consol. 
Copper  Co.,  v.  Gila  C.  S.  Co.,  257 
Fed.   324;    Ball  v.   Improved   Prop- 


erty  Holding  Co.   of  New  York,  C. 
C.  A.,  220  Fed.  637. 

26  Chicago  &  A.  E.  E.  Co.  v.  U, 
S.  &  Mex.  Tr.  Co.  C.  C.  A.,  225 
Fed.  940;  Ee  Brose,  C.  C.  A., 
254  Fed.  664;  London-Arizona  Con- 
sol.  Copper  Co.  v.  Gila  C.  S.  Co., 
257  Fed.  324.  See  Ball  v.  Improved 
Property  Holding  Co.  of  New  York, 
C.  C.  A.,  220  Fed.  637. 

27  Ibid. 

28  Pennsylvania  Steel  Co.  v.  New 
York  City  Ey.  Co.,  225  Fed.  96. 

29  De  Bemer  v.  Drew,  57  Barb. 
438 ;  Murray  v.  Vanderbilt,  39  Barb. 
140;  Barclay  v.  Quicksilver  Min. 
Co.,  9   Abb.   Pr.,  N.   S.,  283.     See, 


§  306]    PROPERTY  OVER  WHICH  RECEIVERS  MAY  BE  APPOINTED      1339 

ence  to  its  decree  can  be  compelled  by  process  agaiust  the 
person  of  a  defendant,  it  seems  that  a  court  of  equity  may 
appoint  a  receiver  of  property,  real  or  personal,  situated  be- 
yond its  territorial  jurisdiL'tion.^o  The  Judicial  Code  pro- 
vides: "Where  in  any  suit  in  which  a  receiver  shall  be  appointed 
the  land  or  otiier  property  of  a  iixed  character,  the  subject  of 
the  suit,  lies  within  dift'ereut  States  in  the  same  judicial  circuit, 
tlu'  receiver  so  appointed  shall,  upon  giving  bond  as  required 
by  the  court,  innnediately  be  vested  with  full  jurisdiction  and 
control  over  all  the  property,  the  subject  of  the  suit,  lying  or 
being  within  such  circuit;  subject,  however,  to  the  disapproval 
of  such  order,  within  thirty  days  thereaftei-,  by  the  circuit  court 
of  appeals  for  such  circuit,  or  by  a  circuit  judge  thereof,  after 
reasonable  notice  to  adverse  parties  and  an  op])ortnnity  to  be 
heard  upon  the  motion  for  such  disapproval ;  and  subject,  also, 
to  the  tiling  and  entering  in  the  district  court  for  each  district 
of  the  circuit  in  which  any  portion  of  the  property  may  lie  or 
be,  within  ten  days  thereafter,  of  a  duly  certified  copy  of  the 
bill  and  of  the  order  of  appointment.  The  disapproval  of  such 
appointment  within  such  thirty  days,  or  the  failure  to  file  such 
certified  copy  of  the  bill  and  order  of  appointment  within  ten 
days,  as  herein  required,  shall  divest  such  receiver  of  jurisdic- 
tion over  all  such  property  except  that  portion  thereof  lying  or 
being  within  the  State  in  which  the  suit  is  brought.  In  any 
case  coming  within  the  i)rovisions  of  this  section,  in  which  a 
receiver  shall  be  appointed,  process  may  issue  and  be  executed 
within  any  district  of  the  circuit  in  the  same  manner  and  to  the 
same  extent  as  if  the  property  were  wholly  within  the  same 
district ;  but  orders  atT'ecting  such  property  shall  be  entered  of 
record  in  each  district  in  which  the  property  affected  may  lie 


also,  s.  c,  6  Lans.  25;  Redmond 
V.  Hoge,  ;{  Hun  (N.  Y.)  171;  Popi.er 
V.  Supreme  Council,  61  App.  Div. 
(N.  Y.)  405;  Rousena  v.  Manu- 
facturing &  Selling  Co.,  99  App, 
Div.  (N.  Y.)   214. 

30  Memphis  Sav.  Bank  v.  Hou- 
chens,  C.  C,  A.,  115  Fed.  9G;  Stew- 
art V.  Laberee,  C.  C.  A.,  185  Fed. 
471.  The  English  Court  of  Chan- 
cery    lias     appointed     receivers     of 


])rojierty  in  India,  Logan  v.  Prince 
of  (_'oorg,  Seton  on  Decrees,  5th  ed., 
flSl  ;  Keys  v.  Keys,  1  Beav,  425; 
China,  Iloulditeh  v,  Donegal,  8 
Bligh  N,  S.  301;  Italy,  Hinton  v. 
Gain,  24  L.  J.  Ch.  121;  New  South 
Wales,  Fnderwood  v.  Frost,  Seton 
on  Decrees,  5th  ed,,  681;  Canada, 
Tyler  v.  Tyler,  Seton  on  Decrees, 
5th  ed.,  682;  the  West  Indies,  Bun- 
bury  v.  Bunbury,  1  Beav,  318,  331. 


1540 


RECEIVERS 


[§306 


or  be.  "^^  It  has  been  held  that  this  authorizes  the  Circuit 
Judge  or  the  Circuit  Court  of  Appeals  not  to  disapprove  the 
appointment  but  to  disapprove  only  the  receiver's  control  of 
property  outside  of  the  district  in  which  he  was  appointed.^^  A 
proceeding  to  obtain  such  disapproval  was  dismissed  because  of 
the  expiration  of  the  thirty  days.^^  Otherwise,  in  the  absence 
of  a  statute  vesting  the  assets  of  the  corporation  in  him,  it  is 
doubtful  whether  a  receiver  appointed  by  a  court  of  the  defend- 
ant's  domicile  has  any  power  over  assets  in  another  State.^* 


31  Jud.   Code,    §  35,   36   St.    at   L. 
1087. 

32  Ee  Brown,  C.  C.  A.,  242 
Fed.  452,  455,  Per  Aldrich,  J.: 
"We  accept  the  view  that  this  pe- 
tition for  disapproval  is  based  upon 
the  theory  that  the  disapproval  if 
it  results  at  all,  is  to  result  from 
a  finding  in  this  proceeding  that  the 
appointment  in  Massachusetts  was 
procured  by  fraud,  and  we  are  com- 
pelled to  accept  this  view  because 
no  other  ground  is  suggested.  If 
the  statute  should  be  construed  as 
contemplating  outside  disapproval 
upon  such  ground,  a  disapproval 
might  follow,  and  as  a  result  there 
would  be  the  anamalous,  if  not 
grotesque,  legal  situation  of  an  out- 
side collateral  disapproval  on  the 
ground  of  fraud  on  the  original 
decree,  which  would  mean  no  re- 
ceivership in  the  outside  district, 
while  under  tlie  express  provisions 
of  section  56,  the  Massachusetts  end 
of  the  reeciversliip  would  he  oi>era- 
tive.  Such  would  be  an  unworkable 
situation,  and  one  presenting  a  di- 
versity of  management  wiiich  would 
be  disastrous  to  a  corporation 
whose  property  the  subject  of  the 
suit,  lies  within  different  states  in 
the   same   judicial   circuit. 

' '  There  might  be  business  relations 
wliicli  would  justify  disapproval  of 
outside  jurisdiction   and   control   by 


the  original  receiver  or  personal, 
prudential,  and  perhaps  other  rea- 
sons, not  going  to  the  merits  of  the 
question  whether  there  should  be 
a  receivership,  why  the  same  re- 
ceiver should  not  act  in  all  outside 
districts,  and  reasons  which  might 
become  the  ground  not  for  inquiring 
into  the  legality  of  the  original  re- 
ceivership decree,  but  grounds  for 
disapproval  of  its  outside  operative- 
ness. 

' '  While  the  scope  or  the  extent 
of  the  territorial  operativeness  of 
a  receivership  appointment  under 
section  56. in  one  district  of  a  cir- 
cuit, where  the  property  lies  within 
different  states  in  the  same  judicial 
circuit,  is  made  subject  to  the  dis- 
approval of  a  Circuit  Judge  and 
of  Circuit  Courts  of  Appeals,  it  is 
clear  that  the  plain  adequate,  and 
sole  intended  review  of  the  legality 
of  the  receivership  decree  is  by  ap- 
peal by  the  aggrieved  party  under 
section  129  of  the  Judicial  Code 
direct  from  the  court  making  the 
order  to  the  Circuit  Court  of  Appeal 
for  the  circuit. ' ' 

S3Ee  Brown,  C.  C.  A.,  242  Fed. 
452. 

34Keatley  v.  Furey,  226  U.  S. 
399,  403,  404,  57  L.  ed.  — ;  Chip- 
man  V.  Manufacturers'  Nat.  Bank, 
156  Mass.   147,  148,  149. 


§  ;^07] 


POWERS    OP    RECEIVERS 


1541 


It  has  been  held  that  where  a  State  is  divided  into  several 
districts  and  the  statutes  permit  process  in  one  to  be  served  iu 
another,  a  receiver  appointed  in  one  district  has  power  over 
all  property  in  the  State.^s  Until  au  ancillary  appoint- 
ment has  been  made  a  receiver  has  no  power  over  property  in 
another  Circuit  except  by  the  comity  of  the  court  there  held.^" 
It  has  ])een  held  that  the  title  of  a  receiver  dates  from  the  time 
of  his  ai)])ointment  and  llic  filing  of  the  same  in  the  clerk's 
office,  cutting  off  all  rights  or  liens  that  accrued  between  then 
and  the  time  when  the  order  was  transcribed  by  the  clerk  and 
tlie  bond  filed ;37  but  that  it  does  not. relate  back  to  the  time 
when  the  order  was  signed.^® 

§  307.  Powers  of  receivers  in  general.  The  powers  of  a  re- 
ceiver, in  the  absence  of  any  special  authority  given  in  the  order 
for  his  appointment,  are  very  limited.  He  can  take  possession 
of  the  property  which  he  is  appointed  to  receive.^  If  any  of 
it  is  land  under  lease,  he  can  accept  attornment  and  payment 
of  rent  and  arrears  of  rent  from  the  tenants.^  He  can  give 
notice  to  quit  to  tenants  from  year  to  year;^  and  in  States 
where  the  remedy  by  distress  still  exists,  he  may  distrain  for 
rents  not  more  than  one  year  in  arrear.*  He  may  also  pay  out 
small  sums  of  money  in  customary  repairs  of  the  property  which 
he  holds  in  trust,^  and  insure  it  against  fire.^     He  may  occupy 


35  Tlovn  V.  Pere  Marquette  R.  Co., 
l.'il  Fed.  62G,  631. 

36  Central  Tr.  Co.  v.  Texas  &  St, 
L.  Ry.  Co.,  22  Fed.  135;  Atkins  v. 
Wabasli,  St.  L.  &  P.  Ry.  Co.,  29 
Fed.  IGl  ;  Mercantile  Tr.  Co.  v. 
Kanawha  &  0.  Ry.  Co.,  .39  Fed.  337; 
Farmers'  L.  &  Tr.  Co.  v.  No.  Pac. 
R.  Co.,  69  Fed.  871;  Kirker  v. 
Owinffs,  C.  C.  A.,  98  Fed.  499; 
Greene  v.  Star  C.  &  P.  Car  Co.,  99 
Fed.  6.56;  Morrill  v.  Am.  Reserve 
Bond.  Co.,  151  Fed.  305.  Supra, 
§  93,  infra,  §§  304,  306.  For  cases 
wliere  foreign  receivers  have  been 
allowed  to  eoUeet  domestic  assets 
without  ancillary  apiiointnicnts,  see 
Farley  v.  Talbee,  55  Fed.  892;  su- 
pra,  §  93,  infra,   §  311. 

Fed.  Prac.  Vol.  11—27 


37  Horn  v.  Pere  Marquette  R.  Co., 
151    Fed.    626,    627. 

38  Wilcox  V.  National  Shoe  & 
Leather  Bank,  67  App.  Div.  466. 

§307.  IDanioll's  Ch.  Pr.  (2d 
Am.  ed.)    1987,  1988. 

2  Codrington  v.  .lohnstone,  1  Beav. 
520;  McDowell  v.  White,  11  H.  L. 
C.  570. 

8  Doe  v.  Reed,  12  East,  57,  59. 

4  Pitt  v.  Snowden,  3  Atk.  750; 
Brandon  v.  Brandon,  5  Madd.  473; 
Davis  V.  Gray,  16  Wall.  203,  218, 
21    L.  ed.  447,  452. 

5  Atty.  Oen.  v.  Vigor,  11  Ves. 
563;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1990. 

6  Thompson  v.  Phoenix  Ins,  Co., 
136  U.   S.  287,  293,  294,  34   L.  ed. 


1542 


RECEIVERS 


[§307 


leased  property  for  a  reasonable  time  until  he  has  sufficient 
information  to  enable  him  to  determine  whether  to  retain  or 
abandon  the  lease,'  but  not,  it  has  been  held,  when  the  landlord 
was  entitled  to  possession  before  his  appointment.^  Beyond 
this,  he  can  do  nothing  without  express  authority  of  the  court.® 
He  cannot  sue  to  recover  debts  or  other  property  belonging  to 
the  estate,^**  nor  even,  it  seems,  defend  suits  or  actions  brought 
against  him,"  nor  spend  any  money  whatever  which  belongs  to 
the  estate,  except  such  very  small  sums  as  are  above  referred 
to,i2  without  an  order  authorizing  him  to  do  so,  made  at  or  sub- 
sequent to  his  appointment.  If,  however,  he  does  any  of  these 
things  without  leave  and  the  court  determines  that  the  money 
thus  expended  has  been  beneficial  to  the  estate,  his  expenditures 
for  that  purpose  may  be  allowed  him.^^  Otherwise,  he  must 
make  good  all  loss  thereby  occasioned.^*  It  seems  that  an  un- 
authorized contract  made  by  him  with  a  stranger  may  be  ratified 
by  an  order  of  the  court  made  before  the  stranger  has  given 
notice  of  his  intention  to  abandon  it.^^  A  fire  insurance  com- 
pany which  has  received  a  premium  from  a  receiver  cannot  in 
an  action  on  the  policy  dispute  his  authority  to  insure  the  prop- 
erty ;  ^^  but  it  has  been  held  that  the  holder  of  a  note  assigned 
to  him  by  receivers  after  it  was  due,  could  not  recover  its  amount 
unless  he  proved  that  the  court  had  authorized  the  assignment." 


408,  411,  412;  Brown  v.  Hazlehurst, 
54  Md.  26,  28. 

7  Primos  Chemical  Co.  v.  Fulton 
Steel  Corporation,  254  Fed.  454, 
infra,   §    313. 

SOdell  V.  H.  Batterman  Co.,  C. 
C.  A.,  223  Fed.  292. 

9  Davis  V.  Gray,  16  Wall.  203, 
218,  21  L.  ed.  447,  452;  Smith  v. 
McCullough,  104  U.  S.  25,  29,  26 
L.  ed.  637,  639. 

10  Wynne  v.  Lord  Newborongh,  1 
Ves.  Jr.  164;  s.  c.  Brown,  Ch.  C. 
88;  Green  v.  Winter,  1  J.  Ch.  (N. 
Y.)    60. 

11  Swaby  v.  Dickon,  5  Sim.  629. 

12  Atty.  Gen.  v.  Yigor,  11  Ves. 
563. 

13  Tempest   v.   Ord,   2   Meriv.   55 ; 


Blunt  V.  Clitherow,  6  Ves.  799; 
Thompson  v.  Phoenix  Ins.  Co.,  136 
U.  S.  287,  294,  34  L.  ed.  408,  412. 

14  Atty.  Gen.  v.  Vigor,  11  Ves. 
563. 

15  Koontz  V.  Northern  Bank,  16 
Wall.  196,  21  L.  ed.  465;  Smith 
V.  McCullough,  104  U.  S.  25,  29,  26 
L.  ed.  637,  639.  Cf.  Girard  L.  A. 
&  Tr.  Co.  V.  Cooper,  51  Fed.  332. 
See  Ee  Hollingsworth  &  Whitney 
Co.,  C.  C.  A.,  242  Fed.  253;  Primos 
Chemical  Co.  v.  Fulton  Steel  Cor- 
poration, 254  Fed.  454. 

16  Thompson  v.  Phooenix  Ins.  Co., 
136  U.  S.  287,  294,  295,  34  L.  ed., 
408,  412. 

17  The  Clara  A.  M  'Intyre,  94  Fed. 
552. 


^  307]  POWERS    OF    RECEIVERS  lo-t'i 

It  seems  that  an   order  giving  a  receiver  authority   to   si-ll 
carries  with  it  authority  to  execute  and  deliver  to  the  purchaser 
a  deed;"  but  if  not,  a  subsecjuent  confirmation  by  the  court  of 
a  sale  irregularly  made  validates   liom   that  time  a  deed  pre- 
viously executed  by  the  receiver. ^^     When  a  receiver  who  has 
been  ordered  to  sell  the  property  on  a  specified  day  was  re- 
strained from  making  a  sale  it  was  held  that  a  sale  subsequently 
made  after  the  dissolution  of  the  injunction  l)Ut  no  other  order 
upon  the  subject  nor  second  notice  of  sale  was  a  nullity.'^"    Under 
any  order  authorizing  the  receiver  of  a  bank  to  sell  at  a  private 
sale  all  assets  which  were  in  his  judgment  bad  and  doubtful, 
'"consisting  of  bills   receivable,   judgments,   overdrafts,   stocks, 
bonds,  warrants,  securities,  assessments  upon  the  stockholders 
of  said  bank,  and  other  personal  and  chattel  property  and  evi- 
dence of  indebtedness,  for  cash,"'  it  was  held  that  this  did  not 
give  him  power  to  sell  a  contract  with  the  State  for  the  purchase 
of  tide  lands  to  which  as  owner  of  the  adjacent  upland  the  bank 
was  entitled.2i     It  has  been  held  that  a  "purchaser  under  a 
deed  from  a  receiver  is  not  bound  to  examine  all  tlie  proceedings 
in  the  case  in  which  the  receiver  is  appointed.      It  is  sufficient 
for  him  to  see  that  there  is  a  suit  in  equity,  or  was  one,  in  which 
the  court  appointed  a  receiver  of  property;  that  such  receiver 
was  authorized  by  the  courts  to  sell  the  property;  that  a  sale 
was  made  under  such  authority,  that  the  sale  was  confirmed  by 
the  court ;  and  that  the  deed  accurately  recites  the  property  or 
interest  thus  sold.     If  the  title  of  the  property  was  vested  in 
the  receiver  by  an  order  of  the  court,  it  would  in  that  case  pass 
to  the   purchaser.      He   is   not   bound   to   inciuirc   whether   any 
errors  intervened   in  the  action  of  the  court,   or   irregularities 
were  committed  by  tlie  receiver  in  the  sale,  any  more  than  a 
purchaser  under  execution  upon  a  judgment   is  bound  to  look 
into  the  errors  and  irregularities  of  a  court  on  the  trial  of  the 
case,  or  of  the  officer  in  enforcing  its  process.  "^2 

Unless  the  court  has  directed  that  the  sale  be  made  free  of 

ISKooiitz    V.    Northern    Bank,    16  21  Baker    v.    Schofickl,    221    Fed. 

Wall.  196,  201,  21  L.  ed.  465,  468.  ::22.    323. 

19  Koontz    V.    Northern    Bank,    16  22  Mr.  Justice  Field  in  Koontz  v. 
Wall.  196,  21  L.  ed.  465.  Northern   Bank,   16  Wall.   196,   202, 

20  Dull  V.  Le  Fevre,  222  Fed.  471.  21   L.  ed.  465,  468. 


1544 


RECEIVERS 


[§  307 


incumbrances,  as  is  frequently  done  in  bankruptc^-,^^  ^i^g  p^r- 
chaser  at  a  receiver's  sale  takes  the  property  subject  to  all  para- 
mount liens. ^* 

The  court  may  authorize  a  receiver  to  complete  the  construc- 
tion of  a  railroad,^^  or  other  public  work,^^  under  a  contract 
with  the  person  over  Avhose  estate  he  was  appointed,  and,  even 
it  has  been  held  in  a  case  of  a  corporation  not  engaged  in  public 
service,^'  to  continue  for  a  limited  time  the  defendant's  bus- 
iness.^® This  power  should  be  exercised  with  great  care  and 
caution.29  It  is  the  proper  practice  to  serve  upon  the  mort- 
gagee notice  of  the  application  for  such  authority,  which  ^should 
rarely  be  given  when  the  mortgagee  objects.^"  He  may  be  au- 
thorized to  borrow  money  and  to  issue  as  security  receiver's 
certificates  for  that  purpose.^^ 

An  order  authorizing  a  receiver  to  make  a  contract  is  con- 


23  See   Chapter   XXXIV,  infra. 

24  Black  V.  Manhattan  Trust  Co., 
213  Fed.  692. 

26  Smith  v.  MeCuUough,  104  U. 
S.  25,  29,  26  L.  ed.  637,  639;  La 
Crosse  Eailroad  Bridge,  2  Dillon, 
465. 

26  Patterson  v.  Patterson,  182 
Fed.  952.  The  receiver  of  a  water 
company  may  be  authorized  to  in- 
crease his  charges  for  water  when 
they  are  not  limited  by  statute  or 
ordinance.  C.  H.  Venner  Co.  v.  TJr- 
bana  Waterworks,  174  Fed.  348. 
When  he  furnished  water  to  a  city 
for  the  use  of  the  fire  department, 
without  a  contract  as  to  the  price, 
it  was  held  that  he  should  be  paid 
a  fair  compensation  for  the  service, 
a  just  proportion  of  the  operating 
expenses,  taxes  and  costs  of  admin- 
istration, and  of  a  just  and  reason- 
able return  on  the  cost  of  repro- 
ducing the  plant  and  its  growing 
value.    Ibid. 

27  First     Nat.     Bank     v.     Detroit 
Trust   Co.,  C.   C.   A.,  248  Fed.   16; 


Buttervvorth  v.  Degnon  Contract 
Co.,  C.  C.  A.,  214  Fed.  772. 

28  Gay  V.  Hudson  Eiver  El. 
Power  Co.,  173  Fed.  1003;  Butter- 
worth    V.    Degnon    Contract    Co.,    C. 

C.  A.,  214  Fed.  772.  Where 
authority  was  given  to  contract  to 
supply  electrical  power  for  a  term 
of  five  years.  An  order  directing 
that  receiver  of  a  hotel  to  carry  on 
and  manage  the  business  of  the 
hotel  as  previously  carried  on,  was 
held  to  authorize  him  to  incur  the 
customary  debts  in  carrying  on  that 
business.    Cate  v.  Woodbury,  3  App. 

D.  C.  60;  s.  C,  Cake  v.  Mohun, 
164  U.  S.  311,  41  L.  ed.  447. 

29  First  Nat.  Bank  v.  Detroit 
Trust  Co.,  C.  C.  A.,  248  Fed.  16. 

30  Kennedy  v.  E.  E.  Co.,  5  Dill 
592,  Fed.  Cas.  No.  7,707;  Dempsey 
v.  Baltimore  &  O.  E.  Co.  219  Fed. 
619,  620;  Fidelity  Title  &  Tr.  Co. 
V.  Kansas  National  Gas  Co.,  219 
Fed.  614. 

31  Kennedy  v.  St.  Paul  &  P.  Ey. 
Co.,  2  Dillon,  448,  see   §309  infra. 


§307] 


POWERS    OF    RECEIVERS 


1545 


strued  strictly  in  favor  of  the  estate.^"  After  the  execution 
of  a  contract  has  been  authorized  by  the  court,  the  order  will 
not  ordinarily  be  revoked  except  in  case  of  fraud.^^  ^  receiver 
cannot  accomplish  by  estoppel  or  waiver  what  he  has  no  power 
to  do  directly.^^  Without  aulhorily  from  the  court  a  receiver 
cannot  by  receipt  of  rent  or  othei-wise  bind  the  parties  or  a 
subsequent  purchaser  to  recognize  a  lease.^* 

The  court  may,  however,  either  in  the  original  order  of 
appointment  or  subsequently,  give  a  receiver  very  extensive 
powers.  It  is  usual  in  the  order  appointing  a  receiver  to  give 
hira  power  to  bring  and  defend  suits  or  actions  affecting  the 
estate.  Authority  to  appear  in  and  defend  a  suit  gives  the 
receiver  power  to  execute  a  forthcoming  bond  or  such  other 
bond  as  is  required  in  the  litigation.^c  He  may  be  author- 
ized to  perform  an  agreement  for  the  settlement  of  a  death 
claim  made  by  the  corporation  before  his  appointment.^'''  Other 
and  much  more  extensive  authority,  such  as  to  borrow  money 
needed  for  the  proper  administration  of  his  trust,  and  issue  as 
security  therefor  certificates  giving  their  owner  a  first  lien  upon 
the  estate ;  ^^  to  contract  for  the  construction  of  a  bridge ;  ^^  to 
levy  an  assessment  upon  stockholders;*"  to  pay  a  faithful  and 
deserving  employee  his  wages  during  the  time  that  he  is  kept 
from  Avork  by  the  result  of  an  injury  received  while  at   work 


32  Farmers'  L.  &  T.  R.  Co.  v, 
Logansport,  C.  &  S.  W.  Ey.  Co., 
4  Fed.  184. 

33  Wabash,  Rt.  L.  &  P.  Ry.  Co. 
V.  Central  Trust  Co.,  22  Fed.  269. 
But  see  Weeks  v.  Weeks,  106  N. 
Y.  626. 

34  Van  Dyck  v.  McQuade,  85  N. 
Y.  616;  Farmers'  L.  &  Tr.  Co.  v, 
Chicago  &  A.  Ry.  Co.,  44  Fed.  653, 
659.  But  see  Central  Tr.  Co.  v. 
Ohio  Central  R.  Co.,  23  Fed.  306; 
Armstrong  v.  Armstrong,  L.  R.  12 
Eq.  614;  Koontz  v.  Northern  Bank, 
16  Wall.  196,  21  L.  ed.  465;  Stan- 
ton V.  Ala.  &  C.  R.  Co.,  31  Fed.  585. 

36  Farmers'  L.  &  Tr.  Co.  v.  Chi- 
cago &  A.  Ry.  Co.,  44  Fed.  653,  659. 
See  infra,   §§311,  313. 


36  United  States  F.  &  G.  Co.  v. 
I'irst  Nat.  Bank,  C.  C.  A.,  239  Fed. 
227. 

Blackwell,  C.  C.  A., 


37  Harmon  v. 
2:'.2  Fed.  440. 

38  Wallace    v 
146,    24    L.    ed 


Loomis,    97    U.    S. 

895;  infra,  §309. 
An  order  authorizing  a  receiver  to 
borrow  money  to  expend  in  building 
an  unfinished  portion  of  a  railroad 
does  not  authorize  him  to  contract 
for  municipal  aid  in  such  construc- 
tion. Smith  V.  McCullough,  104  U. 
S.  25,  29,  26  L.  ed.  637,  639. 

39  La    Crosse    Railroad    Bridge,    2 
Dill.  465. 

40  Kirkpatrick  v.  Am.  Alkali  Co., 
135  Fed.  230. 


1546 


RECEIVERS 


[§307 


for  the  receiver,  without  contributory  negligence,  but  for  which 
the  receiver  is  not  responsible ;  "  and  in  Ireland,  to  spend  money 
in  relieving  and  giving  employment  to  poor  tenants,  for  the 
reason  that  thej'  may  be  enabled  in  the  future  to  pay  their  rent 
more  regularly,*^  have  been  given  to  receivers.  The  order  ap- 
pointing a  receiver  of  land  usually  contains  a  clause  empower- 
ing him  to  set  and  let  the  same.*^  Even  with  this,  it  seems  that 
without  special  authoritj-  he  cannot  let  any  part  thereof  so  as 
to  bind  the  estate  for  a  longer  period  of  time  than  is  authorized 
by  the  Statute  of  Frauds,**  but  that  a  lease  made  for  a  longer 
time  would  bind  a  tenant  who  had  accepted  it.*^  It  is  the  safer 
practice  for  the  receiver  not  to  employ  a  rent  collector  until 
he  has  authority  from  the  court. *^  Where  the  board  of  directors 
may  assess  the  stockholders,  the  receiver  may  be  empowered  to 
do  the  .same.*''^ 

Ordinarily  a  receiver  has  not  the  right  to  use  a  patent  un- 
der a  license  to  an  individual  over  whose  estate  he  was  ap- 
pointed.*^  Where  the  license  was  given  to  a  co-partnership 
it  enures  to  the  benefit  of  the  receiver  of  the  firm.*^  It  has 
been  held  that  the  same  rule  applies  to  a  receiver  of  a  corpora- 
tion.^'' A  receiver  of  a  dissolved  corporation  may  sustain  a  bill 
to  compel  the  assignment  to  him  of  a  patent  by  the  legal  owner 
when  the  corporation  had  the  equitable  title  to  the  same.^^  The 
court  may  authorize  a  receiver  of  a  corporation  to  make  any 
contract  within  the  corporate  powers,  provided,  at  least,  that 
it  does  not  bind  the  property  after  the  receivership  is  termi- 
nated.^^ 


41  Missouri  Pac.  Ry.  Co.  v.  Texas 
&  P.  Ry.  Co.,  33  Fed.  701;  s.  c, 
Blaener,  Intervenor,  41  Fed.  319, 
limited  by  Thomas  v.  East  Tenn.,  V. 
&  G.  Ry.  Co.,  60  Fed.  7.  But  see 
Hoyt  V.  Thompson,  5  N.  Y.  320. 

42  Jackson  v.  Jackson,  2  Hogan, 
238. 

43Danieirs  Ch.  Pr.  (2d  Am.  ed.) 
1989. 

44  Kerr  on  Receivers  (2d  Am. 
ed.)    210,  211. 

45  Dancer  v.  Hastings,  4  Bing.  2 ; 
Kerr  on  Receivers  (2d  Am.  ed.) 
211. 


46  Peters  v.  John  Kress  Brewing 
Co.,  N.  Y.,  Sp.  Tm.,  N.  Y.  Co.  Dec. 
13,   1905. 

47  Maxwell  v.  Akin,  89  Fed.  178. 
48Curran  v.  Craig,  22  Fed.  101. 
49  Montrose    v.    Mabie,    30     Fed. 

234. 

60  Schmidt  v.  Central  Foundry 
Co.,  218  Fed.  466. 

61  McCulloh  V.  Association  Hor- 
logerie  Suisse,  4.5  Fed.  479. 

52  South  Carolina  &  G.  R.  Co.  v. 
Carolina  C.  E.  &  C.  Ry.  Co.,  C.  C. 
A.,  93  Fed.  543,  553. 


JJ308 


POWERS  OP   RAILROAD    KECEINERS 


VA7 


§308.  Powers    of    receivers    of    railroads.     V>ry    extensive 
powers  are  often  granted  to  the  receivers  of  railroads. i    And  in 
a  carefully  considered  opinion,  :\Ir.  Justice  Bradley  said:  "It 
may  be  laid  down  as  a  general  proposition,  that  all  outlays  made 
by  the  receiver  in  good  faitii,   in   the  ordinary   course,  with   a 
view  to  advance  and  promote  the  business  of  the  road,  and  to 
render  it  profitable  and  successful,  are  fairly  within  the  line  of 
discretion  which  is  necessarily  allowed  to  a   receiver  intrusted 
with  the  management  and  operation  of  a  railroad  in  his  hands. 
His  duties,  and   the  discretion   with   which   he   is  invested,  are 
very  different  from  those  of  a  passive  receiver,  appointed  merely 
to  collect  and  hold  moneys  due  on  jtrioi-  transactions,  or  rents 
accruing  from  houses  and  lands.     And  to  such  outlays  iji   or- 
dinary course  may  properly  be  referred,  not  only  the  keeping 
of  the  road,  buildings,  and  i-olling  stock  in  repair,  hut  also  the 
providing  of  such  additional  accommodations,  stock,  and  instru- 
mentalities as  the  necessities  of  the  business  may  require,  always 
referring  to  the  court  or  to  the  master  appointed  in  that  behalf, 
for  advice  and  authority   in  any  matter  of   importance,  which 
may  require  a  considerable  outlay  of  money  in  lump;  and  except 
in  extraordinary   cases,   the  submission   by   the   receiver  of   his 
accounts  to  the  master  at  frequent  intervals,  whereby  the  latter 
may  ascertain  from  time  to  time  the  character  of  the  expendi- 
tures made,  and  disallow  whatever  may  not  meet  with  his  ap- 
proval, will  be  regarded  as  a  sufficient  i-eference  to  the  court 
for  its  ratification  of  the  receiver's  proceedings.      In  extraor- 
dinary cases,   involving  a   large  outlay   of  money,   the  receiver 
should   always  apply   to  the   court    in   advance  and   obtain   his 
authority  for  the  purchase  or  improvement  jiroposed.''^ 


§308.  1  Davis  v.  Gray,  16  Wall. 
203,  219,  220;  Cowdrey  v.  Bailroad 
Co.,  1  Woods,  331,  336.  See  Rail- 
road Rppcivers  in  Federal  Courts, 
hy  Judge  Caldwell,  44  Am.  Law- 
Rev.  161. 

2  Cowdrey  v.  Railroad  Co.,  1 
Woods,  331,  336.  This  language 
lias  been  thus  construed  in  a  case 
in  a  State  court:  "This  rule,  it 
will  he  observed,  simply  jirescribes 
what  exjienditures,  out  of  the  fund 


in  Ills  liands  as  receiver,  tlie  court 
will  recognize  as  legitimate  and 
j>roper  when  the  receiver  comes  to 
account  for  tiie  administration  of 
his  trust,  but  nothing  liere  said 
gives  the  slightest  support  to  the 
notion  that  the  receiver  may,  in 
virtue  of  the  power  of  his  office, 
make  a  contract,  without  tiie  au- 
thority of  tlie  court,  wliieli  will  bind 
the  trust,  or  wliich  the  couit  will 
be    bound    to    recognize    without    n  ■ 


1548  RECEIVERS  [§  308 

It  has  been  held  that  the  receiver  is  not  obliged  to  obtain 
special  authority  from  the  court  to  make  contracts  for  ordinary 
supplies  or   accommodations  needed  for  the   operation   of  the 
railroad ;  such  as  equipment,  repairs,  the  use  of  the  roundhouses 
and  terminals,  and  the  employment  of  an  agent  to  solicit  bus- 
iness and  to  contract  to  transport  goods  over  other  lines  or  by 
connecting  boats ;  ^  and  that  such  contracts,  although  subject  to 
review  by  the  court,  will  not  be  set  aside  unless  the  charges  are 
unreasonable,  unusual,  or  extravagant.     The  receiver   is  justi- 
fied in  paying  claims  for  the  loss  of  freight  upon  proof  by  the 
affidavits  of  the  shippers  without  any  application  to  the  court, 
where  that  is  the  usual  course  of  business  by  railway  and  express 
companies.'*     A  loan  to  a  receiver  whom  the  court  has  not  au- 
thorized to  borrow  money  will  be  denied  priority.^    A  receiver 
cannot  make  a  permanent  traffic  agreement  without  the  authority 
of  the  court.^     It  has  been  held  that  the  court  has  power  to 
authorize  the  receiver  of  a  railroad  "company  under  proceedings 
for  a  foreclosure,  to  ratify  a  contract  previously  made  by  the 
corporation  giving  a  telegraph  company  certain  privileges  upon 
its  road;  and  that  the  contract  thus  ratified  will  be  binding 
upon  purchasers  of  the  railroad  at  a  foreclosure  sale ;  "^  that 
such  a  receiver  may  be  authorized  to  make  such  expenditures 
as  are  necessary  to  render  the  operation  efficient  and  to  perfect 

gard   to   its   necessity   or   propriety.  Co.   v.   Central   E.   of   N.   J.,  35   N. 

A    receiver    may,    undoubtedly,    ap-  J.  Eq.  426,  429.     To  a  similar  effect 

propriate   moneys  in   his   hands   be-  is   Union   Tr.    Co.   v.   111.    Mid.    Ey. 

longing    to    the    trust   to    such    pur-  Co.,  117  U.  S.  434,  29  L.  ed.  963. 

poses,   connected   with  the  trust,   as  3  No.  Pac.  Ey.  Co.  v.  Am.  Trading 

he  may  think  proper,  always  taking  Co.,  195   U.   S.  439,  461,   49  L.  ed. 

the   risk   that   the   court   will   finally  269,    279;    South    Carolina   v.    Porf 

approve   his   action,   but   he   has  no  Eoyal   &   A.   Ey.   Co.,   89   Fed.   565, 

authority  to  bind  the  trust  by  con-  572,  574. 

tract   without   the   authority   of   the  4,  Central  Tr.  Co.  v.  Colorado  Mid. 

court.     Until  his  contracts  are   ap-  Ey.  Co.,  89  Fed.  560,  564. 

proved  or  ratified  by  the  court,  the  5  Union   Tr.   Co.   v.   111.   Mid.  Ey. 

court    is    at    liberty    to    deal    with  Co.,   117   U.   S.  434,  477,   29  L.   ed. 

them    as    to   it   shall   appear    to    be  963,  978;    §309,  infra. 

just,   and   may   either  modify   them  6  Investment  Co.  of  Phila.  v.  Ohio 

or    disregard    them    entirely.      This,  &  N.  W.  Ey.  Co.,  4  Fed.  378. 

in   my   judgment,   is   the   only   safe  7  W.   U.   Tel.   Co.   v.   Atl.   &   Pac. 

rule  which   can  be  adopted."     Van  Tel.  Co.,  7  Biss.  367. 

Fleet,   V.    C,   Lehigh    Coal    &   Nav. 


§308] 


POWKKS    OF    R-\JLKUAI)    RECEIVERS 


15-iO 


the  service,  in  retui-ii  for  which  the  fraiicliises  were  Kiven.*  com- 
plete the  construction  of  a  line  of  railroad,  and  to  borrow  money 
for  that  purpose,'  to  purchase  a  lien  upon  part  of  its  property, 
to  assume  a  lease  of  a  connecting  railway,^"  even  without  notice 


8  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  165  Fed.  455.  This 
includes  the  completion  of  car 
houses,  which  were  being  rebuilt 
and  enlarg:ed  on  some  of  the  lines 
held  by  the  receiver.  Pennsylvania 
Steel  Co.  V.  N.  Y.  City  Ry.  Co.,  C. 
C.  A.,  180  Fed.  704,  where  it  was 
said  that  the  apportionment  of  the 
expense  between  the  different  mort- 
gagees should  be  determined  on  a 
llnal  accounting. 

9  Kennedy  v.  St.  P.  &  P.  Ey.  Co., 
2  Dill.  448 ;  infra,  §  309.  See  also 
Smith  V.  McCullough,  104  U.  S.  25; 
Allen  V.  D.  &  W.  R.  Co.,  3  Woods, 
31  fi.  In  such  a  case,  notice  to  the 
lienors  should  be  given.  Bibber- 
White  Co.  v.  White  River  Val.  El. 
R.  Co.,  C.  C.  A.,  115  Fed.  786.  Tt 
has  been  held  that  a  railroad  re- 
ceiver may  be  authorized  to  pledge 
securities  which  are  the  property 
of  the  corporation  as  collateral  for 
a  loan,  and  to  incur  liability  for 
the  expenses  of  a  scheme  to  refund 
the  corporate  indebtedness.  Clarke 
v.  Central  R.  &  B.  Co.,  54  Fed.  556. 

10  Farmers'  L.  &  Tr.  Co.  v.  Bur- 
lington &  S.  W.  Ry.  Co.,  32  Fed. 
805.  See  also  Central  Tr.  Co.  v. 
Wabash,  St.  L.  &  P.  Ry.  Co.,  34 
Fed.  259;  Central  Tr.  Co.  v.  Wa- 
bash, St.  L.  &  P.  Ry.  Co.,  23  Foi. 
863;  Easton  v.  Houston  &  T.  C.  Ry. 
Co.,  38  Fed.  784.  The  rules  which 
should  regulate  a  receivership  of  a 
consolidated  railroad  holding  leased 
lines  with  separate  mortgages  upon 
the  different  branches,  as  well  as  a 
general  mortgage  upon  the  whole 
system,  were  thus  stated  in  an  opin- 


ion of  Judge  Brewer,  delivered  when 
denying  an  application  by  a  receiver 
of  such  a  system  of  railroads  for 
leave  to  reject  such  leased  roads  as 
were  unprofitable:  "This  Wabash 
road  is  composed  of  many  subdivi- 
sions. Wliile  it  is  a  single  corpora- 
tion today,  yet  into  it  have  passed 
many  corporations  and  many  sepa- 
rate railroad  properties.  In  admin- 
istering such  a  consolidated  prop- 
erty, the  court  must  look  at,  not 
merely  the  interest  of  the  mort- 
gagee in  this  general  mortgage,  or 
of  the  mortgagor  as  a  single  entity 
or  corporation,  but  also  the  sepa- 
rate and  sometimes  conflicting  in- 
terests of  the  various  subdivisions 
and  their  respective  incumbrances, 
and,  back  of  all  that,  the  duty 
which  every  railroad  corporation 
owes  to  the  public.  And  that  duty 
is  not  limited  to  the  operation  of 
merely  that  particular  fragment  of 
a  road  which  is  pecuniarily  profit- 
able in  its  operations,  but  it  ex- 
tends to  the  road  as  an  entirety, 
and  to  all  its  branches, — all  its 
parts;  differing  in  that  particular 
from  the  duty  which  would  rest 
upon  the  court  if  it  had  simply 
taken  possession  of  property  used 
for  private  purposes,  manufactur- 
ing or  otherwise,  where  the  single 
question  might  well  be  said  to  be 
one  of  pecuniary  profit.  This  Wa- 
bash road,  as  a  system,  was  in  oper- 
ation, a  going  concern,  from  one 
end  to  the  other;  as  such,  discharg- 
ing its  duties  as  best  it  could  to  its 
various  creditors.  This  court,  at 
the  instance  of  the  corporation,  and 


1550 


RECEIVERS 


[§308 


to  preserve  the  integrity  of  the  sys- 
tem, took  possession  of  it  by  its 
receivers.  It  took  possession  of  it 
as  a  going  concern,  and  so  far  as 
is  reasonable  and  practicable,  it 
should  continue  it  as  a  going  con- 
cern until  it  surrenders  it  to  who- 
ever may  be  the  purchaser  or  fu- 
ture holders  of  it.  With  that 
preface,  and  calling  these  separate 
branches  which  have  passed  into 
this  consolidated  road,  subdivisions, 
since  some  have  passed  in  by  way 
of  lease  and  others  by  way  of  con 
solidation,  subject  to  separate  mort 
gages,  we  pass  orders  substantially 
as  follows:  The  first  is  one  which 
has  already  been  entered,  and  we 
simply  emphasize  it  by  repeating  it, 
that  subdivisional  accounts  must  be 
kept  separately.  That  was  an  or- 
der passed  by  Brother  Treat  at  the 
very  outset  of  this  receivership,  in 
order  that  the  particular  equities 
of  each  one  of  these  divisions,  as 
between  themselves,  might  be  as- 
certained. 2.  Where  any  subdivi 
sion  earns  a  surplus  over  expenses, 
the  rental  or  subdivisional  interest 
will  be  paid  to  the  extent  of  the 
surplus,  and  only  to  the  extent  of 
the  surplus.  Any  part  diversion  of 
such  surplus  for  general  operating 
expenses  will  be  made  good  at  once, 
and,  if  need  be,  by  the  issue  of 
receiver 's  certificates.  *  *  *  3. 
Where  a  subdivision  earns  no  sur- 
plus,— simply  pays  operating  ex- 
penses,— no  rental  or  subdivisional 
interest  will  be  paid.  If  the  lessor 
or  the  subdivisional  mortgagee  de- 
sires possession  or  foreclosure  he 
may  proceed  at  once  to  assert  his 
rights.  While  the  court  will  con- 
tinue to  operate  such  subdivision 
until  some  application  be  made,  yet 


the  right  of  a  lessor  or  mortgagee 
whose  rent  or  interest  is  unpaid  to 
insist  upon  possession  or  foreclo- 
sure will  be  promptly  recognized. 
That,  it  is  true,  may  work  a  dis- 
ruption of  the  system,  as  evidenced 
by  the  movement  just  made  in  re- 
spect to  this  Cairo  division;  but 
the  jjroceeding  for  disruption  will 
come  from  the  subdivisions.  The 
court  is  not  sloughing  off  branches 
tearing  the  system  in  two;  but  the 
disruption,  if  it  comes,  will  come 
from  those  who  seek  separation,  and 
have  a  legal  right  so  to  do."  But 
see  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  By.  Co.,  C.  C.  A.,  180  Fed.  704. 
"4.  Where  a  subdivision  not  only 
earns  no  surplus  but  fails  to  pay 
operating  expenses,  as  in  the  St. 
Joseph  &  St.  Louis  branches,  the  op- 
eration of  the  subdivision  will  be 
continued,  but  the  extent  of  that  op- 
eration will  be  reduced  with  an 
unsparing  though  a  discriminating 
hand;  that  is,  if  a  subdivision  does 
not  earn  operating  expenses,  and 
the  receivers  are  running  two  trains 
a  day,  tlien  lop  one  of  them  off.  If 
they  are  running  one  train  a  day, 
and  still  it  does  not  pay,  then  run 
one  train  in  two  days.  While  the 
court  will  endeavor  to  keep  that 
subdivision  in  operation,  it  will 
make  the  burden  of  it  to  the  con- 
solidated corporation,  and  to  all  the 
other  interests  put  into  that  con- 
solidated corporation,  a  minimum." 
Treat,  J.,  concurring,  in  Central  Tr. 
Co.  V.  Wabash,  St.  L.  &  P.  Ey.  Co., 
23  Fed.  863,  86.5-867.  In  the  same 
case,  Judge  Woods  subsequently  re- 
jected a  claim  to  a  preference  over 
the  mortgage  for  rents  accrued 
pending  a  receivership,  in  a  suit  in 
which  the   mortgagee  had  been  de- 


§308] 


TOWERS   OF    RAII.HOAI)    RECEIVERS 


l.")! 


to  the  mortgagee, ^^  and  to  lease  a  railway  for  a  fixed  term ; 
although,  in  such  a  ease,  a  provision  for  a  cancellation  of  the 
lease  at  the  option  of  the  court  should  ordinarily  he  inserted. ^^ 
Where  the  lease  contains  no  such  clause,  the  lessee  is  entitled  to 
compensation  for  the  unexpired  term,  if,  hefore  his  lease  expires, 
he  is  ousted  from  possession  by  the  court. ^^  Receivers  for  the 
lessee  of  a  number  of  connecting  street  railroads  in  the  .same 
suit  under  leases  from  ditt'erent  lessors  were  authorized  to  use 
the  income  for  the  entire  system  for  the  purpose  of  oi)eratiiig 
and  maintaining  the  same  as  a  unit,  notwithstanding  the  pio- 
visions  of  mortgages  upon  parts  of  the  property.^*  It  has  been 
held  that  receivers  should  not  be  authorized  to  lease  street  rail- 
Vaj'^s  to  a  new  corporation,  with  authority  to  the  lessee  to  issue 
bonds  secured  by  a  mortgage  witli  priority  over  mortgages 
previously  existing,  in  order  to  raise  the  funds  for  the  improve- 
ment of  the  property,  under  the  direction  of  a  board  of  engineers 
representing  the  city,  and  not  the  original  ow^ners  of  the  proj)- 
erty ;  ^^  but,  in  the  same  case  the  Circuit  Court  subsequently 
authorized  the  receivers  to  deliver  the  street  railways  to  the 
reorganized  corporation  before  the  foreclosui-e  sale.^*'  Without 
authority  from  tlie  court  a  receiver  of  a  railroad  cannot  lease 
offices  for  a  term  of  four  years  ;^''^  nor  it  seems  for  any  time.^' 
Such  authoritj'  is  not  included  in  the  grant  of  power  to  make 
all  contracts  that  may  be  necessary  in  carrying  on  the  business 
of  the  railroad,^*  nor  is  the  lease  ratified  by  the  approval  of 
monthly  accounts  showing  payment  of  rent  under  the  sanie.^o 


nied  the  extension  of  the  receiver- 
ship for  his  benefit.  Central  Tr. 
Co.  V.  Wabash,  St.  L.  &  P.  Ry.  Co., 
46  Fed.  26.  But  see  Mercantile  Tr. 
Co.  V.  Farmers'  L.  &  Tr.  Co.,  C.  C. 
A.,  81  Fed.  254;  supra,  §305.  Cf. 
infra,    §  321. 

11  Mercantile  Tr.  Co.  v.  Mo.,  K. 
&   T.  Ry.   Co.,  41   Fed.  8,   11,   12. 

12  Farmers'  L.  &  Tr.  Co.  v.  Eaton, 
C.  C.  A.,  114  Fed.  14. 

13  Ibid. 

14  Barber  A.  P.  Co.  v.  Forty-Sec- 
ond St.,  M.  &  St.  N.  Ave.  Ry.  Co., 
C.  C.  A.,  180  Fed.  648. 

16  Merchants'  L.  &  Tr.  Co.  v.  Chi- 


cago  Rys.    Co.,  C.  C.    A.,    l.')8   Fed. 
923. 

16  Guaranty  Tr.  Co.  v,  Chicago 
Union   Traction  Co.,  158  Fed.  1015. 

17  Chicago  Deposit  Vault  Ry.  Co. 
V.  McNulta,  153  U.  S.  554,  38  L. 
ed.  819. 

18  Branian  v.  Farmers '  L.  &  Tr. 
Co.,  C.  C.  A.,  114  Fed.  18.  21.  The 
same  case  considers  the  proper  dis- 
bursements of  a  receiver  for  hotel 
bills. 

19  Chicago  Deposit  Vault  Ry.  Co. 
V.  McXulta,  153  U.  S.  554,  38  L.  ed. 
819. 

20  Ibid. 


1552 


RECEIVERS 


[§309 


§309.  Receivers'  certificates.  The  power  of  courts  of  equity 
to  issue  receivers'  certificates  is  of  modern  origin,^  has  been 
severely  criticized,^  and  should  be  exercised  with  great  reluc- 
tance.^ Where  it  is  absolutely  necessary  to  raise  money  for  the 
preservation  of  the  property  in  his  hands,  a  receiver  may  be 
empowered  by  the  court  to  issue  certificates  which  give  their 
owners  a  lien  upon  the  property  prior  to  that  held  b}'  any  per- 
sons except  those  whose  claims  are  paramount  to  the  rights  of 
the  parties  to  the  suit.*  Such  certificates  may  have  a  priority 
over  a  vendor's  lien  upon  rails. ^ 

Receivers'  certificates  are  usually  issued  only  in  creditors' 
suits  ^  and  suits  for  the  foreclosure  of  railroad  or  telegraph  mort- 
gages, or  mortgages  of  other  public  corporations,  in  order  to 
raise  money  for  repairs,  or  to  defray  operating  expenses,'  or 


§  309.  1  The  first  case  seems  to 
have  been  Meyer  v.  Johnson  (1875), 
53  Ala.  237;  Coe  v.  N.  J.  Mid.  Ky. 
Co.,  27  N.  J.  Eq.  37;  Hoover  v. 
Montclair  &  G.  L.  Ey.  Co.,  29  N.  J. 
Eq.  4;  Jerome  v.  McCarter,  94  U. 
S.  734,  24  L.  ed.  136;  Wallace  v. 
Loomis,  97  U.  S.  146,  24  L.  ed.  895. 

2  Barton  v.  Barbour,  104  U.  S. 
126,  138,  26  L.  ed.  672,  678;  Credit 
Co.  v.  Arkansas  Cent.  R.  Co.,  15 
Fed.  46.  See  the  Court  Manage- 
ment of  Railroads,  by  Hon,  S.  D. 
Tliompson,  27  Am.  Law  Rev.  481, 

3  Wallace  v.  Loomis,  97  U.  S. 
146,  163,  24  L,  ed.  895,  901;  Shaw 
V.  Railroad  Co.,  100  U.  S.  605,  612, 
25  L.  ed.  757,  759;  Taylor  v.  Phila. 
&  R.  R.  Co.,  9  Fed.  1 ;  Credit  Co. 
of  London  v.  Arkansas  Cent.  R.  Co., 
15  Fed.  46;  Street  v.  Md.  Cent.  Ry. 
Co.,  59  Fed.  25. 

4  Meyer  v.  Johnston,  53  Ala. 
237;  Jerome  v.  McCarter,  94  U.  S. 
734,  24  L.  ed.  136;  Wallace  v. 
Loomis,  97  TJ.  S.  146,  24  L.  ed. 
895;  Miltenberger  v.  Logansport 
Ry.  Co.,  106  U.  S.  286,  27  L.  ed. 
117;  Stanton  v,  Ala.  &  C.  Ry.  Co., 
2   Woods,  506;   s.  c,   31  Fed.  585; 


Kennedy  v.  St.  Paul  &  P.  R.  Co., 
2  Dill.  448;  Hoover  v.  Montclair  & 
G.  L.  R.  Co.,  29  N.  J.  Eq.  4;  Coe 
V.  N.  J.  Mid.  Ry.  Co.,  27  N.  J.  Eq. 
37;  Union  Tr.  Co.  v.  Illinois  Mid. 
Ry.  Co.,  117  U.  S.  434,  29  L.  ed. 
963.  For  a  case  where  certain  prop- 
erty was  exempted  from  the  lien, 
see  Third  St.  &  S.  Ry.  Co.  v.  Lewis, 
79  Fed.  19;  Boyce  v.  Southern  Nat. 
Bank,  C.  C.  A.,  203  Fed.  698. 

5  Royal  Tr.  Co.  v.  Washburn  B. 
&  I.  Ry.  Co.,  C.  C.  A.,  120  Fed.  11. 

6  Union  Trust  Co.  v.  111.  Midland 
R.  R.  Co.,  117  U.  S.  434,  458;  Am. 
Brake  Co.  v.  Pere  Marquette,  C.  C. 
A.,  205  Fed.  14,  19;  Westinghouse 
El.  &  Mfg.  Co.  V.  Brooklyn  Rapid 
Transit,  C.  C.  A.,  260  Fed.  550. 

7  Jerome  v.  McCarter,  94  U.  S. 
734,  24  L.  ed.  136;  Wallace  v. 
Loomis,  97  U.  S.  146,  24  L.  ed.  895; 
Miltenberger  v.  Logansport  Ry.  Co., 
106  U.  S.  286,  27  L.  ed.  117;  Cen- 
tral Bank  &  Trust  Corporation  v. 
Cleveland,  C.  C.  A.,  252  Fed.  530, 
But  see  Merchants  Loan  &  Tr.  Co. 
V.  Chicago  Rys.  Co.,  C.  C.  A.,  158 
Fed.  923;  Gay  v.  Hudson  River  El, 
Power  Co.,  166  Fed.   771, 


§309] 


RECEIVERS '  CERTIFICATES 


1553 


to  discharge  claims  having  an  equitable  preference  to  tliut  of 
the  party  at  whose  instance  the  receiver  was  appointed,*  or  to 
restore  to  tiie  rightful  owners  so  much  of  the  income  as  the 
receiver  lias  improperly  applied  to  the  foregoing  purposes.* 
In  one  case  the  receiver  was  authorized  to  borrow  money  with 
which  to  buy  a  mortgage  prior  to  that  under  whidi  the  bonds 
in  suit  had  been  issued,  in  order  that  the  sale  of  the  prop- 
erty might  be  made  by  the  Federal  court  in  which  a  creditor's 
bill  was  pending,  althougii  a  subsequent  proceeding  to  foreclose 
such  pi-ior  mortgage  was  then  pending  in  the  State  court,  willi 
the  Federal  court's  permission."  They  have  been  i.ssued  in 
compromise  of  a  doubtful  claim  to  a  much  larger  amount  of 
property  belonging  to  the  estate."  They  may  be  issued  to  raise 
money  for  permanent  betterments;  12  but  Ihe  last  is  a  pijwer 
which  should  be  exercised  rarely  and  witli  great  caution."  In 
a  few  cases,  receivers  have  been  authorized  thus  to  borrow 
money  in  order  to  complete  the  construction  of  railroads,  and 
save  from  forfeiture  land  grants  and  municipal  subscriptions.^* 
Certificates  have  been  issued  to  pay  interest  upon  a  divisional 
mortgage  prior  to  that  lo  foreclose  which  the  suit  was  brought. 
Where  the  net  earnings  of  a  railroad  are  sufficient  to  defray 
current  expenses,  the  court  will  not  authorize  the  issue  of  re- 
ceivers' certificates  merely  for  the  sake  of  paying  interest  upon 


8  Miltenl)erger  v.  Logansport  Ey. 
Co.,  106  U.  S.  286,  27  L.  ed.  117; 
Taylor  v.  Phila.  &  R.  R.  Co.,  7  Fed. 
377;  Skiddy  v.  Atlantic,  M.  &  O. 
R.   Co.,  .3   Hughes,  320. 

9  Central  Trust  Co.  v.  Wabash, 
St.  1..  &  P.  Ry.  Co.,  23  Fed.  863; 
P.erwiud  White  Coal  Min.  Co.  v. 
Metropolitan  S.  S.  Co.,  183  Fed. 
250;  Am.  Trust  Co.  v.  Metropolitan 
S.  S.  Co.,  C.  C.  A.,  190  Fed.  113; 
approveil  Harv.  Law  Rev.,  xxv,  460. 

10  Beaton  v.  Seaboard  Portland 
Cement  Co.,  C.  C.  A.,  211  Fed.  84. 

11  Am.  Dist.  Steam  Co.  v.  Walter- 
mire,  C.  C.  A.,  231  Fed.  412. 

12  Am.  Brake  S.  &  F.  Co.  v.  Pere 
Marquette  R.  Co.,  C,  C,  A.,  205  Fed. 
14. 


13  Texas  Co.  v.  International  & 
G.  X.  Ry.  Co.,  C.  C.  A.,  23  7  Fed. 
931. 

14  Kennedy  v.  St.  Paul  &  P.  R. 
Co.,  2  Dill.  448;  Miltenberger  v. 
Logansport  Ry.  Co.,  106  U.  S.  286, 
294,  295,  27  L.  ed.  117,  120,  121. 
See  also  Smith  v.  MoCuUough,  104 
V.  S.  25,  29,  26  L.  ed.  637,  639. 
But  see  Investment  Co.  v.  Ohio  & 
N.  W.  R.  Co.,  36  Fed.  48;  Mer- 
chants' Loan  &  Trust  Co.  v.  Chi- 
t-ago Rys.  Co.,  C.  C.  A.,  158  Fed. 
923;  Bibber  White  Co.  v.  White 
River  Val.  El.  R.  Co.,  C.  C.  A.,  115 
Fed.  786.  See  Credit  Co.  v.  Arkan 
sas  Central  R.  Co.,  15  Fed.  446. 


1554 


RECEIVERS 


[§309 


the  mortgage  under  foreclosure.^^    It  has  been  said  to  be  doubt- 


is  Taylor  V.  Phila.  &  E.  E.  Co., 
9  Fed.  1;  Am.  Brake  S.  &  F.  Co. 
V.  Pere  Marquette  &  Co.,  C.  C.  A., 
205  Fed.  14,  23,  24,  per  Knappen, 
J.:  "Appellant  complains  of  the 
direction  to  the  receivers  to  pay 
the  interest  on  appellant's  mort- 
gage, as  tying  its  hand  by  prevent- 
ing foreclosure,  thus  precluding  re- 
lief from  a  burdensome  situation. 
Under  ordinary  conditions,  appel- 
lant could  not  be  heard  to  com- 
plain of  the  payment  of  interest 
to  itself,  and  thus  of  a  prevention 
of  a  default  which  would  give  right 
of  foreclosure.  Lloyd  v.  C.  &  O.  S. 
W.  Ey.  Co.  (C.  C),  65  Fed.  351, 
356.  But  the  situation  here  is  a 
peculiar  one.  The  order  in  ques- 
tion was  made  nearly  a  year  ago. 
*  *  *  If,  as  seemed  not  un- 
likely when  the  order  was  made, 
an  indefinite  continuance  of  the  re- 
ceivership is  to  result  in  a  constant- 
ly increasing  indebtedness  prior  to 
appellant 's  mortgage,  appellant 
can,  we  think  equitably  complain  of 
the  denial  of  opportunity  to  fore- 
close. The  record  does  not  advise 
us  of  the  salable  value  of  the  rail- 
road property.  But,  to  say  the 
least,  it  may  well  be  tliat  further 
considerable  increase  of  indebted- 
ness prior  to  appellant's  mortgage 
will  seriously  impair,  if  not  de- 
stroy, its  value.  The  object  of  a 
creditor's  suit  is  not  to  perma- 
nently or  indefinitely  tie  up  the 
property,  but  merely  to  conserve  and 
operate  it  pending  ultimate  disposi- 
tion, to  marshal  its  assets,  and  in 
some  suitable  manner  to  devote 
them  to  the  payment  or  security  of 
its  indebtedness.  We  are  not  ad- 
vised of  the  receiver's  plans  for  the 
coming  year,  nor  should  we  attempt 


to  forestall  the  exercise  of  discre- 
tion by  the  District  Court.  Under 
the  circumstances,  we  content  our- 
selves with  suggesting  that  our  ac- 
tion upon  the  present  order  must 
not  be  taken  as  indorsing  the  pro- 
priety of  further  increasing  the  in- 
debtedness prior  to  appellant 's  mort- 
gage in  injury  to  that  security, 
without  leaving  appellant  free  to 
protect  itself  by  foreclosure.  Should 
that  question  later  arise,  it  can 
then  be  determined. ' '  Westing- 
house  E.  &  Mfg.  Co.  V.  Bingham- 
ton  Ey.  Co.,  255  Fed.  378,  385: 
' '  A  receivership  is  for  the  benefit 
and  protection  of  all  interests,  gen- 
eral creditors,  secured  creditors 
(bondholders),  and  stockholders  and 
it  is  the  duty  of  the  court  so  far 
as  reasonably  possible,  to  conserve 
and  protect  all  interests.  The  court 
should  not  and  cannot  properly  hold 
and  manage  such  a  property  in- 
definitely. There  must  be  revenues 
not  only  to  pay  taxes,  but  to  pay 
current  operating  expenses  and  cur- 
rent and  necessary  repairs;  also  to 
pay  interest  on  bonds  accruing,  due 
and  secured  by  mortgage,  and  which 
must  be  paid  to  prevent  the  trus- 
tee under  such  mortgages  from  de- 
claring a  default  and  proceeding  to 
foreclose.  This  court  has  no 
power  to  enjoin  such  action  by  the 
trustee  under  such  mortgage  given 
to  secure  the  payment  of  bonds.  It 
has  no  power  to  issue  receiver's 
certificates  to  raise  money  to  pay 
such  interest  on  bonds,  and  make 
the  indebtedness  thus  created  a 
first  lien  after  operating  expenses 
and  taxes;  that  is,  a  lien  prior  to 
the  lien  on  bonds  themselves." 
Per  Eay,  J. 


§  309]  receivers'  certificates  1555 

ful  whether  tlie  court  has  the  power  to  authorize  a  receiver  to 
issue  car-trust  certificates,  secured  by  a  lieu  upon  the  cars  thus 
bought,  payable  in  ten  annual  installments.^® 

In  cases  of  industrial  corporations,  which  are  not  engaged  in 
public  service,  such  as  mining  companies, ^'^  manufacturing  com- 
panies,^^ land  and  irrigation  companies, ^^  and  even  it  seems 
of  holding  companies  which  have  the  control  of  the  stock  and 
the  operations  of  a  system  of  street  railroads,^"  the  court  has  no 
power  to  issue  receivers'  certificates  to  displace  mortgage  liens 
without  the  consent  of  the  mortgagee,  except  to  provide  for 
the  necessary  expenditures  incident  to  the  administration  of  the 
assets,  and  the  preservation  of  the  property  from  deterioration, 
pending  the  winding  up  of  the  business  and  a  settlement  of  the 
receivership.  It  has  been  held  that  such  a  receiver  has  no  power, 
for  the  purpose  of  completing  an  unfinished  building,  to  borrow 
money  by  means  of  certificates,  which  have  priority  over  a  pre- 
existing mortgage.2i  An  order  authorizing  the  issue  of  receivers' 
certificates  to  pay  "wages  and  freights  due  and  to  become  due" 
does  not  authorize  the  issue  of  a  cei-tificatc  to  pay  money  ad- 
vanced to  pay  wages  by  honoring  "store  orders."  ^^ 

Without  leave  of  the  court,  a  receiver  has  no  power  to  i)iedge 
the  trust  estate,  nor  to  make  a  contract  for  a  loan  of  money 

16  Taylor  v.  Phila.  &  R.  Co.,  9  see  Piiscy  &  Joues  v.  rcnnsylvauia 
Fed.  1.  Paper    Mills,    C.    C.    A.,    173    Fed. 

17  Fidelity  I.  &  S.  Co.  v.  Shenan-  634;  Conklin  v.  U.  S.  Shipbuilding 
doah  Iron  Co.,  42  Fed.  372;  Farm-  Co.,  123  Fed.  913.  See  High  on 
ers'   L.    &    Tr.   Co.   v.    Grape   Creek  Receivers   (4th  ed.),  §  312b. 

Coal  Co.,  16  L.R.A.  603,  50  Fed.  19  Hanna  v.  State  Tr.  Co.,  C.  C. 
481;  International  Tr.  Co.  v.  Decker  A.,  30  L.R.A.  201,  70  Fed.  2;  Farm- 
Eros.,  C.  C.  A.,  152  Fed.  78;  Cow-  ers'  Loan  &  Tr.  Co.  v.  Burbank 
den  V.  Wild  Goose  Mining  &  Trad-  Power  &  Water  Co.,  196  Fed.  539. 
ing  Co.,  C.  C.  A.,  199  Fed.  561.  20  Ball      v.      Improved      Property 

18  Fidelity  I.  &  S.  Co.  v.  Shenan-  Holding  Co.,  C.  C.  A.,  247  Fed. 
doah  Iron  Co.,  42  Fed.  372;  Laugh-  645. 

lin   V.   U.   S.   Rolling   Stock   Co.,   64  21  Raht  v.  Attrill,  106  N.  Y.  423. 

Fed.    25;    Newton    v.    Eagle    &    P.  60  Am.  Rep.  456.     See  U.  S.  Invest- 

Mfg.   Co.,   76   Fed.   418;    Union   Tr.  ing     Corp.     v.     Portland     Hospital 

Co.    V.    Southern    Sawmills    &    Lum-  (Oregon.     1902),    67    Pac.    194,    56 

ber    Co.,    C.    C.    A.,    166    Fed.    193;  L.R.A.    627;    Baltimore    Building   & 

Beaton    v.    Seaboard    Portland    Ce-  Loan   Ass'n  v.   Alderson,  C.   C.   A., 

ment   Co.,   C.   C.   A.,   211   Fed.    84;  90  Fed.  142,  32  C.  C.  A.  542. 

Smith    V.    Shenandoah    Valley    Nat.  22  Fidelity    Ins.    &    S.    D.    Co.    v. 

Bank,  C.  C.  A.,  246  Fed.  379.     But  Shenandoah  I.  Co..  42  Fed.  372,  377. 


1556 


RECEIVERS 


[§309 


which  will  bind  the  estate,^^  or  even  biud  the  proposed  lender.^* 
An  order  for  the  issue  of  receivers'  certiiicates  is  usually 
granted  only  upon  notice  to  all  parties  in  interest.^^  They  are  en- 
titled to  notice  before  the  order  becomes  practically  effect ive.^^ 
Those  who  have  not  received  notice  may  move  to  set  aside  the 
order  and  to  cancel  the  certificates,  if  they  act  as  soon  as  they 
learn  what  was  done.^'  Where  eighty-five  per  cent  of  the  cred- 
itors joined  in  the  application  for  the  issue  of  certificates  and 
only  one  small  creditor  objected  the  court  ordered  that  the 
objector  be  paid  in  full  and  the  certificates  issued,^^ 

The  order,  although  ex  parte,  remains  in  full  force  till  set 
aside ;  and  is  not  revoked  by  a  reference  to  determine  all  claims 
against  the  receiver,  and  a  confirmation  of  a  report  thereat 
making  no  mention  of  the  certificates,  when  it  appears  that  they 
were  not  presented  or  considered  at  the  reference,  and  that 
their  holder  had  no  notice  of  the  reference.^^  A  very  short 
de]ay  after  knowledge  that  such  an  order  has  been  granted  will 
estop  a  party  from  objecting  to  the  validity  of  certificates  issued 
in  pursuance  of  it,^°  and  from  claiming  that  property  is  not 
subject  to  the  lien  of  such  certificates.'^ 


23  Union  Tr.  Co.  v.  111.  Mid.  Ey. 
Co.,  117  U.  S.  434,  29  L.  ed.  96.3; 
Cent.  Tr.  Co.  v.  Cincinnati,  J.  &  M. 
Ry.  Co.,  58  Fed.  500;  §308,  supra. 
The  court  may  ratify  the  loan  after 
it  has  been  made.  Elk  Fork  O.  & 
G.  Co.  V.  Foster,  C.  C.  A.,  99  Fed. 
495;  Ibid.,  90  Fed.  767. 

24  Smith  v.  MeCnllough,  104  U. 
S.  25.  29,  26  L.  ed.  637,  639. 

25  Bibber-White  Co.  v.  White 
Eiver  Val.  El.  R.  Co.,  C.  C.  A.,  115 
Fed.  786;  Union  Tr.  Co.  v.  Southern 
Sawmills  &  Lumber  Co.,  C.  C.  A., 
166  Fed.  193;  Illinois  Steel  Co.  v. 
Ramsey,  C.  C.  A.,  176  Fed.  853, 
866;  Knickerbocker  Tr.  Co.  v.  One- 
onta,  Cooperstown  &  Richfield 
Springs  Ry.  Co.,  201  N.  Y.  379. 

36  Union  Trust  Co.  v.  111.  Mid- 
land R.  R.  Co.,  117  U.  S.  434,  459, 
6  Sup.  Ct.  809,  29  L.  ed.  963;  Am. 
Brake    S.    &    F.    Co.    v.    Pere   Mar- 


quette  R.   Co.,   C.   C.   A.,   205   Fed. 
14,  17. 

27  Ex  parte  Mitchell,  12  S.  C.  83. 
But  see  Miltenberger  v.  Logansport 
Ry.  Co.,  106  U.  S.  286,  297,  298, 
27  L.  ed.  117,  121,  122. 

28  B.  Borehardt  Co.  v.  Yaryan 
Naval  Stores  Co.,  206  Fed.  366. 

29Hervey  v.  111.  Mid.  Ry.  Co.,  28 
Fed.  169.  Cf.  Central  T.  R.  Co.  v. 
Sheffield  &  B.  C.  I.  &  Ry.  Co.,  44 
Fed.  526.  Mercantile  Tr.  Co.  v. 
Kanawha  &  O.  Ry.  Co.,  50  Fed.  874. 

30  Miltenberger  v.  Logansport  Ry. 
Co.,  106  U.  S.  286,  27  L.  ed.  117; 
Union  Tr.  Co.  v.  111.  Midland  Ry, 
Co.,  117  U.  S.  434,  29  L.  ed.  963; 
Central  Tr.  Co.  v.  Marietta  &  N.  G. 
R.  Co.,  C.  C.  A.,  75  Fed.  193;  s.  C, 
75  Fed.  209;  Berwind-White  Coal 
Min.  Co.  V.  Metropolitan  S.  S.  Co., 
183  Fed.  250;  Central  Tr.  Co.  v. 
The  Pittsburgh,  Shawmut  &  North- 


§  -m] 


receivers'  certificates 


1557 


Receivers'  ecrlilicates  are  assigiiablo,  but  not  negotiable.^" 
"Receiver's  certificates,  being  merely  evidences  of  indebtedness, 
can  have  no  higher  character  than  the  debts  of  which  they  are 
the  representatives. "33  "The  receivers'  certificate  is  defined 
within  the  corners  of  the  court's  oi-der,  aided,  in  interpretation, 
somewluit  by  the  petition  on  which  issued  and  such  other  docu- 
mentary evidence  as  may  be  relevant."  ^^  A  ])urchaser  of  re- 
ceiver's certificates  at  p;ii-  IVoiii  the  receiver  without  notice  of 
any  suspicious  facts  is  not  prejudiced  by  the  aj)propriation  of 
the  funds  by  the  receiver  for  his  own  use.35  A  payment  to  a 
certificate  holder  in  violation  of  an  order  of  the  court  does  not 


crn  Ry.  Co.,  174  App.  D.  800; 
Lake  v.  Miulgett,  C.  C.  A.,  252  Fed. 
.S65.  It  was  held  that  notice  of 
an  ajiplicatiou  for  receiver's  cer- 
tificates given  to  a  trustee  of  a 
mortgage  who  was  not  a  party  to  a 
suit  did  not  make  them,  when  is- 
sued, prior  to  the  mortgage,  Farm- 
ers' L.  &  Tr.  Co.  V.  Centralia  &  C. 
B.  Co.,  C.  C.  A.,  96  Fed.  636;  and 
that  a  bondholders'  committee  em- 
powered to  act  in  matters  requisite 
or  necessary  for  the  enforcement 
and  protection  of  the  legal  rights 
of  the  holders  of  mortgage  bonds 
had  no  authority  to  consent  in  their 
liohalf  to  the  issue  of  receiver's  cer- 
tificates with  a  priority  over  the 
mortgage,  in  order  to  pay  claims 
not  entitled  to  a  preference.  Ibid. 
See  Fordyce  v.  Omaha,  Kansas  City 
&  E.  R.  R.,  145  Fed.  544,  556. 

31  State  Tr.  Co.  v.  Kansas  City, 
P.  &  f4.  R.  Co.,  120  Fed.  398. 

32  Union  Tr.  Co.  of  X.  Y.  v.  Cln- 
.•ago  &  L.  H.  R.  Co.,  7  Fed.  513; 
Stanton  v.  Ala.  &  C.  R.  Co.,  31  Fed. 
585;  Turner  v.  Peoria  &  S.  R.  Co., 
95  111.  134,  35  Am.  Rep.  144;  Stan- 
ton V.  Ala.  &  C.  R.  Co.,  2  Woods, 
506;  s.  c,  31  Fed.  585;  Central 
Nat.  Rank  v.  Hazard,  30  Fed.  484. 

33  Fidelity    Ins.    &    Safe    Deposit 

Fed.  Prac.  Vol.  11—28 


Co.  V.  Shenandoah  Iron  Co.,  42  Fed. 
372,  377;  Bibber-White  Co.  v.  White 
River  Valley  El.  R.  Co.,  175  Fed. 
470. 

34ffe  J.   B.  &  J.  M.   CorueU   Co., 
201   Fed.  381,  388. 

35  Mercantile  Tr.  Co.  v.  Kanawha 
&  0.  Ry.  Co.,  50  Fed.  874.  Where 
a  receiver  issued  a  certificate  to  a 
j)crson  named  therein  as  yjayee,  for 
negotiation  and  sale,  and  the  latter 
never  paid  over  any  money  on  ac- 
count of  it,  a  purchaser  of  the  cer- 
tificate at  much  less  than  par,  who 
was  unable  to  prove  that  the  person 
from  whom  he  bought  it  had  paid 
anything  therefor  to  the  person 
named  as  payee,  was  not  allowed  to 
receive  anything  from  the  receiver 
on  account  of  the  same.  Union  Tr. 
Co.  V.  Chicago  &  L.  H.  R.  Co.,  7 
Fed.  513.  See  Stanton  v.  Ala.  & 
C.  R.  Co.,  31  Fed.  585;  s.  c,  2 
Woods,  506.  For  a  border  case 
where  the  court  refused  to  set  aside 
certificates  obtained  upon  a  report 
by  the  receiver  which  misled  the 
court  below  by  stating  an  erroneous 
conclusion  as  to  the  legal  rights  of 
the  certificate  holder  failed  to  set 
forth  a  copy  of  the  contract  upon 
which  such  rights  were  based  and 
made  an  incomplete  presentation  of 


1558 


RECEIVERS 


[§309 


preclude  him  from  offsetting  any  lien  he  may  have  against  a 
proceeding  to  compel  repayment.*^ 

The  court  has  power  to  pay  out  of  the  fund  receivers'  cer- 
tificates in  the  hands  of  bona  fide  purchasers,  although  the  re- 
ceivership is  dissolved  and  the  bill  dismissed.^"^ 

It  has  been  said  that  the  power  to  issue  them  is  a  personal 
one  which  the  receiver  cannot  delegate.^s 

The  holders  of  receivers'  certificates  are  bound  by  all  subse- 
quent proceedings  in  the  suit,  whether  or  not  the  same  affect 
their  lien  and  with  or  without  notice.** 

It  was  held  to  be  an  abuse  of  discretion  for  the  court  to  sell 
property,  without  first  determining  questions  raised  concerning 
the  validity  of  receivers'  certificates;*"  and  that  such  questions 
should  be  determined,  after  taking  testimony  rather  than  upon 
a  demurrer.*!  The  purchaser  at  a  judicial  sale  made  subject 
to  the  payment  of  receivers'  certificates  cannot  contest  their 
validity ,*2  unless  his  right  so  to  do  is  reserved. 

A  receiver  is  personally  responsible  for  a  fraudulent  state- 
ment in  a  certificate  which  he  issues.** 

In  at  least  one  case,  the  court  ordered  the  receiver  to  execute 
a  mortgage  to  secure  the  receiver's  certificates.**  The  receiver 
may  be  authorized  to  borrow  money  without  the  issue  of  re- 
ceiver's certificates.*^  In  such  a  case  the  court  may  grant  the 
lender  a  lien  upon  the  property  bought  with  the  proceeds  of 


the  facts,  see  American  Dist. 
Steam  Co.  v.  Waltermire,  C.  C.  A., 
231  Fed.  412. 

36  People's  Savings  Bank  &  Trust 
Co.  V.  Sogers,  C.  C.  A.,  177  Fed. 
386,  387. 

37  El.  Supply  Co.  V.  Putin-Bay 
W.  L.  &  Ey.  Co.,  84  Fed.  740. 

38  Union  Tr.  Co.  v.  Chicago  &  L. 
H.  E.  Co.,  7  Fed.  513.  But  see  Ala. 
Iron  &  Ey.  Co.  v.  Armiston  L.  & 
Tr.  Co.,  C.  C.  A.,  57  Fed.  25. 

39  Gordon  v.  Newman,  62  Fed. 
686;  Mercantile  T.  Co.  v.  Kanawha 
&  O.  Ey.  Co.,  C.  C.  A.,  58  Fed.  6. 
But  see  Sheffield  &  B.  C.  I.  &  Ey. 
Co.  V.  Newman,  C.  C.  A.,  77  Fed. 
787. 


40  International  Tr.  Co.  v.  Decker 
Bros.,  C.  C.  A.,  11  L.E.A.  (N.S.) 
152,  152  Fed.  78. 

41  Savings  &  Tr.  Co.  v.  Bear  Val- 
ley Ir.  Co.,  112  Fed.  693. 

42  Central  Nat.  Bank  v.  Hazard, 
30  Fed.  484;  Central  T.  Co.  v.  Shef- 
field &  B.  C.  &  I.  Ey.  Co.,  44  Fed. 
526. 

43  Bank  of  Montreal  v.  Thayer,  7 

Fed.  622. 

44  Jerome  v.  McCarter,  94  U.  S. 
734,  24  L.   ed.   136. 

46  Beaton  v.  Portland  Cement  Co., 
C.  C.  A.,  211  Fed.  84. 


§  309]  receivers'  certificates  1559 

the  loau.*^  But,  ordinarily,  the  order  for  the  issue  of  the  cer- 
tificates provides  that  they  shall  constitute  a  lien  upon  the  prop- 
erty superior  to  all  prior  incumbrances,*''  or  superior  to  all  thcsL' 
with  certain  exceptions,  which  is  sufficient."  Certificates  may 
be  authorized,  the  i)ayment  of  which  is  to  be  subsequent  to  that 
of  other  certificates.*^  A  provision  as  to  their  priority  is  a  pro- 
tection to  the  receiver  if  he  makes  payment  accordingly;  but 
it  has  been  held  that  it  may  be  revoked  by  the  court.^® 

It  has  been  said  that  a  receiver's  certificate  payable  out  of 
the  income  is  in  the  nature  of  a  call  loan,  and  that  the  holder 
has  the  right  to  presume  that  the  receiver  will  notify  him  when 
the  loan  is  to  be  collected  or  the  money  paid.**^  A  certificate 
may  be  renewed  without  prejudice  to  its  lien.^^ 

Where  the  order  provides  that  the  certificates  shall  be  a  first 
lien  on  the  property,  the  lien  may  be  enforced  by  an  indei)endent 
suit,'*^  or  by  a  petition  in  the  suit  in  which  they  were  issued 
to  the  court  which  ordered  their  issue,"  or  to  a  court  liaviiig 
territorial  jurisdiction  over  a  part  of  the  railroad  in  an  ancillary 
suit."  Even  when  the  order  makes  the  certificates  the  first  lien 
upon  the  property,  all  the  expenses  of  the  receivership  will  be 
previously  paid,^^  and  so  it  has  been  held  will  be  an  attorney's 
fee  in  bankruptcy  proceedings  subsequently  instituted.**'     Hut 

46  ihid.  62  People  's  Savings  Bank  &  Trust 

47  In  one  case  the  order  simply  Co.  v.  Eogers,  C.  C.  A.,  177  Fed. 
stated    that    the    eertifi<^ates    should       386,  387. 

be    payable    out    of    the    income    of  63  Swann  v.  Clark,  110  U.  S.  602, 

the  property,  and  "be  provided  for  28   L.   ed.   256.     But   see    'Re  C.   M. 

by  this   court   in   its   final   order   in  Burkhalter  &  Co.,  179  Fed.  403. 

said   cause,  unless  paid  by   the  re-  64  Mercantile   T.  Co.  v.  Kanawha 

ceiver    out    of    the    income    of    said  &  O.  Ry.  Co.,  50  Fed.  874.    See  Am. 

road    as   aforesaid."     Miltenberger  Trust  Co.  v.  Metropolitan  S.  S.  Co., 

V.    Logansport   Ry.    Co.,    106   U.   S.  C.  C.  A.,  190  Fed.  113. 

286,  298,  27  L.  ed.   117,  122.     For  66  Ibid.      Contra,    Stark    Electric 

a    good    form    of    an    order    and    a  R.  Co.  v.  McGinty  Contracting  Co., 

certificate,  see  Kennedy  v.  St.  Paul  C.  C.  A.,  238  Fed.  657. 

&  P.  R.  Co.,  2  Dill.  448.  66  Pusey  V.  Jones  v.  Pennsylvania 

48  Am.  Dist.  Steam  Co.  v.  Water-  Paper  Mills,  C.  C.  A.,  173  Fed.  634. 
mire,  C.  C.  A.,  231  Fed.  412.  See  Ball  v.  Improved  Property  Hold- 

49  Ibid.  ing  Co.,  C.  C.  A.,  247  Fed.  645. 

50  Ball  V.  Improved  Property  67  Smith  v.  Shenandoah  Valley 
Holding  Co.,  C.  C.  A.,  247  Fed.  645.       Nat.  Bk.,  C.  C.  A.,  246  Fed.  379. 

61  Sago,  J.,  in  Mercantile  T,  Co. 
v.  Kanawha  &  O.  Tiy.  Co.,  50  Fed. 
874,  878. 


1560  KECEIVERS  [§  309 

the  court  postponed  to  the  claim  of  the  certificate  holders 
the  fees  of  attorneys  who  had  acted  for  the  complainant  and 
the  receivers  and  who  had  represented  to  the  lenders  that  the 
certificates  were  ample  security.^* 

Where  the  order  for  the  issue  of  the  certificates  to  procure 
money  to  pay  taxes  and  rent  made  no  provision  as  to  their 
priority  over  rent  subsequently  accruing  upon  real  property 
held  by  the  receiver,  upon  the  distribution  of  the  assets,  claims 
for  such  subsequent  rent  were  placed  upon  an  equality  with  the 
certificates.^* 

When  the  proceeds  of  the  property  are  insufficient  to  pay  the 
receiver's  certificates  in  full,  those  issued  to  defray  the  expenses 
of  the  receivership  will  be  paid  before  certificates  given  for 
preferential  debts  of  the  mortgagor ;  ^o  but  certificates  issued  for 
betterments  were  not  given  a  priority  over  the  claims  for  ma- 
terial and  supplies  furnished  to  the  insolvent  within  a  few 
months  before  the  receivership ;  ^^  and  the  lien  of  certificates 
issued  for  the  expenses  of  the  receivership  was  postponed  to 
tax  liens  and  mechanics'  liens  that  previously  vested,  although 
the  mortgagee  consented  that  such  certificates  should  be  prior 
to  the  mortgage.62  When  a  suit  against  a  corporation  en- 
gaged in  mining  and  trading  was  begun  by  an  attachment,  the 
certificates  therein  issued  were  given  a  lien  subsequent  to  that 
of  the  attacking  creditor.^^^  AVhere  there  were  two  sets  of  re- 
ceivers' certificates,  the  first  with  the  consent  of  the  bondholders 
made  a  lien  prior  to  the  mortgage,  the  second  issued  without 
such  consent  and  without  such  a  provision ;  it  was  held  that  the 
second  set  should  be  paid  subsequent  to  the  mortgage.^* 

58  Willcox  V.  Southern  Nat.  Bauk,  the  bonds     *     *     *     or,  if  the  fund 
C.   C.  A.    211   Fed.   968.  realized  be  not  sufficient,  to  pay  the 

59  Ball     V.      Improved      Property  same,   tlien    to   the   payment   of   the 
Holding  Co.,  G.  C.  A.,  247  Fed.  645.  same  pro  rata."     See  S.  Horton  v. 

60  Bank   of    Commerce   v.    Central  Thomas  ML-Nally,   Ck.,   89   Misc.  N. 
Coal  &  Coke  Co.,  C.  C.  A.,  115  Fed.  Y.  165. 

878.      This   was   so   held   even   when  61  Pennsylvania  Steel  Co.  v.  N.  Y. 

the   decree   provided   that   the   fund  City  Ry.   Co.,   165  Fed.   455;    §305, 

arising  from  the  sale  should  be  ap-  supra. 

plied,   after   payment   of    costs   and  62  Pusey  &  Jones  v.  Pennsylvania 

expenses,    "to    the   payment    of    all  Paper  Mills,  173  Fed.  634. 

interventions   or   other   claims   here-  63  Smith     v.     Shenandoah     Valley 

tofore    or    hereafter    to    be    allowed  Nat.  Bank,  C.  C.   A.,  246  Fed.  379. 

*     *     *     as  superior  to  the  liens  of  64  iJe  J.  B.  &  J.  M.  Cornell  Co., 


§310] 


ADVICE   TO   RECEIVERS 


15G1 


Where  the  property  was  situated  outside  of  the  State  and  ju- 
dicial district,  and  lienholders,  who  were  indispensable  parties, 
were  citizens  of  the  same  State  as  the  complainant ;  it  was  held 
that  an  order  issuing  receivers'  certificates  to  complete  an  un- 
finished building  was  void.^^ 

A  receiver  appointed  in  a  suit  for  the  foreclosure  of  a  second 
railroad  mortgage  may  be  authorized  to  issue  certificates  con- 
stituting a  prior  lien  to  that  of  the  first  mortgage,  provided  the 
mortgagor  is  in  default  as  to  that,  and  tiie  first  mortgagee  is  a 
party  to  the  suit.^® 

An  order  authorizing  the  issue  of  receiver's  certificates  is 
appealable.^'  A  P'ederal  court  has  no  power  to  enjoin  a  re- 
ceiver appointed  by  a  State  court  from  issuing  certificates  of 
indebtedness.^* 

§  310.  Advice  to  receivers.  Receivers  may  apply  to  the  court 
for  instructioii.s  and  advice,  both  generally  and  in  particular 
ca.ses.*  In  every  doubtful  case,  it  is  the  duty  of  the  receiver 
to  apply  for  the  instructions  of  the  court. ^ 

"If  there  are  parties  in  interest,  and  they  have  their  day 
in  court,  the  advice  may  be  decisive.  But  if  the  matter  is  ex 
parte,  the  value  of  tlie  advice  depends  largely  upon  the  infor- 
mation and  ability  of  the  judge,  and  is  probably  binding  only 
on  the  receivers,  for  the  judge  may  change  his  mind  on  hear- 
ing full  argument."^ 


201  Fed.  381,  .39.3.  In  that  bank- 
ruptcy ease,  the  order  of  priority 
was  fixed  as  follows:  (1)  All 
taxes  due;  (2)  cost  of  administra- 
tion; (.3)  claim  of  the  holder  of  tlio 
first  series  of  certificates,  which 
were  by  their  terms  a  lien  prior  t(5 
the  mortgage;  (4)  claims  of  bond- 
holders secured  by  the  mortgage; 
(5)  second  series  of  certificates  and 
claims  of  creditors,  who  had  fnr- 
nislied  merchandise  to  the  receiv- 
ers, which  were  placed  upon  an 
equality;  (6)  claims  for  damages 
for  breach  of  contract;  (7)  claims 
for  injuries.  i?e  J.  B.  &  J.  M.  Cor- 
nell Co.,  201   Fed.  381,  393. 

66  Baltimore     Building     &     Loan 


Ass'n  V.  Alderson,  C.  C.  A.,  90  Fed. 
142,  32  C.  C.  A.  542. 

66  Miltenberger  v.  Logansport 
Ey.  Co.,  106  U.  S.  286,  27  L.  ed.  117. 

67  Farmers'  L.  &  T.  Co.  Petition- 
er, 129  U.  S.  206,  32  L.  ed.  656. 

68E,.iiiaih  v.  Atlantic  &  G.  W.  R. 
Co.,  58   Fed.  33. 

S  310.  1  Frank  v.  Denver  &  R. 
0.  Ry.  Co.,  23  Fed.  757;  Ex  parte 
Koehler,  23  Fed.  529;  Mo.  Pac.  Ry. 
Co.  V.  Tex.  &  P.  Ry.  Co.,  31  Fed. 
862;  in  bankruptcy,  Be  Gottlieb  & 
Co.,  245  Fed.  139. 

•  2  Chal)le  V.  Nicaragua  C.  C.  Co., 
59  Fed.  846.  He  Gotlieb  &  Co., 
245  Fed.  139,  145. 

3  Mo.  Pac.  Ry.  Co.  v.  Texas  &  P. 


1562 


RECEIVERS 


[§310 


It  has  been  said :  that,  when  installments  of  interest  are  about 
to  fall  due  under  a  mortgage  which  authorizes  the  mortgagee 
to  declare  the  principal,  due  for  default  in  interest,  it  is  the 
duty  of  the  receiver  to  apply  to  the  court  for  instructions  with 
respect  to  payment  of  the  interest  out  of  the  funds  in  his  hands.* 

Receivers  may  be  authorized  to  attend  the  hearings  before  a 
State  Public  Service  Commission.^  It  has  been  said,  that  from 
the  nature  of  things  the  court  cannot  determine  how  many 
trains  a  receiver  shall  run,^  nor  select  his  employees,'  although 
it  may  regulate  his  treatment  of  them,^  and  his  contracts  with 
them,^  and  will  listen  to  their  complaints  of  unfair  treatment 
by  him.i"  The  courts  have,  at  the  request  of  receivers,  instructed 
them  what  rates  to  charge,^^  and  directed  them  not  to  obej^  so 
much  of  a  State  statute  as  impaired  the  obligation  of  a  contract, 
where  the  petition  for  instructions  was  filed  a  month  before  the 
act  went  into  operation,^^  advised  a  receiver  whether  he  -hould 
pay  a  tax,^^  and  authorized  him  to  default  in  the  payment  of 
mortgage  interest  under  a  stipulation  with  the  trustees,  that 
foreclosure  suits  be  instituted,  the  receivership  extended  to  them, 
and  the  entry  of  the  decree  of  foreclosure  and  sale  should  then 
be  postponed  until  time  had  been  afforded  for  a  reorganization.^* 

When  a  railroad  was  in  the  hands  of  a  receiver  appointed 
in  a  suit  to  foreclose  a  mortgage,  the  court  refused  to  enter- 
tain a  petition  by  the  mortgagee  asking  for  instructions  as  to 


Ry.  Co.,  31  Fed.  862;  Jones  v. 
Moore,  198  Fed.  301,  an  order 
granting  leave  to  sue. 

4  Guaranty  Tr.  Co.  v.  Inter. 
Steam  Pump  Co.,  C.  C.  A.,  231  Fed. 
594,  595. 

6  Be  Metropolitan  St.  Ey.,  166 
Fed.  1006. 

6  Brewer,  J.,  Treat,  J.,  concur- 
ring, in  Central  Tr.  Co.  v.  Wabash 
St.  L.  &  P.  Ey.  Co.,  23  Fed.  863, 
867. 

7  Brewer,  J.,  in  Frank  v.  Denver 
&  E.  G.  Ey.  Co.,  23  Fed.  757,  764. 

8  Frank  v.  Denver  &  E.  G.  Ey. 
Co.,  23  Fed.  757,  764;  Waterhouse 
v.  Comer,  19  L.E.A.  403,  55  Fed. 
149. 


9  "Waterhouse  v.  Comer,  19  L.E.A. 
403,  55  Fed.  149;  Piatt  v.  Phila. 
&  E.  E.  Co.,  65  Fed.  660.  The  court 
refused  to  permit  receivers  of  a 
railroad  to  reduce  the  wages  of  the 
employees  and  change  the  terms  of 
their  employment  without  notice  to 
them.  Ames  v.  Union  Pac.  Ey.  Co., 
60  Fed.  674.  A  reduction  was  al- 
lowed in  IT.  S.  Tr.  Co.  v.  Omaha  & 
St.  L.  Ey.  Co.,  63   Fed.   737. 

10  Continental  Tr.  Co.  v.  Toledo. 
St.  L.  &  K.  C.  E.  Co.,  59  Fed.  514. 

11  Ex  parte  Koehler,  23  Fed.  529. 
18  Ibid. 

13  Ledoux  v.  La  Bee,  83  Fed.  761, 

14  Gay  V.  Hudson  Eiver  El.  Power 
Co.,  C.  C.  A.,  169  Fed.  1020. 


§  310a] 


REORGANIZATIONS 


1563 


the  propriety  of  posti)oiiing  a  meeting'  of  its  stocklioldcrs,  and 
for  permission  to  postpone  the  nieetintr.^^ 

§  310a.  Reorganization  of  corporations  whose  assets  are  held 
by  receivers.  The  appointment  of  the  receiver  of  a  corporation 
which  has  large  interests  is  usually  a  step  towards  its  reorgani- 
zation.^  "When  there  are  conflicting  interest.s  it  is  the  duty  of 
the  receiver  to  remain  neutral.^  It  is  not  his  duty  to  take  in 
or  to  promote  any  plan  or  reorganization.^ 

The  stockholdei-s  are  considered  to  hold  their  right  to  control 
the  insolvent  corporation  in  trust  for  the  creditors.  Conse- 
(piently,  when  the  reorganization  gives  the  former  a  share  in 
the  securities  of  the  new  company,  sujiei-ior  to  that  given  the 
creditors,  secured  or  unsecured,  or  i)laces  the  formei-  upon  an 
("i|ual  footing  with  the  latter,  the  sale  .sliould  he  set  aside,*  or  else 
in  a  proper  case,  the  property  in  the  hands  of  the  purcha.ser 
will  ])e  subject  to  the  |)ayment  of  the  claims  of  the  creditors 
who  were  unfairly  treated.^  The  coui't  has  ])ermitted  a  cred- 
itor to  take  advantage  of  the  plan  of  reorganization  after  the 
time  limited  for  that  purpose  had  expired,  when  the  delay  was 
caused  by  the  failure  of  the  reorganization  committee  to  answer 
his  claim  for  a  preference.^ 


15  Taylor  v.  Phila.  &  K.  E.  Co., 
7   Fed.   .381. 

§  .310a.  1  Guaranty  Trust  Co.  v. 
Missouri  Pac.  Ey.  Co.,  238  Fed. 
812,  814-816,  per  Hook,  J. 

2  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  By.  Co.,  20.5  Fed.  99,  quoted 
infra,  §311;  Guaranty  Tr.  Co.  v. 
Missouri  Pac.  Ey.  Co.,  238  Fed.  812. 
This  is  a  duty  which  is  rarely  ful- 
lilied  or  enforced  by  tlie  courts.  For 
a  case  where  an  application  for  the 
appointment  of  an  additional  receiv- 
er was  denied,  althoaigh  it  was 
charged  and  apparently  jiot  posi- 
tively denied  ' '  that  he  wrongfully 
assumed  the  function  of  an  expert 
advisor  of  those  who  have  under- 
taken to  formulate  a  plan  of  re- 
organization and  has  impressed 
upon  them  his  insufficient  views  of 
the  earning  capacity  of  the  rail- 
road,   with    the    result    that   a    pro- 


])0sed  plan,  based  on  estimated 
lower  earnings,  makes  the  interest 
on  the  new  securities  to  be  issued 
for  the  junior  securities  mentioned 
contingent  instead  of  fixed  or  abso- 
lute," see  Central  Trust  Co.  v. 
Missouri  K.  &  T.  Ey.  Co.,  246  Fed. 
155. 

3  Guaranty  Tr.  Co.  v.  Missouri 
Pac.  Ey.  Co.,  238  Fed.  812. 

4  Louisville  Trust  Co.  v.  Louis- 
ville N.  A.  &  C.  By.  Co.,  174  U.  S. 
674,  43  L.  ed.  1130;  infra,  §  .394e. 

6  Northern  Pac.  Ey.  Co.  v.  Boyd, 
228  U.  S.  482,  33  Sup.  Ct.  554,  57 
L.  ed.  931;  Kansas  City  Ey.  Co.  v. 
Guaranty  Trust  Co.,  240  U.  S.  166; 
W.  U.  Tel.  Co.  V.  U.  S.  &  Mex.  Tr. 
Co.,  C.  C.  A.,  221  Fed.  545;  infra, 
§  394e. 

6  Keech  v.  Stowe-Fuller  Co.,  C.  C. 
A.,  205  Fed.  887. 


1564 


EECEIVERS 


[§  310a 


The  court  will  interfere  if  the  reorganization  gives  an  un- 
fair advantage  to  one  class  of  persons  interested  over  anotherJ 

"I  do  not  think  that  courts  sit  to  redraw  or  modify  or  make 
suggestions  concerning  such  voluntary  business  arrangements 
as  reorganization  plans.  There  have  been  circumstances,  and 
they  may  arrive  again,  when  a  chancellor  may  bluntly  refuse 
to  sign  a  final  decree  which  is  intended  to  carry  out  a  grossly 
unfair   settlement. ' '  * 

"Courts  are  not  empowered  to  make  contracts  for  parties  in 
interest,  nor  can  courts  adjudge  or  decree  the  terms  upon  which 
a  mortgagee  may  allow  to  junior  lienors  or  others,  participation 
in  his  mortgaged  property  when  failure  to  pay  the  debt  due 
him  brings  that  property  under  the  hammer.  It  is  rare 
that  any  organization  is  satisfactory  to  all  concerned;  for  in 
the  nature  of  things,  when  there  is  not  on  hand  enough  to 
satisfy  every  obligation  in  full,  some,  and  perhaps  all,  must 
suffer  more  or  less ;  but,  in  the  absence  of  fraud  in  the  inception 
or  a  fraudulent  scheme  to  Avhich  court  proceedings  are  nec- 
essary incidents,  the  field  in  which  the  battle  for  respective  ad- 
justments must  be  fought  out  is  beyond  the  court  room,  for  the 
court  can  only  ask  whether  without  the  aid  of  fraud  or  unlawful 
means,  the  debt  is  really  and  justly  due.  It  is  clear  that  the 
court  cannot  directly  or  indirectly  rewrite  this  reorganization 
agreement."  * 

A  reorganization  which  results  in  a  transfer  to  a  new  com- 
pany in  which  stockholders  of  the  debtor  have  an  interest  but 
some  of  the  creditors  do  not,i*>  or  in  which  holders  of  bonds  se- 
cured by  a  mortgage  upon  part  of  the  property  do  not  receive 
their  fair  proportion  of  the  new  securities,"  is  unfair,  and  the 
sale  will  be  set  aside. 


7  Guaranty  Trust  Co.  v.  Missouri 
Pac.  Ey.  Co.,  238  Fed.  812,  815. 

8  Hough  J.  in  Conley  v.  Internat. 
Pump  Co.,  237  Fed.  286. 

9  Guaranty  Tr.  Co.  v.  Interna- 
tional Steam  Pump  Co.,  S.  D.  N.  Y., 
quoted  in  C.  C.  A.,  231  Fed.  594, 
595. 

10  Louisville  Trust  Co.  v.  Louis- 
ville N.  A.  &  C.  Ey.  Co.,  174  U.  S. 
674,  19  Sup.  Ct.  827,  43  L.  ed.  113. 


11  Guaranty  Trust  Co.  v.  Missouri 
Pac.  Ey.  Co.,  238  Fed.  812,  818, 
819,  820,  per  Hook,  J.:  "Com- 
plaint is  also  made  that  the  holders 
of  the  bonds  on  four  other  branches 
or  subsidiary  lines  are.  offered  the 
same  or  better  terms,  and  compari- 
sons are  made  between  those  lines 
and  the  Kansas  City  Northwestern 
as  regards  values  of  the  proper- 
ties   and   amounts    of   incumbrance. 


§  310a] 


REORGANIZATIONS 


1563 


A  creditor  cannot  complain  because  stockholders  are  given 
an  interest  in  the  new  cori)oration,  provided  that  his  own  in- 
terest is  preserved  by  the  issuance  of  new  securities  on  equitaV)le 
terms  and  that  with  full  knowledge  of  what  is  intended  he  has 
failed  to  intervene  or  object'  before  the  sale  is  confii-med.*^ 


But   there   are    other   considerations 
then  those.     The  relation  of  a  ])ar- 
tic'ular    railroad    to    the    system    as 
a    whole,    its    value    to    the    system 
on    that    account,    and    the    advisa- 
bility of   including  or  excluding   it, 
in    view    of    the    necessities    of    the 
reorganization,  enter  into  the  prob- 
lem.     A    court    cannot    well    review 
such   matters,   but   must  leave   them 
largely  to  the  business  judgment  of 
those  in  charge.     It  would,  perhaps, 
be    going    too    far    to    say   a   court 
should   not   do   so   unless   in   an   ex- 
ceptional instance  of  fraud  or  gross- 
ly inequitable  discrimination.     Gen- 
erally   the    objection    to    a    plan    of 
reorganization  should  involve  a  defi- 
nite   principle,    and    not    require    a 
long    complicated    investigation    of 
values,    properties,    etc.       »       »       * 
The     situation     reduces     itself     to 
this:   Whetlier  those  conducting  the 
plan    of    reorganization     decide    to 
include    the    Kansas    City,    Nortli- 
western     Kailroad     in     the     mort- 
gage securing   the   series   of   bonds, 
and    after    the    apjdication    of    the 
value  or  proceeds  of  the  mortgaged 
property    determined    by    agreement 
or  by  foreclosure  and  sale  the   de- 
ficiency   should    have    equitable    rec- 
ognition   in    the    plan   as   a   general 
debt.     Tlie  position  of  the  interven- 
ing bondholders  is  a  hard   one.     It 
is    said    the    rolling    stock    on    hand 
when  their  mortgage  was  given  has 
been  used  up  and  that  the  railroad 
is    now    practically    without    equip- 
ment.     Being    investors,    not    opera- 
tors of  railroads,  naturally  they  do 


not  want  it.  On  the  otiier  hand, 
the  undecided  purpose  of  those  in 
charge  of  the  reorganization  ham- 
jiers  them  in  making  the  most  ad- 
vantageous disposition  of  their  in- 
terest to  some  other  railroad  com- 
])any.  The  parties  may  be  able  to 
leaih  an  amicable,  equitable  adjust- 
ment, so  there  is  no  need  to  go 
furtlier  at  this  time." 

12  Northern  Pac.  Ry.  Co.  v.  Boyd, 
228    U.    S.    482,    508,    33    Sup.    Ct. 
.554,   57   L.  ed.  931.     St.  Louis-San 
Francisco     Ry.     Co.     v.     McElvain, 
253    Fed.    123,    133,    per    Sanborn, 
J.:       "There    is    no    moral    turpi- 
tude,   nor    is    there    any    illegality 
in     tiie     making     and     performance 
of  an  agreement  between  the  bond- 
holders   secured    by   mortgages,    the 
stockholders,      and      the      unsecured 
creditors  of  an  insolvent  mortgagor, 
that  there  sliall  be  a  foreclosure  and 
sale   of   the   mortgaged   property   to 
or  for  tlie  benefit  of  a  new  corpora- 
tion   ill    which   all    the   members    of 
the  three  classes  shall  be  permitted 
at    the    option    of   each   of   them    to 
take  the  bonds  or  stock  of  the  new 
corporation    in    substantial    propor- 
tion   to    tlie    respective    ranks    and 
equities   of    the   classes.      Indeed,   a 
foreclosure   and  sale  under  such   an 
agreement   is   the   most   practicable, 
equitalde,  and   beneficial   method   of 
foreclosure  and  sale  of  vast  railroad 
or    otiier    properties    that    has    yet 
been    devised."      See   Inv.   Registry 
Co.  V.  Cliicago  &  M.  El.  R.  Co.,  C.  C 
A.,  212  Fed.  594,  filS,  per  Seaman,  J. 


1566 


RECEIVERS 


[§  310a 


The  price  at  which  the  property  is  bought  by  a  reorganiza- 
tion committee  upon  a  judicial  sale  even  when  it  is  an  upset 
price  fixed  by  the  court  is  not  conclusive  evidence  of  its  value.^' 
When  it  was  shortly  followed  by  a  transfer  in  return  for  new 
securities  the  aggregate  value  of  such  securities  is  considered  to 
be  the  value  of  the  property." 

In  an  early  case  in  the  history  of  reorganizations  the  court 
refused  to  entertain  a  petition  by  the  mortgagee  after  the  re- 
ceivership in  a  foreclosure  suit,  asking  for  permission  to  post- 
pone a  meeting  of  stockholders,^^  but  since  then  the  court  has 
refused  to  permit  a  stockholders  meeting  where  it  was  proposed 
to  adopt  an  inequitable  plan  of  reorganization  and  has  enjoined 
a  vote  in  favor  of  such  plan.^® 


13  Northern  Pae.  Ry.  Co.  v.  Boyd, 
228  U.  S.  482,  508,  33  Sup.  Ct. 
554;  Rospigliosi  v.  N.  O.  M.  &  C.  R. 
Co.,  C.  C.  A.,  237  Fed.  341;  infra, 
§  394d. 

14  Ibid. 

15  Taylor  v.  Phila.  &  Reading  R. 
R.  Co.,  7  Fed.  381. 

16  Grasseli  Chemical  Co.  v.  Aetna 
Explosives  Co.,  C.  C.  A.,  252  Fed. 
456,  458,  459,  461,  462,  per  Man- 
ton,  J. :  "  The  petition  upon  which 
tae  order  appealed  from  was 
granted,  after  asserting  that  Prince 
&  Company,  the  petitioners  are  the 
owners  of  common  stock,  alleges 
that    the    receivership    has    been    a 

c'  ssfnl  one  and  substantially  the 
facts  stated  above  and,  further, 
that  the  plan  of  readjustment  here- 
inafter referred  to  is  sought  to  be 
adopted  by  certain  preferred  stock- 
holders exercising  their  claim  of 
\oting  rights  l)y  reason  of  the  de- 
fault in  the  payment  of  dividends. 
Copy  of  the  readjustment  plan  is 
made  in  the  petition,  and  it  is  al- 
leged that  if  approved  and  adopted, 
it  would  be  in  violation  of  the 
rights  of  the  common  stockholders. 
It  points  out,  further,  that  no  new 


capital  is  to  be  paid  in  or  provided 
for  by  the  readjustment  agency, 
and  that,  for  the  services  of  the 
so-called  readjustment,  they  are  to 
be  paid  $750,000.  The  effect  of 
this,  it  is  said,  will  give  the  bond- 
I'.olders  and  preferred  stockholders 
the  privileges  and  rights  to  which 
they  are  not  entitled  under  the  con- 
tractual obligations  of  the  defend- 
ant, and  will  place  in  control  a 
board  of  directors  who  would  be 
unfavorable  and  unjust  to  the  in- 
terests of  the  common  stockhold- 
ers, and  who  will  assist  in  the  adop- 
tion of  the  readjustment  plan,  with 
the  result  that  great  and  irrepar- 
able injury  will  be  done  the  peti- 
tioner and  a  great  majority  of  the 
common  stockholders.  The  appel- 
lants assert  that  the  District  Judge 
had  no  power  to  interfere  with  the 
stockholders  of  the  defendant  in  the 
election  of  the  directors  at  the  an- 
nual meeting  of  the  company,  and 
it  is  said  that  the  injunction  granted 
by  the  District  Court  is  entirely  out- 
side of  the  scope  of  the  bill  of 
complaint  and  of  the  receivership 
thereunder. 

"  ( 1 )    The  order  appointing  the  re- 


^  ' 


ilOaJ 


REORGANIZATIONS 


1567 


By   their  consent   to  a   plan   of   reorj^anization   which  subse- 
(juently  failed  and  which   recognized  the  separate  existence  of 


ecivers  placed  the  corporation  in 
the  custody  and  control  of  tlio  court. 
It  jthiced  the  receivers  under  the 
admonition,  direction  and  guidance 
of  the  .court.  The  court  possesses 
jurisdiction  over  the  corporation  as 
well  as  over  the  property  of  the 
corporation  and  it  has  complete 
power  to  deal  with  either,  and  it  is 
essential  tliat  it  should  have,  for 
it  could  not  control  the  property 
without  the  power  to  control  the 
corporation.  The  appointment  of 
the  receiver  supersedes  the  power 
of  the  directors  to  carry  on  the 
business  of  the  corporation,  and  the 
receivers  take  possession  of  the 
corporation,  its  books,  its  records, 
and  assets.  Indeed,  it  is  often  the 
custom  for  courts  in  equity  in  an 
order  appointing  the  receiver,  to 
expressly  restrain  the  corporation 
and  its  oflScers  from  exercising  any 
of  the  privileges  or  franchises  of 
the  corporation  until  the  further 
order  of  the  court.  The  court's 
power  to  take  from  the  directors 
their  rij^lit  to  direct  can  also,  while 
in  control,  restrain  action  by  the 
stockholders,  wlien  it  deems  it  for 
the  best  interests  of  all  concerned 
to  do  so."  *  *  *  "(4)  Waa 
there  justification  therefor  under 
the  circumstances  disclosed  here? 
It  is  claimed  that  at  the  meeting 
a  board  of  directors  was  to  be 
elected,  which  would  permit  the  con- 
trol of  the  cor])orntion  to  pass  in- 
to the  hands  of  tlie  preferred  stock- 
holders. It  is  said  that  they  rep- 
resent the  same  grouj)  of  men  who 
0  '-'i  niimaged  the  property  as  to 
result  in  a  receivership.  At  this 
t'me  there  appeals  to  be  no  refpiire- 


ment  for  new  capital,  nor  is  any 
offered  by  the  plan  of  readjust- 
ment. The  projierty  is  being  suc- 
cessfully managed  by  the  receiv- 
ers; it  has  very  profitable  con- 
tracts, and  is,  or  will  very  shortly, 
be  able  to  pay  all  its  indebtedness, 
including  the  bonded  indebtedness, 
if  need  be.  It  can  pay  the  arrears 
of  dividends  on  the  preferred  stock, 
and  may  retire  the  j)referred  stock. 
If  the  dividends  are  paid,  the  right 
of  the  preferred  stock  to  vote  on 
the  basis  of  nine  for  one  is  elimi- 
nated, and,  when  a  meeting  is  held 
the  business  jioli<-y  of  the  corpora- 
tion can  be  determined  by  the  will 
of  the  majority  of  common  stock- 
holders. Therefore,  the  right  of  the 
preferred  stockholders  to  vote  be- 
ing but  temporary,  with  every  pros- 
pect of  the  common  stockholders 
regaining  control  of  the  corpora- 
tion, the  court  should  not  lend  its 
aid  nor  permit  a  group  of  preferred 
stockholders  electing  a  board  of  di- 
rectors who  would  permit  this  plan 
of  readjustment  to  be  adopted.  Al- 
though it  is  not  admitted  by  the 
appellants  that  it  is  the  intention 
to  vote  ujion  tlie  readjustment  plan 
at  this  meeting,  the  fact  is  evident 
that    such   is   the   plain   intention. 

' '  On  their  face,  the  bonds  do  not 
mature  until  1945.  The  plan  of 
readjustment  provides  for  their 
payment  at  an  earlier  period.  These 
bonds  are  largely  held  by  the  own- 
ers of  the  preferred  stock,  both  of 
which  securities  were  obtained  as 
part  of  the  purchase  price  for 
plants,  which  were  sold  to  or  con- 
solidated with  the  defendant  cor- 
poration   at    the    time    of    the    con- 


1568 


RECEIVERS 


[§  310a 


another  corporation  by  providing  that  it  should  receive  all  the 
stock  of  the  reorganized  company,  the  bond  holders  of  the  in- 
solvent were  estopped  from  holding  the  other  company  liable 
for  its  debts  upon  the  ground  that  both  were  practically  the 
same  corporation  when  the  debts  were  incurred.^"' 

A  stockholder  who,  in  good  faith,  asks  for  an  examination 
of  the  books,  in  order  to  enable  him  to  determine  whether  a 
proposed  plan  of  reorganization  is  desirable,  should  be  accorded 
such  inspection  under  proper  regulations  as  to  time  and  cir- 
cumstances, so  as  not  to  interfere  either  with  the  transaction  of 
the  receiver's  duties  or  with  the  inspection  of  other  stock- 
holders.^* 


solidation.  The  plan  further  created 
a  retirement  provision  for  the  pre- 
ferred stock,  which  is  not  only  a 
deprivation  of  the  common  stock- 
holders' rights,  but  it  would  seem 
is  injurious  to  the  preferred  stock- 
holders as  well.  It  creates  a  vot- 
ing trust  of  the  common  stock,  and 
therefore  deprives  the  common 
stockholders  of  the  control  of  the 
company.  It  leaves  the  future  of 
the  corporation  to  a  new  company 
and,  without  apparent  limitation, 
places  it  in  the  hands  of  readjust- 
ment managers  with  unrestricted 
power  given  to  issue  and  dispose  of 
new  securities,  and  grants  them  an 
allowance  of  $750,000  for  their 
services.  The  entire  plan  means  a 
large  and  unnecessary  expense,  and 
reduces  the  cash  assets  of  the  com- 
pany, which  might  again  result  in 
another  period  of  financial  embar- 
rassment. In  our  opinion  the  com- 
plaint of  the  common  stockholders 
is  fully  justified.  The  court  be- 
low, in  the  exei-cise  of  its  obliga- 
tion to  the  common  stockholders 
and  all  others  interested,  might 
well,  in  its  equitable  protection, 
have  granted  the  order  appealed 
from    upon    its    disapj)roval    of    the 


same.  The  cause  pursued  by  the 
court  below  was  well  within  its 
power.  The  original  intention  of 
the  corporation  and  the  stockhold- 
ers, as  evidenced  by  its  charter, 
giving  no  right  to  vote  to  the  pre- 
ferred stockholders,  except  as  above 
indicated,  indicates  the  right  of  the 
common  stockholders  to  exercise 
control  and  management  of  the  cor- 
poration. 

"From  the  above  indications, 
when  the  deferred  dividends  are 
paid  out  of  the  surplus  profits, 
which  are  very  rapidly  accumulat- 
ing, the  property  of  the  corpora- 
tion and  the  control  thereof  will 
pass  to  the  common  stockholders, 
where  it  was  when  the  court  took 
possession  of  the  property,  and  with 
this  course  no  injustice  will  be 
visited  upon  any  of  the  interested 
parties. ' ' 

17  N.  Y.  Tr.  Co.  v.  Carpenter,  C. 
C.  A.,  250  Fed.  668. 

18  Chable  v.  Nicaragua  Canal 
Constr.  Co.,  59  Fed.  846.  As  to  the 
authority  of  a  reorganization  com- 
mittee to  create  liens  or  to  pledge 
the  assets,  see  Titus  v.  U.  S.  Smelt- 
ing Eef.  &  Min.  Expl.  Co.,  231  Fed. 
205. 


§311] 


LITIGATION  BY  RECEIVERS 


1569 


§311.  Litigation  by  receivers.  The  causes  of  action  which 
a  receiver  can  cjiroive  arc  oi  two  kinds,— tJio.se  which  belong 
to  the  estate  of  which  he  has  cliarj,'c  before  it  was  entrusted 
to  him,  and  those  which  have  acci-ued  since  his  appointment. 
As  has  been  said  before,  he  cannot  sue  ui>on  either  without  tlie 
leave  of  the  court  which  api)ointe(l  liim.i 

A  suit  upon  a  cau.se  of  action  wliicii  liclongcd  fo  the  estate 
before  his  appointment  is  brought  in  the  name  of  the  legal  owner 
of  the  estate;  2  unless,  as  is  not  uncommon,  the  order  authorizes 
the  receiver  to  sue  in  his  own  nanie.^  In  the  former  case,  the 
person  whose  name  is  used  is  indemnified  out  of  the  fund  for 
all  co.sts  to  which  he  is  thereby  made  liable.* 

It  has  been  held  that  a  receiver  cannot  sue  in  his  own  luime 
for  the  infringement  of  a  patent  until  the  court  has  compelled 
an  assignment  of  the  patent  ta  him.s  Where  there  are  dif- 
ferent claimants  to  shares  in  a  recovery  by  the  receiver  and 
there  is  doubt  as  to  which  has  the  prior  equity,  after  payment 
of  his  expenses,  the  fund   will  be  apportioned  between  them.^ 

Receivers  of  corporations  are  usually  authorized  to  sue  and 
defend  in  the  name  of  the  corporation.'  An  order  of  ancillary 
appointment,  giving  the  receiver  all  the  powers  described  in  the 
order  appointing  him,  in  the  court  of  primary  jurisdiction, 
which  had  authorized  him  to  institute  actions  or  suits  in  any 
court  for  the  recovery  of  any  estate,  property  or  judgment  ex- 


§  311.  1  Wynne  v.  Lord  New- 
borough,  1  Ves,  Jr.  164;  s.  c,  3 
Brown,  Ch.  C.  88;  Green  v.  Win- 
ter, 1   .T.  Ch.   (N.  Y.)    60. 

2  Dick  V.  Struthers,  25  Fed.  103; 
Dick  V.  Oil  Well  S.  Co.,  25  Fed. 
105;  Danioll's  Ch.  Pr.  (2d  Am.  ed.) 
1977.  This  has  been  held  to  be  the 
proper  practice  before  final  decree. 
Bay  State  Gas  Co.  v.  Eogers,  147 
Fed.  557,  559. 

3  Davis  V.  Gray,  16  Wall.  203,  21 
L.  ed.  447.  See  Frankle  v.  Jackson, 
30  Fed.  398. 

4Danieirs  Ch.  Pr.  (2d  Am.  cd.) 
1991. 

6  Ball   V.   Coker,   168   Fed.   304. 
6  Pennsylvania  Steel  Co.  v.  N.  Y. 


City    Ey.    Co.,    C.    C.    A.,    198    Fed. 
778. 

7  Frankle  v.  Jackson,  30  Fed 
398;  Davis  v.  Gray,  16  Wall.  203, 
21  L.  ed.  447;  Harland  v.  B.  &  M. 
Tel.  Co.,  33  Fed.  199;  Hale  v.  Har- 
den, 89  Fed.  283,  287.  Cf .  Wilder 
V.  New  Orleans,  C.  C.  A.,  87  Fed. 
843;  Braddock  Br.  Co.  v.  Pfaudler 
V.  M.  Co.,  C.  C.  A.,  106  Fed.  604. 
T^nfair  trade  may  be  enjoined  at 
the  suit  of  a  receiver  authorized  to 
carry  on  a  business.  Dixon  v. 
Dixon,  Ch.  D.  89  L.  T.  272.  Harv. 
L.  Eev.  xvii,  196. 


1570 


RECEIVERS 


[§311 


isting  in  favor  of  the  corporation,  gives  him  the  right  to  sue  in 
the  name  of  the  corporation  to  recover  unla\^ful  profits  made 
by  a  director  of  the  same.^  His  appointment  cannot  be  at- 
tacked collaterally  when  the  court  acted  within  its  jurisdiction.*' 
Costs  recovered  against  a  receiver  in  an  action  brought  by  him 
in  his  official  capacity,  are  entitled  upon  the  distribution  of 
the  fund  to  a  priority  over  claims  that  existed  against  it  before 
the  receiver's  appointment.® 

In  the  conduct  of  litigation,  as  in  every  other  proceeding 
by  him,  a  receiver  is  under  the  constant  supervision  of  the 
court.^°  He  is  not  bound  b}^  a  stipulation  which  is  not  advan- 
tageous to  the  estate,  made  by  himself  or  his  counsel  without 
the  sanction  of  the  court. ^^  He  cannot  consent  to  a  compromise 
or  settlement  without  the  consent  of  the  court.*^     A  receiver 


8  Bay  State  Gas  Co.  v.  Eogers, 
147  Fed.  557. 

i^Be  Benwood  Brewing  Co.,  202 
Fed.  326. 

9  Camp  V.  Eeeeivers  Niagara 
Bank,  2  Paige  (N.  Y.)  283;  Col- 
umbian Ins.  Co.  V.  Stevens,  37  N. 
Y.  536;  Locke  v.  Covert,  42  Hun 
(49  N.  Y.  S.  C.  E.)   484. 

10  Van  Dyek  v.  McQuade,  85  N. 
Y.  616;  McEvers  v.  Lawrence,  Hoff. 
Ch.   (N.  Y.)  175. 

11  Van  Dyck  v.  McQuade,  85  N.  Y. 
616;  Piatt  v.  Phila.  &  E.  E.  Co., 
115  Fed.  842.  Cf.  Vance  v.  Eoyal 
C.  Mfg.  Co.,  82  Fed.  251;  Central 
Tr.  Co.  V.  Worcester  Cycle  Mfg.  Co., 
134  Fed.  659;  where  such  a  stipula- 
tion was  enforced.  A  stipulation 
by  the  receiver  of  a  corporation,  to 
enter  its  appearance  in  a  suit 
brought  against  it,  does  not  bind 
him  to  enter  his  own  appearance  as 
receiver.  Be  Muncie  Pulp  Co.,  151 
Fed.  732,  733.  Li  the  absence  of  a 
seasonable  and  well  founded  objec- 
tion, a  stipulation  made  by  receiv- 
ers of  an  insolvent  corporation 
liinds     its     creditors.       Bobinson     v. 


Mutual   Eeserve   Life   Ins.   Co.,   182 
Fed.  850. 

12  Westwater  v.  Murray,  C.  C.  A., 
245  Fed.  427.  There  is  an  extraor- 
dinary decision  by  Mayer,  J.,  hold- 
ing that  a  receiver  would  not  be 
authorized  to  settle  with  a  claimant 
who  had  retained  an  attorney  to 
collect  a  claim  upon  a  contingent 
fee  of  fifty  per  cent.  The  learned 
judge  without  citing  any  statute  or 
precedent  thus  penalized  litigants 
who  were  citizens  of  the  State  of 
New  York  and  had  made  contracts 
authorized  by  the  law  established 
by  the  statutes  and  decisions  of  that 
State.  Be  Fitzsimmons,  174  N.  Y. 
15;  Morehouse  v.  Bkln.  Heights  Ey. 
Co.,  185  N.  Y.  520;  Eansom  v.  Cut- 
ting, 188  N.  Y.  447;  and  by  the  de- 
cision of  one  of  his  judicial  col- 
leagues, Byan  v.  Phila.  &  Eeading 
Coal  &  Iron  Co.,  189  Fed.  253,  255. 
The  receiver  may  be  authorized  to 
earry  out  a  contract  for  the  settle- 
ment of  a  death  claim  made  by  the 
corporation  before  his  appointment 
and  to  pay  the  claimant  the  agreed 
amount.  Westwater  t.  Murray,  C. 
C.   A.,  245  Fed.  427. 


§311] 


LITIGATION  BY  RECEIVERS 


l.")?! 


is  bound  by  an  admission  in  the  litigation  made  in  good  faith 
by  the  corporation  before  his  appointment.^'  He  is  not  bound 
by  a  promise  of  his  own  made  before  his  appointment.^*  He 
cannot  waive  a  defense  on  the  merits.^*  He  cainiot  allow  a  set- 
off not  authorized  by  law.^^  A  receiver  may  waive  service  of 
process  and  an  objection  to  tlie  jurisdiction  founded  upon  res- 
idence.*' He  may  be  allowed  to  discontinue  without  costs  an 
action  honestl}'  but  erroneously  begun  by  him.*'  The  court  will 
not  direct  its  receiver  to  dismiss  an  ejectment  suit  brought  by 
him,  except  on  clear  proof  that  it  is  impossible  for  him  to  suc- 
ceed.** 

The  rights  of  a  receiver  are  in  general  no  greater  than  those 
of  the  person  whose  estate  he  holds. ^°  Thus,  a  receiver  ol"  an 
insolvent  corporation  appointed  in  a  creditor's  suit  cannot  "en- 
force a  collateral  obligation  given  to  a  creditor  or  to  a  body  of 
creditors  by  a  third  person  for  the  payment  of  the  debts  of  the 
insolvent,"^*  for  example  a  statutory  liability  of  stockholders 
and  creditors.^''    He  may  sue  to  recover  damages  caused  by  the 


13  Perry  v.  Godbe,  82  Fed.  141. 

14  Stanton  v.  Ala.  &  C.  R.  Co.,  31 
Fed.  585. 

16  McEvers  v.  Lawrence,  Hoffman 
Ch.  (N.  Y.)  172;  Keiley  v.  Dusen- 
bury,  10  J.  &  S.  (N.  Y.  Super.  Ct.) 
2.'}8;  s.  c,  77  N.  Y.  597;  Van  Dyck 
V.  McQuade,  85  N.  Y.  616. 

16  Van  Dyck  v.  McQuade,  85  N. 
Y.  616.  Cf.  Central  Tr.  Co.  v. 
Clark,  C.  C.  A.,  81  Fed.  269. 

17Whiteomb  v.  Hooper,  C.  C.  A., 
81  Fed.  946.  It  was  held  that  a 
receiver  who  had  removed  an  ac- 
tion brouglit  against  him  in  a  State 
court  could  not  afterwards  object 
that  the  Federal  court  had  not  ac- 
quired jurisdictidfl;  Baggs  v.  Mar- 
tin, 179  U.  S.  206,  45  L.  ed.  155; 
but  that  hi.s  appearance  and  filing 
a  motion  to  quash  an  attachment 
in  the  State  court,  without  leave 
of  the  Federal  court,  did  not  ai- 
fect    the    prior    jurisdiction    of    the 


Circuit  Court  of  the  United  States. 
Memphis  Sav.  Bank  v.  Houchens, 
C.  C.  A.,  115  Fed.  96,  112.  See 
§§  169,    170,   supra. 

18  St.  John  v.  Denison,  9  How. 
Pr.  (N.  Y.)  343;  Eeeder  v.  Seely, 
4  Cowen,  548;  Arnoux  v.  Stein- 
l.renncr,  1  Paige  (N.  Y.)  82. 

19  Pakradooni  v.  Storey  Cotton 
Co.,  1.11   Fed.  607. 

20  Jacobson  v.  Allen,  12  Fed.  454, 
457.  But  see  Hart  v.  Barney  &  S. 
Mfg.  Co.,  7  Fed.  543;  Hollander 
V.  Heaslip,  C.  C.  A.,  222  Fed.  808, 
809. 

21  Wallace,  J.,  in  Jacobson  v.  Al- 
len,  12   Fed.  454. 

22  Jaiobson  v.  Allen,  12  Fed.  454. 
A  complaint  in  such  an  action  was 
held  not  to  be  bad  for  uncertainty 
because  it  did  not  show  whether 
the  suit  was  based  on  a  statute  or 
upon  an  agreement  made  to  define 
a    statutory     liability.       French     v. 


1572 


RECEIVERS 


[§311 


fraudulent  or  negligent  conduct  of  directors,^'  to  collect  an  un- 
paid stock  subscription,^*  and  to  set  aside  a  fraudulent  trans- 
action, by  which  stock  was  cancelled  in  return  for  the  delivery  to 
the  stockholder  of  the  property.^^  The  receiver  of  an  insolvent 
corporation  represents  not  only  the  company  but  also  creditors 
and  stockholders,  and  in  his  character  as  trustee  for  the  latter, 
he  may  disafftrm  and  maintain  an  action  as  receiver  to  set  aside 
illegal'  or  fraudulent  transfers  of  the  property  of  the  corpo- 
ration made  by  its  agents  or  officers,  or  to  recover  its  funds  or 
securities  invested  or  misapplied.^^ 

He  may  sue  to  restrain  the  collection  of  a  judgment  obtained  by 
fraud  which  has  been  affirmed  on  appeal  although  the  insolvent 
has  executed  a  bond  to  obtain  a  supersedeas.^'  He  may  prove 
a  claim  against  another  receiver.^s 

The  appointment  of  a  receiver  does  not  interrupt  the  run- 
ning of  the  Statute  of  Limitations.^^ 

The  defendant  to  an  action  by  the  receiver  of  an  insolvent's 
estate  cannot  set  off  claims  against  the  insolvent  which  have 
been  assigned  to  him  since  the  application  for  the  receiver's 
appointment.^' 

Ordinarily,  a  foreign  receiver  cannot  sue  until  he  has  ob- 
tained an  ancillary  appointment ;  ^^  but  he  may  sue  in  a  foreign 
court,  upon  a  judgment  which  he  has  recovered  in  the  court 
that  appointed  him;32  or  to  recover  land  conveyed  to  him  as 

Eq.    155,    158;    Jarobson    v.    Allen, 
128  Fed.  454,  455. 

27  Owen  V.  Clifton,  C.  C.  A.,  232 
Fed.  i;!6.    See  §  310,  svpra. 

28  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  205  Fed.  99.  See 
§  310a,  mpra. 

29  Houston  Oil  Co.  v.  Dowden,  C. 
C.  A.,  202  Fed.  714. 

30  In  re  Van  Allen,  37  Barb.  (N. 
Y.)  225,  231;  Van  Dyck  v.  Quade, 
85  N.  Y.  616;  City  of  Shelbyville, 
Ky.  V.  Glover,  C.  C.  A.,  184  Fed. 
234. 

31  Booth  V.  Clark,  17  How.  322, 
15  L.  ed.  664,  svpra,  §93. 

32  Wilkinson  v.  Culver,  25  Fed. 
639. 


Buseh,  189  Fed.  480;  Freeman  v. 
Jac-kson,  227  Fed.  688;  Wood  v. 
Noyes,  C.  C.  A.,  245  Fed.  742. 

83  Bay  State  Oas  Co.  v.  Eogers, 
147  Fed.  557. 

24  Kirkpatriok  v.  Am.  Alkali  Co., 
135  Fed.  230. 

26  Davis  v.  Gray,  16  Wall.  203, 
21  L.  ed.  447;  Aldrieh  v.  Gray,  C, 
C.  A.,  147  Fed.  453;  T.  L.  Smith 
Co.  V.  Orr,  C.  C.  A.,  224  Fed.  71; 
Drennen  v.  Southern  States  Fire  Ins. 
Co.,  C.  C.  A.,  252  Fed.  776. 

26  Attorney  General  v.  Guard- 
ian M.  L.  Ins.  Co.,  77  N.  Y.  272, 
275;  Gillet  v.  Mooly,  3  N.  Y.  479, 
488 ;  Talmadge  v.  Pell,  7  N.  Y.  328 ; 
Whittlesey  v.  Delauey,  73  N.  Y.  571; 
National  T.  Co,  v.  Miller,  33  N.  J. 


§  311]  LITIGATION  BY  RECEIVERS  17)~:i 

receiver.33  He  can  also  do  so  when  he  has  received  a  voluntary 
assignment  of  the  assets  of  the  insolvent,^*  or  when  a  statute 
vests  him  with  the  title  to  the  same.^s  In  a  court  that  has  ap- 
pointed an  ancillary  receiver  it  will  be  presumed,  in  the  absence 
of  allegations  to  the  contrary,  that  a  suit  there  instituted  is 
brought  in  his  ancillary  capacity.^^  A  substituted  trustee  can, 
however,  sue  in  a  foreign  jurisdiction,  even  though  the  trial 
court  that  appointed  him  required  him  to  give  a  l)Oiul  and  to 
account  to  itself  in  the  same  manner  as  a  receiver.^'  It  seems 
that  a  receiver  ppointed  by  a  State  court  can  sue  in  the  Federal 
court  in  the  saL  3  district.^* 

The  appointment  of  a  receiver,  in  a  jurisdiction  where  its 
only  place  of  business  and  all  its  tangible  assets  are  located, 
was  held  to  prevent  a  suit  brought  there  by  a  receiver  subse- 
quently appointed  in  the  State  of  its  incorporation  although 
the  latter  receiver  sued  before  the  former.^^ 

A  receiver  is  especially  favored  in  the  enforcement  of  causes 
of  action  arising  after  his  appointment.  He  can,  upon  motion 
or  petition  in  the  suit  wherein  he  is  appointed,  obtain  injunc- 
tions to  prevent  disobedience  to  contracts  made  with  him,*®  or 
prevent  interference  with  property  in  his  possession,*^  whether 
the  person  enjoined  is  a  party  to  the  suit  or  not,  even  if  he  be 
a  State  officer;  for  example,  a  tax  collect or,*^  or  members  of  a 

33  Oliver  v.  Clarke,  C.  C.  A.,  106  41  Angel  v.  Smith,  9  Yes.  335; 
'^cfi-  402.  Lake    Shore    &    M.    S.    Ry.    Co.    v. 

34  Hawkins  v.  Glenn,  131  U.  S.  Felton,  C.  C.  A.,  103  Fed.  227.  In 
319,  33  L.  ed.  184;  Lewis  v.  Clark,  Brady  v.  South  Shore  Traction  Co., 
C.  C.  A.,  129  Fed.  570.  197    Fed.    669,    an    injunction    was 

36  Converse    v.    Hears,    162    Fed.  granted    against    competition    upon 

767;   supra,  §93.  niunicipal   car   tracks,   to   use   which 

36  Sullivan  v.  Sheehan,  89  Fed.  the  corporation  in  the  hands  of  the 
247.  receiver  had  a  license  that  was  not 

37  Glenn  v.  Soule,  22  Fed-  417;  exclusive,  through  the  operation  of 
Holmes  v.  Sherwood,  16  Fed.  725;  cars,  charging  lower  fares  than 
S.  C,  3  McCarthy,  405.  Cf.  Hale  v.  tliose  charged  by  the  receivers. 
Hardin,    89    Fed.    283,    287,    288.  when   it   was  claimed  that   the  rival 

38  Porter  v.  Sabin,  149  U.  S.  com|iniiy  had  no  ])0wer  to  use  the 
473,  37  L.  ed.  815;  Hegewich  v.  Sil-  road. 

ver,  140  N,  Y.  414.     But  see  Olney  42  In  re   Tyler 's  Petition,  149  U. 

v.  Tanner,  10  Fed.  101.  S.    164,    'M    L.    ed.    689;    Ex    parte 

39  Lively  v.  Picton,  C.  C.  A.,  218  Ch.-nnberlain.  55  Fed.  704;  Ex  parte 
Fed.    401.  Hui<lekoi)er,  55  Fed.  709;   Ledoux  v. 

40  Walton  v.  Johnson,  15  Sim.  .'.52.  La  Bee,  83  Fed.  761.     City  of  Shel- 

Fed.  Prac.  Vol.  11—29 


1574 


RECEIVERS 


[§311 


State  commission  which  has  illegally  reduced  the  compensation 
to  be  charged  for  a  public  service ;  *^  or  he  may  seek  this  relief 
b}^  an  original  bill.** 

After  a  sale  by  the  receiver  the  court  loses  jurisdiction  to 
protect  the  purchaser  except  to  the  extent  required  to  complete 
the  sale  and  deliver  possession.*^ 

In  nearly  every  case,  interference  with  a  receiver  in  the  dis- 
charge of  his  duties  is  a  contempt  of  court,  even  when  no  in- 
junction expressly  forbidding  it  has  been  issued.*^  For  example, 
striking  laborers  have  been  adjudged  guilty  of  contempt  for 
attempting  to  prevent  employees  of  a  receiver  of  a  railroad 
from   working   for  him.*^     The   court   will   not   enjoin  the   em- 


•  lyville  V.  Glover,  C.  C.  A.,  184  Fed. 
'.M.  A  sale  for  taxes  without  leave 
of  the  court  is  void.  Va.  T.  &  C. 
Steel  &  I.  Co.  V.  Bristol  Land  Co., 
88  Fed.  134.  A  valid  tax  upon  the 
assets  is,  it  seems,  a  prior  lien  after 
the  judicial  costs.  Ledoux  v.  La 
Bee,  83  Fed.  761. 

43  Gas  &  EI.  Stec.  Co.  v.  Mon.  & 
El.  Tr.  Corp.,  C.  C.  A.,  (2d  Ct.), 
1920. 

44  Landon  v.  Public  Utilities  Com- 
mission, 234  Fed.  1.52,  approved  on 
this  point  but  reversed,  249  U.  S. 
236. 

45  Brady  v.  South  Shore  Traction 
Co.,  206  Fed.   336. 

46  Thompson  v.  Scott,  4  Dill.  508; 
Davis  V.  Gray,  16  Wall.  203,  218, 
21  L.  ed.  447,  4.52;  Eoyal  Tr.  Co.  v. 
Washburn  B.  &  L.  Ry.  Co.,  113  Fed. 
531;   infra,  §428. 

47Secor  v.  Toledo,  P.  &  W.  E. 
Co.,  7  Biss.  513;  King  v.  Ohio  & 
M.  Ey.  Co.,  7  Biss.  529;  In  re  Big- 
gins, 27  Fed.  443.  "If  the  testi- 
mony makes  it  clear  that  when 
these  parties  went  in  such  numbers, 
and  conducted  themselves  in  such  a 
way,  that  while  tliey  simply  said, 
*  Please  get  off  this  engine, '  or  '  We 
want  you  to  get  off  this  engine,' 
they    intended   to   overawe, — intend- 


ed,   by    the    demonstrations    which 
they    made,    to    impress    upon    the 
minds   of   the    engineers   and   train- 
men   that    personal    prudence    com- 
pelled   them    to    leave, — why,    then 
tlie    government    has    made    out    its 
case.     As  my  brother  Treat  said  in 
a   similar  case,  that  we  had  before 
us    in    St.    Loius,    a   request,    under 
these     circumstances,     is     a    threat. 
Every   sensible   man   knows  what  it 
means,    and    courts    are    bound    to 
look  at   things  just  as  they  are,  to 
pass  upon  facts  just  as  they  are  de- 
veloped, to  treat  tlie  conduct  of  men 
just  as  it  is,  and  to  impute  to  them 
that  intention  which  their  acts  and 
their  conduct  disclose  was  their  in- 
tention."     Brewer,    J.,    U.    S.    v. 
Kane,  23  Fed.  748,  751,  citing  In  re 
Doolittle,  23  Fed.  544,  548.     And  in 
another   case   the   same   judge   said: 
' '  Now,  if  a  party  engaged  in  a  law- 
ful  undertaking   unintentionally    in- 
terferes with  some  of  the  officers  of 
this    court,    and    obstructs    them    in 
the   discharge    of   their   duties,   this 
court   is  not  tenacious  of  any  mere 
prerogative,  and  would  let  such  ac- 
tion   pass    almost    without    notice; 
but    where    parties    are    engaged    in 
that    which    is    of    itself    unlawful, 
in   doing   that   which   they   have   no 


§311] 


LITIGATION  BY  RECEIVERS 


157.) 


ployees  of  a  receiver  from  a  peae<'al)le  strike,  unaccompanied 
by  violence  or  intimidation.**  lie  can  compel,  l»y  a  summary 
proceeding  in  the  court  that  appointed  liim  the  delivery  of 
money  or  other  property  of  tlie  estate  in  the  possession  of  a 
stranger  to  the  suit,  who  claims  no  right  to  its  possessio)!,*^ 
or  who  acc^uired  the  same  sul)sc<pient  to  his  ai)pointment ;  even 
though  the  stranger  claims  a  lien  thereupon  adverse  to  the  re- 
ceiver.^°  Where  a  marshal  had  levied  on  property  previoush' 
in  the  possession  of  a  recei\cr  of  a  State  court,  the  receiver  was 
allowed  to  proceed  by  a  rule  to  lake  the  possession  of  the  same, 
although  the  regular  i)i-aclice  was  an  intervention  by  him.^^ 
It  has  been  held,  however,  that  the  court  should  not  enjoin  a 
stranger  to  the  suit  who  is  a  citizen  of  another  State  from  en- 
forcing legal  process  in  his  own  State  against  land  there  in  the 
possession  of  the  receiver.^^ 

It  has  been  held  that  a  foreign  receiver  cannot  sue  in  the 
name  of  a  corporation  in  another  district,  where  the  object  is 
to  remove  the  funds  collected  to  the  court  that  appointed  him 
for  administration.^^  A  receiver  must  proceed  by  an  origiiuil 
suit  to  recover  property-  held  by  a  stranger  to  the  litigation 
under  a  claim  of  title. ^*     And   he  eannot  ordinarilv  maintain 


right  to  do,  and  in  so  doing  oh 
struct  the  officers  of  the  court  al- 
though intending  no  contempt, 
that  is  a  very  oiffcrent  thing." 
Brewer,  J.,  In  re  Doolittle,  23  Fed. 
544,   548. 

48  Arthur  v.  Oakcs,  C.  C.  A.,  25 
L.E.A.  414,  63  Fed.  310;  svpra, 
§  276.  It  has  been  held  tliat  order- 
ing the  employees  of  a  receiver  to 
strike  is  a  violatioii  of  an  order  of 
the  court  directing  the  receiver  to 
operate  a  manufacturing  plant.  IT. 
S    v.  Weber,   114   Fed.  950. 

49  Miles  v.  New  So.  B.  &  L.  Ass  'n, 
95  Fed.  919. 

60  Horn  v.  Pere  Marquette  R.  Co., 
101  Fed.  626. 

51  Remington  P.  Co.  v.  Louisiana 
Pr.  &  Pub.  Co.,  56  Fed.  287. 

62  Schindclholz  v.  Cullum,  C.  C. 
A.,  55  Fed.  885. 


53  Great  Western  Min.  &  iWg.  Co, 
V.  Harris,  198  U.  S.  561,  25  Sup.  Ct. 
770,  49  L.  cd.  1163;  Fairview  Fluor 
Spar  &  Lead  Co.  v.  Ulrieh,  C.  C.  A., 
192   Fed.    894. 

54  Davis  v..  Gray,  16  Wall.  203, 
218,  21  L.  ed.  447,  452;  Parker  v. 
Browning,  8  Paige  (X.  Y.)  388,  35 
Am.  Dec.  717;  Noc  v.  Gibson,  7 
Paige  (X.  Y.)  513.  Or  to  collect  a 
claim  of  the  corjioration.  Eau 
Claire  v.  Payson,  C.  C.  A.,  107  Fed. 
557.  A  receiver  cannot  by  petition 
in  the  suit  obtain  an  injunction 
against  unlawful  discrimination  by 
a  railroad  company  which  is  not  a 
])arty  to  the  suit.  Wood  v.  X.  Y.  & 
X.  !•:.  R.  Co.,  61  Fed.  236.  Where  a 
receiver  took  pay  for  corporate 
jiroperty  in  stock  which  he  kept 
himself,  crediting  his  fund  with 
price    in    cash,    held    that    he    could 


1576 


RECEIVERS 


[§311 


a  bill  in  e(iuity  when  he  has  an  adequate  remedy  at  law,^®  for 
otherwise  the  defendant  would  lose  his  right  to  trial  by  jury.^^ 

After  the  appointment  of  ancillary  receivers  although  no 
issue  has  been  joined  or  final  decree  entered,  the  court  may 
order  the  oral  examination  of  a  person  not  a  party  to  the  suit, 
who,  the  receivers  and  the  complainant  charge,  holds  assets  of 
the  defendant.  Such  an  application  will  not  be  denied  because 
material  allegations  concerning  such  property  are  made  upon 
information  and  belief;  nor  because  the  person  whose  examina- 
tion is  prayed  presents  an  affidavit  positively  denying  that  he 
holds  any  property  of  the  defendant.  It  is  better  practice  to 
require  notice  of  such  an  application  to  be  served  upon  the 
person  whose  examination  is  applied  for.^''^ 

Since  a  proceeding  to  collect  assets  of  an  estate,  whether 
brought  in  personam  to  recover  damages,  or  in  rem,  as  by  re- 
plevin or  ejectment,  is  ancillary  to  the  principal  suit,  a  receiver 
appointed  bj^  a  Federal  court  can  bring  a  suit  for  that  purpose 
in  the  court  of  his  appointment  irrespective  of  the  citizenship 
of  the  parties  or  the  amount  involved.^^  Where  a  Federal  re- 
ceiver had  sued  in  a  State  court,  which  had  the  power  to  en- 
tertain equitable  defenses  in  actions  at  law,  the  Federal  court 
refused  to  direct  him  to  suspend  that  action,  in  order  to  permit 


not  sue  individually  for  fraudulent 
representation  by  the  vendor  of 
the  stock.  Kenedy  v.  Benson,  54 
Fed.   836. 

65  Sewerage  and  Water  Board  of 
New  Orleans  v.  Howard,  C.  C.  A., 
175  Fed.  555;  Eobinson  v.  Mutual 
Eeserve  Life  Ins.  Co.,  175  Fed.  629; 
Whelan  v.  Enterprise  Transfer  Co., 
164  Fed.  95;  Eau  Claire  v.  Payson, 
C.  C.  A.,  109  Fed.  676.  But  see 
Peck  v.  Elliott,  C.  C.  A.,  79  Fed. 
10;  Cockrell  v.  Cooper,  C.  C.  A.,  86 
Fed.  7,  15;  Cunningham  t.  Cleve- 
land, C.  C.  A.,  98  Fed.  657. 

56  Hollander  v.  Heaslip,  C.  C.  A., 
222  Fed.  808. 

67  Bowker  v.  Haight  &  Freese  Co., 
U.  S.  C.  C,  S.  D.  N.  Y.,  June  29, 
1905,  per  Lacombe,  J.  Roger  Foster 
for  receivers  cited  Foster  v.  Towns- 


hend,  68  N.  Y.  203,  208;  Ch.  Ill, 
§10;  Daniell's  Ch.  Pr.,  First  Am. 
ed.  1269,  1270;  Lord  Pelham  v. 
Duchess  of  New  Castle,  3  Swanst. 
290,  n.;  Bird  v.  Littlehales,  3 
Swanst.  300,  n. ;  Dixon  v.  Smith,  1 
Swanst.  457;  Anon.,  6  Ves.  287; 
Angel  V.  Smith,  9  Ves.  336;  Brooks 
V.  Greathead,  1  J.  &  W.  178;  Ham- 
lyn  V.  Lee,  cited  in  Seton  on  De- 
crees, 413;  Johnes  v.  Claughton, 
Jac.  573;  Treadwell  v.  Morrell, 
Chan.  N.  Y.,  Aug.  1829  cited  in 
Hoffman's  Ch.  Pr,  1,  156.  See 
Westlake  v.  Marrin,  176  Fed.  742, 
s.  c,  N.  Y.  L.  J.,  July  7,  1910; 
infra,  §  394. 

68  White  V.  Ewing,  1.59  U.  S.  36, 
40  L.  ed.  67;  Pope  v.  Louisville,  N. 
A.  &  C.  E.  Co.,  173  U.  S.  573,  43 
L.  Ed.  814;  supra,  §§51,  57. 


§  311]  LITIGATION  BY  RECEIVERS  1577 

the  defendant  to  prosecute  a  Federal  suit  in  equity  to  establish 
his  right  to  a  set  off,  although  the  courts  of  the  two  jurisdic- 
tions held  different  views  as  to  the  right  of  set  off  under  the 
facts;  hut  the  Federal  court  stayed  the  suit  before  it  until  the 
State  court  had  disposed  of  the  action  whifh  had  been  there 
brought  before  the  defendant  sued  in  equity .^^ 

A  receiver  of  the  assets  of  an  insolvent  bank  has  no  greater 
right  in  obligations  payable  to  the  bank  than  the  bank  itself.^" 

Except  under  extraordinary  circumstances,  the  court  cannot 
upon  the  petition  of  a  creditor  compel  the  receiver  to  appeal 
at  the  expense  of  the  estate  from  an  order  authorizing  the  pay- 
ment of  a  claim  as  preferred. ^^  Creditors  may  be  authorized 
to  sue,  at  their  own  expense  in  the  receiver's  name,  to  collect 
a  doubtful  claim,  in  the  courts  of  a  foreign  jurisdiction  under 
a  stipulation  that  only  such  creditors  as  are  contributors  shall 
participate  in  the  proceeds  of  the  recovery.®^ 

A  receiver  cannot  sue  out  a  writ  of  error  from  the  Supreme 
Court  of  the  United  States  to  the  judgment  of  a  State  court, 
except  in  a  case  where  that  might  be  done  by  an  individual.^^ 
He  has  the  right  of  appeal  from  an  appealable  order  or  decree 
of  a  Federal  court  which  sustains  a  claim  antagonistic  to  the 
rights  of  both  parties  to  the  suit,  or  antagonistic  to  the  rights 
of  either  party  j  subject  to  the  limitation  that  he  may  not  ques- 
tion any  order  or  decree  which  distributes  burdens,  or  apportions 
rights,  or  distributes  the  estate  in  his  hands  between  the  parties, 
or  any  clause  in  the  order  or  decree  appointing  him,  or  any 
order  or  decree  resting  in  discretion.^* 

It  was  held  that  one  of  three  receivers  may  take  an  appeal 
without  the  consent  of  the  other.^^ 

Permission  to  appeal  at  the  expense  of  the  estate  may  be 
refused  to  a  receiver,  when  the  highest  creditor  is  interested 

69  Frees    v.    John    Shields    Const.  63  Bailsman    v.   Dixon,   173    U.    S. 

Co.,  145  Fed.  1020,  113,  4.3  L.  ed.  633. 

60  Cutler  V.  Fry,  240  Fed.  238.  64  Bosworth    v.    St.    Louis    T.    R. 

eiGrier   v.   Union   Nat.   Life  Ins.  Ass'n,  174  IT.   S.   182,  186,  187,  43 

Co.,  217  Fed.  293.  L.  ed.  941,  942,  943. 

62  Cornell     v.     Nichols     &     Lang-  66  Goodman  Mfg.  Co.  v.  Pittsburg- 

worthy  Mach.  Co.,  C.  C.  A.,  201  Fed.  Buflfalo   Co.,   222   Fed.   144. 
320. 


1578 


RECEIVERS 


[§311 


against  such  an  appeal,^^  and  where  the  question  involved  is 
doubtful,  the  court  may  refuse  such  permission,  unless  creditors 
give  security  for  the  expenses  of  the  appeal,^'  and  may  even 
require  security  for  the  costs  of  the  respondent. ^^  Courts  of 
equity  will  disregard  separate  corporate  existence  only  on  the 
ground  of  agency  or  estoppel,  or  when  justice  is  done.^^ 

He  may  appeal  from  an  order  or  decree  which  affects  his 
personal  rights,  such  as  an  order  which  disallows  his  fees  or 
commissions ;  but  it  seems  that  he  cannot  appeal  from  an  order 
which  rests  in  the  discretion  of  the  court ;  for  example,  an  order 
which  discharges  or  removes  him,  or  directs  him  in  the  adminis- 
tration of  the  estate,  as,  for  example,  to  isvsue  receiver's  certifi- 
cates or  to  make  improvements^"  ''His  right  to  appeal  from 
an  allowance  or  claim  against  the  estate  does  not  necessarilj^ 
fail  when  his  receivership  is  terminated,  to  the  extent  of  sur- 
rendering the  property  in  the  possession  of  the  receiver."'^ 
Upon  an  appeal  in  a  suit  brought  by  him,  in  the  absence  of  any 
Federal  question,  the  jurisdiction  is  considered  as  dependent 
upon  the  difference  of  citizenship  in  the  suit  in  which  he  was 
appointed ;  and  the  judgment  or  decree  of  the  Circuit  Court 
of  Appeals  is  final^^ 

A  receiver  is  presumed  to  represent  all  parties  to  the  suit, 
and  he  cannot  object  because  other  parties  have  no  notice  of  an 
application  duly  served  on  him ;  "^^  although,  of  course,  the  court 
may  listen  to  a  suggestion  of  that  nature  by  him.  No  action 
by  the  directors  or  stockholders  of  a  corporation  after  the  ap- 


66  Cook  V.  Anderson  Food  Co,  (N. 
J.   Ch.),   55  Atl.   1042. 

67  Gay  V.  Hudson  River  El.  Pow- 
er   Co.,    184    Fed.    631. 

68  Ibid. 

69  N.  Y.  Tr.  Co.  v.  Carpenter, 
C.   C.   A.,   250   Fed.   668. 

VOBosworth  v.  St.  Louis  T.  R. 
Ass'n,  174  U.  S,  182,  189,  43  L.  ed. 
941,  944.  An  order  directing  the  re- 
ceiver of  a  railroad  to  construct 
and  maintain  gates  and  other  safe- 
guards at  the  crossing  of  another 
road,  in  accordance  with  a  con- 
tract made  between  two  railroad 
companies,    with   covenants   running 


with  the  land,  is  not  a  decree  for 
specific  performance,  but  merely  an 
interlocutory  order  affecting  the  ad- 
ministration of  the  estate  from 
which  he  cannot  appeal.  Hunt  v. 
111.  Cent.  Co.,  C.  C.  A.,  96  Fed.  644. 
But  see  Felton  v.  Ackerman,  61 
Fed.  225. 

71Bosworth  v.  St.  Louis  T.  R. 
Ass'n,  174  U.  S.  182,  189,  43  L.  ed. 
941,  944. 

72  Pope  V.  Louisville,  N.  A.  &  C. 
Ry.  Co.,  173  II.  S.  573,  43  L.  ed.  814. 

73  McLeod  V.  New  Albany,  C.  C. 
A.,  66  Fed.  378.  As  to  the  right  of 
a    creditor    to    enforce    a    cause    of 


§312] 


DUTIES  OP  RECEIVERS 


1579 


pointment  of  a  receiver  ean  release  a  claim  which   it   owns,'''* 
or  bind  it  by  a  eontraet.'* 

§  312.  Duties  of  receivers.  A  receiver  holds  the  property  of 
which  he  is  given  tlie  care  in  trust  for  all  persons  interested 
therein,  whether  parties  to  the  suit  or  not,^  provided  that  they 
do  not  claim  it  by  a  title  paramount  to  his  own.^  11  is  duties, 
therefore,  are  substantially  those  of  a  trustee,  although  ids 
powers  are  usually  more  limited;  and  the  decisions  concerning 
the  duties  and  liabilities  of  trustees,  executors,  administrators, 
and  assignees  in  bankruptcy  and  insolvency  are  often  of  service 
in  determining  those  of  a  receiver.^ 

A  receiver's  first  duty  after  his  appointment  is  to  take  pos- 
session of  the  property  entrusted  him  by  the  order,  using  all 
the  powers  therein  given  him.*  If  any  of  it  is  under  lease  he 
should  notify  the  tenants  of  his  appointment  and  demand  tliat 
they  attorn  to  him.^ 

Ordinarily  as  soon  as  he  has  obtained  possession  of  all  the 
estate  that  consists  of  personal  property  he  should  make  an 
inventor^'  thereof;^  he  should  investigate  all  pledges  and  mort- 
gages of  an}'  part  of  the  assets  "^  and  cause  the  property  in  his 
hands  to  be  insured  against  fire.*  All  moneys  that  he  receives 
he  should  either  pay  into  court  or  deposit  in  a  bank  to  the  credit 
of  himself  as  receiver,  in  a  separate  account  from  that  for  his 


by  a  receiver,  see 
Laberbee,  C.  C.  A., 
& 


action    owned 
infra,    §  314. 

74  Stewart   v 
185  Fed.  471. 

76  Barker    v.     Southern    Bldg 
Loan  Ass'n,  181  Fed.  636. 

§  312.  1  Davis  v.  Gray,  16  Wall. 
203,  217,  218,  21  L.  ed.  447,  452; 
Central  T.  Co,  v,  Wabash,  St.  L.  & 
P.  Ry.  Co.,  23  Fed.  863;  Hamilton 
V.  David  C.  Beggs  Co.,  171  Fed.  157; 
Keeney  v.  Dominion  Coal  Co.,  225 
Fed.  625. 

2  Davis  V.  Duke  of  Marlborough, 
2  Swanst.  108,  118,  137,  138; 
Georgia  v.  Atlantic  &  G.  R.  Co.,  3 
Woods,  434. 

8  See,  for  example,  Com.  v. 
Franklin   Ins.   Co.,   115   Mass.   278; 


People  V.  National  T.  Co.,  82  N.  Y. 
283. 

4Danieirs  Ch.  Pr.  (2d  Am.  ed.) 
1987. 

SDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1987. 

6  Lewin  on  Trusts  (6th  ed.,  Lon- 
don, 1875),  184;  England  v.  Downs, 
6  Beav.  269.  But  see  infra,  §  321. 
Cf.  Williamson  v.  Wilson,  1  Bland 
(Md.),  418,  436.  But  see  Guaranty 
Tr.  Co.  V.  Met.  St.  Ry.  Co.,  168  Fed. 
937,  aflf'd.  C.  C.  A.,'  177  Fed.  925, 
quoted  infra,  §  394. 

7Wi.se  V.  Williams,  162  Fed.  161. 

8  Tiiompson  v.  Phoenix  Ins.  Co., 
136  U.  S.  287,  293,  34  L.  ed.  408, 
41],  per  Mr.  Justice  Harlan. 


1580 


RECEIVERS 


[§312 


private  deposits.^  In  remitting  money  from  one  place  to  an- 
other, he  may  do  so  by  using  the  ordinary  means,  provided 
that  he  uses  due  eare.^"  He  will  be  personally  liable  for  all 
loss  to  the  estate  caused  by  his  making  any  other  disposition 
of  the  funds  collected  by  him.^^  It  is  advisable  for  a  receiver 
to  take  a  receipt  for  all  sums  of  money  exceeding  twenty  dollars 
paid  out  by  him.  By  so  doing,  and  by  using  such  receipts  as 
vouchers,  he  will  have  less  difficulty  in  passing  his  accounts. ^^ 
A  receiver  should  so  keep  the  estate  in  his  hands  that  it  can 
easily  be  traced,  delivered  up,  or  accounted  for.^^  When  he 
is  carrying  on  a  mercantile  business,  he  must  keep  cost  sheets, 
in  order  that  whether  he  is  making  a  profit  or  loss  may  readily 
be  ascertained.^*  He  should,  at  least  as  often  as  once  a  year, 
account  and  pay  into  court  all  the  money  which  he  has  received, 
together  with  the  profits  thereof,  less  all  necessary  or  authorized 
expenditures,  and  such  compensation  as  the  court  allows  him.^^ 
If  he  receives  a  considerable  sum  of  money  during  the  interval 
between  the  regular  times  for  his  accounting,  it  seems  that  he 
should  apply  to  the  court  for  directions  concerning  its  invest- 
ments ;  ^^  and  in  general,  he  should  apply  for  instructions  when- 
ever any  unexpected  event  occurs  of  which  advantage  may  be 
taken  for  the  benefit  of  the  state,  or  which  necessitates  active 
measures  to  preserve  the  state  from  loss.^'''  He  should  pay  no 
creditor  of  the  estate  without  authority  from  the  court ;  and 
even  an  ex  parte  order  authorizing  such  payment  will  be  no 


9  Salway  v.  Salway,  4  Euss.  60 ; 
s.  c,  2  R.  &  M.  215;  Wren  v.  Kir- 
ton,  11  Ves.  377;  Hinckley  v.  Eail- 
road  Co.,  100  U.  S.  153,  157,  25  L. 
ed.  591,  593.  For  a  ease  where  a 
receiver  was  held  responsible  for 
money  lost  by  the  failure  of  a  bank, 
see  Fikener  v.  Bott,  (Ky.)  47  S. 
W.    251. 

10  Knight  v.  Lord  Plimouth,  3 
Atk.  480;  s.  c,  1  Dickens,  120. 

11  Salway  v.  Salway,  4  Euss.  60 ; 
s.  c,  2  E.  &  M.  215;  Eowth  v.  How- 
ell, 3  Ves.  565. 

12  Eemsen  v.  Eemsen^  2  J.  Ch. 
(N.  Y.)  495,  501. 

13  Williamson  v.  Wilson,  1  Bland 


(Md.),  418;  Hinckley  v.  EaUroad 
Co.,  100  U.  S.  153,  157,  25  L.  ed. 
591,  593;  Atty.  Gen.  v.  North  Am. 
L.  I.  Co.,  89  N.  Y.  94,  107,  108. 

14  Gutterson  &  Gould  v.  Lebanon 
Iron  &  Steel  Co.,  151  Fed.  72. 

15Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1992;  Shaw  v.  Ehodes,  2  Euss.  539. 
See  §319. 

16  Shaw  V.  Ehodes,  2  Euss.  539; 
Hicks  V.  Hicks,  3  Atk.  274;  Earl 
of  Lonsdale  v.  Church,  3  Brown  Ch, 
C.  41. 

17  Shaw  V.  Ehodes,  2  Euss.  539; 
Hicks  V.  Hicks,  3  Atk.  274;  Earl 
of  Lonsdale  v.  Church,  5  Brown  Ch. 
C.  41 ;  mpra,  §  310. 


§312] 


DUTIES  OF  RECEIVERS 


1581 


protection  to  liim  when  granted  npon  the  inaccurate  represen- 
tation that  there  were  sufficient  funds  to  make  the  payments 
without  detriment  to  the  business."  An  application  for  such 
a  paj'ment  was  denied  because  of  the  ine(iuitable  circumstances 
connected  -with  an  assignment  of  a  judgment. ^^ 

He  cannot  act  inequitably,  even  for  the  benefit  of  the  estate ;  ^® 
and  if  money  is  paid  him,  which  in  ecjuity  belongs  to  another, 
he  can  be  compelled  to  pay  the  same  to  its  rightful  proprietor.^i 
Any  profit  which  he  may  make  from  the  estate  belongs  to  the 
finally  successful  party,  or  to  him  to  whom  the  surplus,  after 
the  payment  of  prior  demands,  is  finally  directed  to  be  paid.22 
If  he  uses  the  property  over  which  he  has  been  appointed  in 
his  private  business,  he  must  pay  the  estate  for  its  use,23  and 
it  may  be  charged  to  be  subject  to  a  constructive  trust  after  its 
transfer  by  him  to  one  who  is  not  a  bona  fide  purchaser.^* 

It  is  his  duty  to  exhibit,  to  claimants  against  the  fund,  all 
entries  in  the  books  of  the  corporation,  which  relate  to  their 
respective  claims. ^^  "In  every  case  of  doubt,  it  is  well  for 
a  receiver  to  refrain  from  action  until  he  may  obtain  the  in- 
struction of  the  court,  whose  officer  he  is."  ^^ 

"If  rival  and  discordant  interests  between  the  parties  inter- 
ested in  the  property  produce  conflicting  plans,  upon  whieh 
they  cannot  agree,  it  is  the  receiver's  duty  to  stand  absolutely 
neutral  between  all,  giving  to  no  one  any  preference  or  ad- 
vantage over  the  other,  and  according  equal  facilities  to  every 
stockholder,  Avhether  he  liolds  a  single  share  or  ten  thousand."  2"^ 
It  is  usually  considered  improper  for  a  receiver  to  retain  as  his 
counsel  one  who  has  previously  acted  in  the  suit  for  one  of  the 
parties.28     But   it  is  proper  for  a  receiver  appointed  in  a  suit 


ISGibbs   V.  Davul,   L.   E.   20   Eq. 

37:^. 

19  Investment  Eegistry  v.  Chicago 
&  M.  Electric  Ry.  Co.,  204  Fed.  500. 

ZOSkud  V.  Tillinghast,  C.  C.  A., 
195  Fed.  1. 

21  Whelan  v.  Enterprise  Transp. 
Co.,  175  Fed.  212. 

22  Rtrang  v.  Edson,  C.  C.  A.,  198 
Fed.  8i;5;  infra,  §  :n3.  But  sec 
Whitesides  v.  Lefferty,  3  Humph. 
(Tenn.)  150. 


23  Battaile  v.  Fisher,  36  Miss.  321. 

24  Baker  v.  Schofield,  243  U.  S. 
114;  Ammon-Stivers  Min.  Co.  v. 
Great  Northern  Mining  &  Develop- 
ment Co.,  119  Fed.  377. 

25  Bowker  v.  Haight  &  Freese  Co., 
140  Fed.  796;  si/;wo,  §  310a. 

26  Chable  v.  Nicaragua  C.  C.  Co.. 
50  Fed.  846. 

27  11, id;  supra,  §  310a. 


1S82 


RECEIVERS 


[§312 


brought  by  a  creditor  for  the  satisfaction  of  his  own  debt  alone, 
to  retain  the  attorney  of  the  complainant.^^ 

A  receiver  of  a  railroad  is  a  common  carrier.'*'  He  is  guilty 
of  impropriety,  for  which  he  may  be  removed,  when  he  dis- 
criminates between  different  persons  who  use  the  railway ;  '^ 
and  he  may  be  obliged  to  repay  such  sums  of  money  as  he  has 
exacted  from  shippers  of  freight  by  unlawful  discriminations 
against  them.'^ 

A  receiver  cannot  resign  without  the  permission  of  the  court 
which  appointed  him.'' 

"Whenever  receivers  appointed  by  a  Federal  court  are  in 
the  possession  and  control  of  a  business  of  employers  covered 
by  this  Act,"  carriers  engaged  in  interstate  and  international 
commerce,  except  masters  of  vessels,  "the  employees  of  such  em- 
ployers shall  have  the  right  to  be  heard  through  their  represen- 
tatives in  such  court  upon  all  questions  affecting  the  terms  and 
conditions  of  their  employment;  and  no  reduction  of  wages 
shall  be  made  by  such  receivers  without  the  authority  of  the 
court  therefor,  after  notice  to  such  employees,  said  notice  to  be 
given  not  less  than  twenty  days  before  the  hearing  upon  the 
receivers'  petition  or  application,  and  to  be  posted  upon  all  cus- 
tomary bulletin  boards  along  or  upon  the  railroad  or  in  the 
customary  places  on  the  premises  of  other  employers  covered 
bv  this  Act."'* 


28  Eyckman  v.  Parkins,  5  Paige 
(N.  Y.),  543;  Blair  v.  St.  Louis, 
H.  &  K.  E.  Co.,  20  Fed.  348.  In  one 
ease  the  court  refused  to  allow  the 
receiver  to  retain  a  relative  who  had 
previously  practiced  elsewhere,  and 
had  come  into  the  Circuit  apparently 
for  the  purpose  of  acting  as  counsel 
for  the  receiver.  Blair  v.  St.  Louis, 
H.  &  K.  R.  Co.,  20  Fed  348.  See 
infra,  §  321a. 

29  Shainwald  v.  Lewis,  8  Fed.  878. 
See  Davis  v.  Chattanooga  U.  Ry.  Co., 
65  Fed.  348. 

30  Beers  v.  Wabash,  St.  L.  &  P. 
Ry.  Co.,  34  Fed.  244;  Investment 
Registry  v.  Chicago  &  M.  Electric 
Ry.  Co.,  204  Fed.  500,  see  infra, 
§  313 ;  Rutherford  v.  Union  Pac.  R. 
Co.,  254  Fed.  880. 


31  Handy  v.  Cleveland  &  M.  R. 
Co.,  31  Fed.  689.  See  Missouri  Pac. 
Ry.  Co.  V.  Texas  &  P.  Ry.  Co.,  30 
Fed.  2;  Cutting  v.  Florida  Ry.  & 
Nav.  Co.,  43  Fed.  747.  It  has  been 
said  that  a  contract  between  a  re- 
ceiver of  a  railroad  company  and  a 
shipper  for  the  payment  of  a  rebate 
upon  an  intrastate  shipment,  is  not 
illegal.  Bibber-White  Co.  v.  White 
River  Val.  El.  R.  Co.,  175  Fed.  470. 

32  Cutting  V.  Florida  Ry.  &  Nav. 
Co.,  43  Fed.  747. 

33Danieirs  Ch.  Pr.  (2d  Am.  ed.) 
2002.  See  In  re  Matter  of  Jonea, 
4  Sandf.  Ch.  (N.  Y.)  615. 

34  Act  of  July  15,  1913,  ch.  6,  §  9, 
38  St.  at  L.  107,  Comp.  St.  §  8674. 


312] 


DUTIES  OF  RECEIVERS 


1583 


"Whenever  in  any  ease  pending  in  any  court  of  the  United 
States,  there  sliall  be  a  receiver  or  manager  in  possession  of 
any  property,  such  receiver  or  manager  shall  manage  and 
operate  such  property  according  to  the  requirements  of  the 
valid  laws  of  the  State  in  whicli  such  property  siiall  be  situ- 
ated in  the  same  manner  that  the  owner  or  possessor  thereof 
would  be  bound  to  do  if  in  possession  thereof.  Any  receiver 
or  manager  who  shall  wilfully  violate  the  provisions  of  this 
section  shall  be  fined  not  more  than  three  thousand  dollars  or 

'  '  35 

imprisoned  not  more  than  one  year. 

A  receiver  of  a  railway  including  a  str.-ct  railway  should 
continue  the  operation  of  the  railroad  30  whiU-  the  franchise 
is  in  force  37  But  under  extraordinary  circumstances  the  re- 
ceivers have  been  permitted  by  the  court  to  abandon  and  dis- 
mantle part  of  the  railroad  and  sell  the  wreakage  for  the  bcneht 
of  creditors.38 

The  receiver  of  a  railway  company  cannot  charge  more 
than  the  valid  legal  rate  established  by  the  State  authorities. 
When  however,  the  State  authorities  establish  a  rate  ot  tare 
which' is  illegal  and  so  low,  that  its  enforcement  amounts  to 
a  confiscation  of  the  property  of  the  company,  the  Federal  court 
may  authorize  the  receiver  to  increase  the  fare  in  the^^absence 
of  a  contract  forbidding  the  railway  company  to  do  so. 

35Jud.   Code,    §65,   36   St.   at   L. 
1087,    re-enacting    in    substance    25 
St.  at  L.,  §2,  p.  436;   24  St.  at  L., 
§  2,  p.  554.     But  see  Eoyal  Tr.  Co. 
V.  Washburn  B.  &  I.  R.  By.  Co.,  113 
Fed.    531.      It    has   been    said    that 
a  receiver  is  subject  to  the  Act  of 
March   4,   1907    (34   St.   at  L.   2416 
e.   2939,   Comp.    St.   Supp.    1911,   p. 
1321,   forbidding   a  connmon   carrier 
to    permit    employees    of    a    certain 
class   to   remain    on    duty   for   more 
than  sixteen  consecutive  hours;   but 
that  he  is  ordinarily  not  personally 
liable   for   the  fine   imposed   for   its 
violation    (U.    S.   v.    Ramsey,   C.    C. 
A.,   197   Fed.   144)  ;    and  that   after 
the    appointment    of    a    receiver    of 
an    insolvent   corporation,   the   com- 
pany is  not  liable  to  the  corporation 


Income  Tax.  Fennsylvania  Steel 
Co.  V.  N.  Y.  City  Ry.  Co.,  C.  C.  A., 
198  Fed.  774.  As  to  the  liability 
of  receivers  under  Federal  Statutes, 
see  Erb  v.  Morasch,  177  U.  S.  584, 
44  L.  ed.  897;  U.  S.  v.  DeCoursey, 
82  Fed.  302. 

36  Central  Bank  &  Tr.  Co.  v. 
Greenville   &    W.   R.    Co.,   248   Fed. 

350. 

37  Boisot  V.  Amarillo  St.  Ry.  Co., 

2  14  Fed.  838. 

38  State  of  Iowa  v.  Old  Colony 
Tr.  Co.,  215  Fed.  307;  Central  Bank 
Sc  Tr.  Corporation  v.  Cleveland,  252 

Fed.  530. 

39  Westinghouse  E.  &  Mfg.  Co.  v. 
Binghampton  Ry.  Co.,  255  Fed.  378. 

40  Ibid. 


1584 


EECEIVERS 


[§313 


§  313.  Liability  of  receivers.  The  liability  of  a  receiver  is 
iu  mauy  but  uot  all  respects  analogous  to  those  of  a  trustee. 
He  is  liable  to  all  persons  interested  in  the  estate  in  his  hands 
for  any  damage  resulting  to  them  from  any  breach  of  duty  by 
him,  whether  intentionally  ^  or  through  negligence.^  It  has 
been  held  that  he  is  personally  responsible  for  funds  of  the 
trust  embezzled  by  his  clerks.^  He  is,  however,  free  from  lia- 
bility to  the  parties  to  the  suit  on  account  of  any  act  performed 
in  obedience  to  an  order  of  the  court  within  its  jurisdiction, 
and  uot  obtained  by  fraud,  until  the  same  has  been  vacated 
upon  appeal  or  otherwise.* 

A  receiver's  liability  to  strangers  is  much  more  limited  than 
that  of  a  trustee.^  He  is  not  liable  personally  upon  a  covenant 
entered  into  in  his  official  capacity  with  the  sanction  of  the 
court.^ 

Although  it  may  be  that  in  the  courts  of  Massachusetts  he 
is  personally  responsible  for  rent  when  he  retains  possession 
of  a  leasehold,'''  in  the  Federal  courts  he  is  not  liable  in  such 
a  case,  and  the  court  may  authorize  him  to  abandon  a  lease- 
hold after  experience  has  shown  that  it  is  unprofitable  to  the 
estate,  and  then  he  incurs  no  personal  liability,  and  the  estate 
is  responsible  only  for  the  use  of  the  property  during  the  time 
that  he  has  remained  in  possession,*  according  to  its  rental  value.' 


§313.  1  Knight  v.  Lord  Plim- 
outh,  3  Atk.  480,  481;  Kaiser  v. 
Kellar,  21  Iowa,  95,  97;  Koontz 
V.  Northern  Bank,  16  Wall.  196, 
202,  203,  21  L.  ed,  465,  468;  infra, 
§321. 

2Skerrett's  Minors,  2  Hog.  192. 
I7ifra,   §  321. 

3  Gunn  v.  Ewan,  93  Fed.  80. 

4  Holcombe  v.  Johnson,  27  Minn. 
353. 

6  See  Taylor  v.  Davis,  110  U.  S. 
330,  335,  28  L.  ed.  163,  165, 

6  Livingston  v.  Pettigrew,  7  Lans. 
(N.  Y.)  405;  Newman  v.  Daven- 
port, 9  Baxt.  (Tenn.)  538;  Taylor 
V.  Davis,  110  U.  S.  330,  335,  28  L. 
ed.  163,  165;  Central  Tr.  Co.  v. 
Wabash,  St.  L.  &  P.  Ey.  Co.,  34 
Fed.  259. 


7  Com.  V.  Franklin  Ins.  Co.,  115 
Mass.  278;  People  v.  National  Tr. 
Co.,  82  N.  Y.  283.  Cf.  People  v. 
Univ.  L.  Ins.  Co.,  30  Hun  (37  N. 
Y.  S.  C.  K.),  142;  Wells  v.  Hig- 
gins,  132  N.  Y.  459;  Schwartz  v. 
Cahill,  220  N.  Y.  174.  But  see 
Stokes  V.  Hoffman  House,  167  N.  Y. 
554,  53  L.R.A.  870;  s.  c,  46  N.  Y. 
App.  D.  120, 

8  St.  Joseph  &  St,  L.  E.  Co.  v, 
Humphreys,  145  U.  S.  105,  36  L. 
ed.  640;  Ames  v.  Union  Pac.  Ey. 
Co.,  60  Fed,  966;  U.  S.  Tr.  Co.  v. 
Wabash  W,  Ey,  Co.,  150  U.  S.  287, 
37  L,  ed,  1085;  Seney  v.  Wabash 
W.  Ey.  Co.,  150  U.  S,  310,  37  L, 
ed,  1092;  Quiney,  M,  &  P,  Ey,  Co. 
v.  Humphreys,  145  U.  S,  82,  36  L. 
ed,  632;    Kneeland  v.  Am.  L.  &  Tr. 


313] 


LIABILITY   UF   KECEIVERS 


1585 


When  the  property  was  a  street  railroad  the  receivers  were 
charged  as  rent  only  the  amount  of  the  net  earnings.  When 
the  line  was  part  of  a  system  operated  in  connection  with  the 
rest,  these  were  estimated  by  pro-rating  the  total  receipts  on  the 
basis  of  mileage,  and  the  operating  expenses  on  the  basis  of 
car  mileage.  The  receivers  were  credited  out  of  the  general 
funds  of  the  receivership  for  the  money  which  they  had  spent 
in  electrifying  part  of  this  leased  line.^° 

The  payment  under  orders  of  the  court  of  the  rent  fixed  by 
the  lease,  is  not  an  assumption  thereof.^^  He  has  a  reasonable 
time  within  which  to  elect  whether  to  keep  the  lease  as  an  asset 
of  the  estate. ^2     Where  a  receiver  retained  possession,  without 


Co.,   136   U.   S.   89,   3-i   L,  ed.   379; 
Pennsylvania    Steel    Co.    v.    N.    Y. 
City   Ey.   Co.,   165   Fed.  459;    s.   c, 
175  Fed.  812;   s.  C,  176  Fed.  471; 
s.  c,  190  Fed.  609,  615;   s.  c,  192 
Fed.    135;    Coy   v.    Title   Guarantee 
&   Tr.   Co.,   198  Fed.   275;   Beits  v. 
Bisher,  C.  C.  A.,  213  Fed.  581.     Be 
Mullings  Clothing  Co.,  C.  C.  A.,  238 
Fed.  58.     Cf.  3  Columbia  Law  Rev. 
53.      For    cases   where   it   was   held 
that  the  court  had  adopted  and  as- 
sumed the  lease,  see  Central  R.  &  B. 
Co.    of    Ga.    V.    Farmers'   L.   &    Tr. 
Co.,    79    Fed.    158;    Mercantile    Tr. 
Co.  V.  Atlantic  &  P.  R.   Co.,  C.  C. 
A.,  88  Fed.  140;   s.  c,  as  U.  S.  Tr. 
Co.  V.  M.  Tr.  Co.,  C.  C.  A.,  80  Fed. 
18;    Central    T.    Co.    v.    Continental 
Tr.  Co.,  C.  C.  A.,  86  Fed.  517;   U. 
S.  Tr.  Co.  V.  Mercantile  Tr.  Co.,  88 
Fed.  140.     Dayton  Hydraulic  Co.  v. 
Felsenthall,  C.  C.  A.;  116  Fed,  961. 
The     question     whether     the     court 
should  adopt  the  lease  was  said  to 
be  administrative  rather  than  ,iudi- 
eial   in    its   nature,    and   not    to    be 
reviewed    by    an    ajjpellate   tribunal, 
unless   there   was   a   manifest  abuse 
of    discretion.      Mercantile    Tr.    Co. 
V.  Farmers'  L.  &  Tr.  Co.,  C.  C.  A., 
81  Fed.  254.     Certiorari  denied,  168 
U.  S.  710,  42  L.  ed.  1213. 


9  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  190  Fed.  609,  615; 
Be  Adams  Cloak,  Suit  &  Fur  House, 
199  Fed.  337;  Fleming  v.  Noble, 
C.  C.  A.,  250  Fed.  733.  In  Penn- 
sylvania Steel  Co.  v.  N.  Y.  City 
Ry.  Co.,  175  Fed.  812,  the  receiv- 
ers, while  in  possession,  were  di- 
rected to  pay  the  rent,  although  the 
same  was  considered  to  be  exorbi- 
tant. See  High  on  Receivers  (4th 
ed.),  §8  273,  394a;  Be  Grignard 
Lithographic  Co.,  155  Fed.  699, 
holding  that  the  landlord  could  not 
recover  for  power  which  was  not 
used  by  the  trustee  in  bankruptcy. 

10  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  219  Fed.  939.  In  the 
Same  Case  175  Fed.  812,  the  receiv- 
ers while  in  possession  of  a  leased 
line  weie  directed  to  pay  for  a  short 
time  the  stipulated  rent  although  the 
court  considered  it  to  be  exhorbi- 
tant. 

11  Pennsylvania  Steel  Co.  v.  X. 
Y.  City  Ry.  Co.,  176  Fed.  471 ;  s.  C, 
175  Fed.  812;  s.  C,  192  Fed.  135, 
wiicre  a  temporary  agreement  as  to 
the  rent  was  made  with  the  lessor. 

12  Walton  v.  Stafford,  14  App.  D. 
(N.  Y.)  310;  Kansas  City  Pipe 
Line  Co.  v.  Fidelity  Title  &  Trust 
Co.,  C.  C.  A.,  217  Fed.  187;  Penn- 


1586 


RECEIVERS 


[§313 


giving  security,  after  an  order  of  the  court  which  appointed 
him  directed  that  he  either  surrender  the  property  or  give  se- 
curity for  the  rent;  it  was  held  that  he  was  personally  liable.^^ 

It  is  the  safer  practice  for  the  landlord  to  apply  to  the  court 
before  instituting  an  action  of  rejectment  or  dispossess  proceed- 
ings to  oust  the  receiver  for  nonpayment  of  rent.^*  Where 
the  default  was  that  of  the  insolvent  such  permission  should 
ordinarily  be  granted  without  considering  any  defenses  which 
the  tenant  may  interpose."  The  landlord  waives  a  previous 
forfeiture  for  nonpayment  of  rent  when  he  accepts  rent  from 
the  receiver  at  the  rate  fixed  by  the  lease  and  also  by  asking 
the  court  to  fix  a  time  within  which  the  receiver  should  decide 
whether  to  adopt  the  lease.^^  It  has  been  held  that  the  re- 
ceiver cannot  be  dispossessed  for  nonpayment  of  rent  by  a 
petition  in  the  suit  of  his  appointment,!^  but  only  by  an  inde- 
pendent action  of  ejectment  ^^  unless  a  State  statute  authorizing 
summary  proceedings  in  landlord  and  tenant  cases  exists  and 
is  followed.!^ 

The  same  principles  apply  to  a  lease  of  personal  property 
such  as  railroad  cars ;  ^o  and  it  seems  to  building  contracts  ^i 


sylvania  Steel  Co.  v.  N.  Y.  City  Ry. 
Co.,  219  Fed.  9;'.9;  Fleming  v.  Noble, 
C.  C.  A.,  250  Fed.  733.  Ten  (Penn- 
sylvania Steel  Co.  V.  N.  Y.  City  Ry. 
Co.,  190  Fed.  609,  015)  and  nine 
(St.  Joseph  and  St.  Louis  E.  Jl.  Co. 
V.  Humphreys,  145  U.  S.  105,  36 
L.  ed.  640)  months  liave  lieen  lield 
to  he  not  unreasonable  periods  of 
time.  It  was  said  that  it  was  not 
unreasonable  to  preserve  tlie  integ- 
rity of  the  system  until  its  sale, 
by  continuance  in  possession  of  the 
leased  property.  Pennsylvania  Steel 
Co.  V.  N.  Y.  City  Ry.  Co.,  176  Fed. 
471.  See  authorities  cited  in  note 
8,  svijra. 

13  Brooklyn  Improvement  Co.  v. 
Lewis,  136  App.  Div.   (N.  Y.)    861. 

14  Durand  &  Co.  v.  Howard  &  Co., 
C.  C.  A.,  216  Fed.  585;  Odell  v.  H. 
Batterman  Co.,  C.  C.  A.,  223  Fed. 
292. 


15  Odell  v.  H.  Batterman  &  Co., 
C.  C.  A.,  223  Fed.  292. 

16  Durand  &  Co.  v.  Howard  &  Co., 
C.  C.  A.,  216  Fed.  585. 

17  Johnson  v.  Lehigh  Valley  Trac- 
tion Co.,  130  Fed.  932.  Contra, 
Pennsylvania  Steel  Co.  v.  New  York 
City  Ey.  Co.,  225  Fed.  734.  _ 

18  Ibid. 

19  See  Prince  v.  Schlesinger  N.  Y. 
S.   (Trial  term,  Nov.  28,  1905.) 

SO  Sunflower  Oil  Co.  v.  Wilson, 
142  U.  S.  313,  35  L.  ed.  1025.  Cf. 
Piatt  v.  Phila.  &  R.  E.  Co.,  C.  C. 
A.,  84  Fed.  535;  Thomas  v.  Western 
Car  Co.,  149  IT.  S.  95,  37  L.  ed.  663; 
Farmers'  L.  &  Tr.  Co.  v.  Chicago, 
etc.,  Ry.  Co.,  42  Fed.  6;  Easton  v. 
Houston  &  T.  C.  Ry.  Co.,  38  Fed. 
784;  Isaac  M'Lean  Sons  Co.  v. 
William  S.  Butler  &  Co.,  227  Fed. 
325. 

21  Commonwealth    Roofing    Co.    v. 


§  313] 


LIAIJIMTY  OF   RECEIVERS 


1587 


and  otlu-r  c-xecutorv  contracts  the  performance  of  which  is  in- 
eomplele  ^vhen  the  receiver  is  appoiuted.22  The  appointment 
of  the  receiver  does  not  deprive  a  party  to  a  contract  witli  the 
insolvent  of  his  right  of  rescission  becanse  of  fraud.23 

Keceivers  of  a  street  railroad  system  have  been  authorizctl, 
after  notice  to  tlic  pul)lic,  to  discontinue  the  exchange  of  trans- 
fers, although  tlie  corporation  had  contracted  to  make  them.^* 

A  receiver  can  l)e  compelled  to  restore  to  the  estate  any  in- 
terest in  the  assets  which  he  has  acpiired  directly  or  indirectly 
by  purchase  at  his  own  sale,^^  and  any  piolit  wliieh  he  has  made 
from  the  estate.^e  If  he  uses  part  of  the  assets  in  his  private 
business  he  must  pay  the  estate  for  its  use.^^  Wlien  by  the 
use  of  the  assets  he  elects  himself  president  of  another  company, 
he  must  account  to  the  beneficiaries  of  the  trust  for  all  profits 
which  he  thus  acquires.^s 

A  receiver  is  not  personally  liable  for  a  loss  resulting  irom 
his  conduct  of  the  bnsiness,  when  he  was  not  guilty  of  negli- 
gence or  misconduct  and  acted  under  the  direction  of  the  court 
without  objection  by  the  parties  in  interest.^^ 

A  receiver  is  personally   lialile  to  strangers   for  trespass, 
frand,3i  or  other  wilful  act,  although  performed  under  color  of 


North   Am.    Tr.   Co.,   C.   C.   A.,    135 
Fed.  984. 

22  See  Manhattan  Tr.  Co.  v.  Sioux 
City  &  N.  R.  Co.,  81  Fed.  50;  Cen- 
tral Tr.  Co.  V.  East  Tenn.  I.and  Co., 
79  Fed.  19;  Missouri  &  K.  Interur- 
ban  Ry.  Co.  v.  Edson,  C.  C.  A.,  198 
Fed.  819;  Peabody  Coal  Co.  v. 
Nixon,  C.  C.  A.,  226  Fed.  20;  Dick- 
inson V.  Willis,  239  Fed.  171;  Lan- 
don  V.  Public  Utilities  Coniniission 
of  Kansas,  245  Fed.  950. 

23  Salter  v.  Williams,  C.  C  A., 
244  Fed.  126. 

241?p  Dry  Dock  R.   R.,    165   Fed. 

487. 

25  Baker  v.  Schofield,  24.3  U.  S. 
114;  Bat  ton  v.  Barl)our,  104  U.  S. 
126,  134,  26  L.  ed.  672,  676;  Curran 
V.  Craig,  22  Fed.  101. 

26  Strang  v.  Edson,  C.  C.  A.,  198 
Fed.  813. 


27Battaile  v.  Fischer,  36  Miss. 
321. 

28  Strang  v.  Edson,  C.  C.  A.,  198 
Fed.  813. 

29  Piisoy  &  Jones  v.  Pennsylvania 
Paper  Mills,  173  Fed.  629;  cf. 
White  V.  Murray,  218  Fed.  933. 

30  In  re  Young,  7  Fed.  855;  Olney 
V.  Tanner,  10  Fed.  101;  Barton  v. 
Barbour,  104  V.  S.  126,  134,  26  L. 
ed.  672,  676;  Conn  v.  Rice,  C.  C.  A., 
204  Fed.  181;  Lirhtenstein  v.  Bel- 
knap, 100  Misc.  (N.  Y.),  420;  Wcl- 
ensky  v.  Breslin.  176  App.  Div.  (N. 
Y.'i  5ri4.  For  a  case  where  a  re- 
ceiver was  held  not  liable  for  ma- 
licious prosecution,  see  Widmeyer  v. 
Felton,  95  Fed.  926. 

31  Bank  of  Montreal  v.  Thayer,  7 
Fed.  622. 


1588 


RECEIVERS 


[§  313 


his  office.  So,  if  by  mistake,  though  honestly,  he  takes  possession 
of  the  property  of  another,  he  is  personally  liable ;  32  the  fact 
that  he  does  so  under  authority  of  an  order  of  the  court  will  not 
justify  him  as  against  a  person  who  was  not  a  party  to  the  suit 
or  proceeding  in  which  the  order  was  granted.33  In  all  of  such 
cases  it  seems  that  he  can,  independently  of  the  statute,  be  sued 
without  leave  of  the  court  which  appointed  him.^* 

A  person  who,  without  having  been  lawfully  appointed,  as- 
sumes to  act  as  a  receiver,  has  all  the  liabilities  of  one  duly 
appointed,35  but  a  receiver  is  not  liable  for  damages  caused 
by  a  mistaken  claim  of  title  which  he  made  in  good  faith  when 
he  did  not  interefere  with  the  position.^e  He  is  personally 
liable  for  purchases  on  credit  made  without  authority,^^  but  not 
for  money  borrowed  on  the  credit  of  the  estate  under  an  order 
of  the  court. 38 

A  receiver,  even  when  acting  as  a  common  carrier,  is  not 
liable  personally  for  injuries  caused  by  the  negligence  of  his 
employees,  when  he  exercised  reasonable  care  in  their  select  ion. 3» 
The  only  remedy  of  the  person  thus  aggrieved  is  by  an  action 
against  the  receiver  in  his  official  capaeit}',  seeking  satisfaction 
out  of  the  estate.**" 

A  receiver  appointed  by  State  *i  or  Federal  "'^  Court  is  not  lia- 
ble to  pay  the  Federal  Income  Tax,  nor  ordinarily  a  State  fran- 


32  Barton  v.  Barbour,  104  U.  S. 
126,  134,  26  L.  ed.  672,  676;  Cur- 
ran  V.  Craig,  22  Fed.  101. 

33  Curran  v.  Craig,  22  Fed.  101. 

34  Barton  v.  Barbour,  104  U.  S. 
126,  134,  26  L.  ed.  672,  676.  In  re 
Young,  7  Fed.  855;  Bank  of  Mon- 
treal V.  Thayer,  7  Fed.  622;  Curran 
V.  Craig,  22  Fed.  101.  But  see  As- 
ton V.  Heron,  2  Myl.  &  K.  390; 
Chalie  v.  Pickering,  1  Keen,  749. 

36  Wood  V.  Wood,  4  Euss.  558. 

36  Huxley  v.  Hayes,  C.  C.  A.,  201 
Fed.  899. 

37  Haines  v.  Buckeye  Wheel  Co., 
C.  C.  A.,  224  Fed.  289. 

88  Ibid. 

39  Kennedy  v.  I.  C.  &  L.  E.  Co., 
3  Fed.  97;  Union  Tr.  Co.  v.  Chi- 
cago &  L.   H.  Ey.  Co.,  7  Fed.  513, 


516;  Davis  v.  Duncan,  19  Fed.  477; 
Farmers'  L.  &  Tr.  Co.  v.  Central  E. 
E.  of  Iowa,  2  McCrary,  181;  s.  C, 
7  Fed.  537;  Thompson  v.  No.  Pac. 
Ey.  Co.,  93  Fed.  384,  389;  Hanlon 
>\  Smith,  175  Fed.  192.  See,  how- 
ever, Kain  v.   Smith.  80  N.  Y.  458. 

40  Kennedy  v.  I.  C.  &  L.  E.  Co., 
3  Fed.  97;  Farmers'  L.  &  Tr.  Co. 
V.  Central  E.  E.  of  Iowa,  2  Mc- 
Crary, 181;  s.  c,  7  Fed.  537;  Union 
Tr.  Co.  V.  U.  &  L.  H.  Ey.  Co.,  7 
Fed.  513,  516;  Gray  v.  Grand  Trunk 
W.  Ey.  Co.,  C.  C.  A.,  156  Fed.  736. 

41  Lather  v.  Handlan,  102  Misc. 
(N.  Y.)   563. 

41a  Eq.  Tr.  Co.  v.  Western  Pac. 
Ry.  Co.,  236  Fed.  813. 

42  Under  the  New  Jersey  Statute, 
Franklin   Tr.   Co.    v.    State   of   New 


§313] 


LIABILITY  OF  RECEIVERS 


1589 


chise  tax.*2  Tlie  action  of  the  court  in  placing  property  in 
the  hands  of  a  receiver  does  not  however  relieve  it  from  liability 
to  State  and  local  taxation.*^  It  can  be  assessed  for  taxes  while 
in  the  possession  of  the  receiver.'**  Taxes  assessed  pending  the 
receivership  are  preferred  claims.  Taxes  assessed  before  the 
receivership  are  usually  preferred  over  other  debts  of  the  in- 
solvent, but  are  paid  subsequently  to  debts  incurred  by  the  re- 
ceiver.*^ 

A  Federal  Court  has  refused  to  follow  the  decision  of  a  State 
Court  that  a  receiver  should  not  pay  taxes  assessed  against  per- 
sonal property  in  his  possession.*^ 

When,  before  a  suit  for  a  personal  injury  is  brought  against 
him,  the  receiver  has  been  discharged  and  the  estate  sold,  or  re- 
turned to  its  owner,  it  has  been  held  that  the  plaintiff  has  no 
remedy  in  a  Federal  court  except  against  the  employee,  unless 
one  has  been  preserved  for  him  by  the  court .^"^  For  the  oASTier 
of  the  property  is  not  liable  for  the  negligence  of  the  receiver's 
employees.*^  For  this  reason  it  is  customary  to  insert  in  the 
order  for  the  sale  in  bulk  of  property  in  the  possession  of  a 
receiver,  a  direction  that  the  purchaser  shall  take  it  subject  to 
all  claims  for  injuries  caused  while  it  was  managed  by  the  re- 
ceiver.*^ Such  a  provision,  although  not  mentioned  in  the  order 
for  the  sale,  may  be  inserted  as  a  condition  in  the  order  con- 
firming the  sale,  and  the  purcha.ser,  after  taking  possession  under 
the  latter  order,  is  estopped  from  disputing  the  validity  of 
the  condition.^*'     Claims  of  this  nature  are  usually  enforced  in 


Jersey,  C.  C.  A.,  181  Fed.  769. 
Contra  Conklin  v.  U.  S.  Shipbuild- 
ing Co.,  148  Fed.  129.  Under  the 
Ohio  Statute,  Keeney  v.  Dominion 
Coal  Co.,  225  Fed.  625. 

43Croy  v.  Title  Guaranty  &  Tr. 
Co.,  C.  C.  A.,  220  Fed.  90,  s.  C,  212 
Fed.  520. 

44Croy  v.  Title  Guaranty  &  Tr. 
Co.,  212  Fed.  520;  Spring  Valley 
Water  Co.  v.  City  &  County  of  San 
Francisco,  C.  C.  A.,  225  Fed.  728. 

45  Atkinson  &  Co.,  Inc.  v.  Ald- 
rich-Clisbee  Co.,  248  Fed.  1.^4. 

46  Rear  River  Paper  &  Bag  Co.  v. 
City  of  Petoskey,  C.  C.  A.,  241  Fed. 
53. 

Fed.  Prac.  Vol.  II— 30 


47  Davis  v.  Duncan,  19  Fed.  477; 
White  V.  Keokuk  &  D.  M.  Ry.  Co., 
52  Iowa,  97.  See  §  394,  infra. 
But  see  Gray  v.  Grand  Trunk  Ry. 
Co.,  C.  C.  A.,  156  Fed.  736.  For 
cases  where  a  State  court  gave  a 
remedy,  see  Texas  Pac.  Ry.  Co.  v. 
Johnson,  151  U.  S.  81,  38  L.  ed. 
81;  Fordyce  v.  Withers  (Texas),  20 
S.  W.  266;  Baer  v.  MeCullough,  176 
X.  Y.  97. 

48  Davis  v.  Duncan,  19  Fed.  477. 

49  Farmers '  L.  &  Tr.  Co.  v.  Cen- 
tral R.  R.  Co.  of  Iowa.  2  McCrary 
181;  s.  c,  7  Fed.  537;  s.  c,  subse- 
quently considered  in  17  Fed.  758. 

60  Farmers'  L.  &  Tr.   Co.  v.  Cen- 


1590 


RECEIVERS 


[§314 


the  suit  in  which  the  receiver  was  appointed.^^  The  discharge 
of  a  receiver  until  revoked  relieves  him  from  all  liability  to 
those  who  had  an  opportunity  to  be  heard  upon  the  motion 
for  his  discharge.^2 

§  314.  Suits  against  receivers.  By  the  former  practice,  fol- 
lowing the  old  chancery  rule,  a  receiver  could  not  be  sued  with- 
out the  permission  of  the  court  that  appointed  him.^ 

A  judgment  against  a  receiver  in  an  action  which  could  not 
properly  be  instituted  without  permission,  is  not  void  because 
no  such  permission  was  obtained.^  Such  permission  is  revocable 
and  ma}"  be  conditional.^  "The  leave  to  bring  suit  in  any  form 
reserves  the  right  to  the  receiver  to  set  up  any  defense  he  maj^ 
have,  which  can  be  done  by  plea,  answer,  or  demurrer. ' '  * 

An  act  of  Congress  has  changed  the  practice  as  follows: 
"Every  receiver  or  manager  of  any  property  appointed  by 
any  court  of  the  United  States  may  be  sued  in  respect  of  any 
act  or  transaction  of  his  in  carrying  on  the  business  connected 
with  such  property,  without  the  previous  leave  of  the  court  in 
which  such  receiver  or  manager  was  appointed;  but  such  suit 
shall  be  subject  to  the  general  equity  jurisdiction  of  the  court 
in  which  such  receiver  or  manager  was  appointed,  so  far  as  the 
same  shall  be  necessary  to  the  ends  of  justice.  "^    This  dispos- 


tral  R.  E.  of  Iowa,  17  Fed.  758; 
infra,  §  394. 

61  Ibid. 

52  Lehman  v.  McQuown,  31  Fed. 
138;  Davis  v.  Duncan,  19  Fed.  477; 
infra,  §  324. 

§  314.  1  Barton  v.  Barbour,  104 
U.  S.  126,  26  L.  ed.  672;  Central 
Tr.  Co.  of  New  York  v.  Wheeling 
&  L.  E.  E.  Co.,  189  Fed.  82.  For 
a  case  where  the  order  of  the  State 
court  granting  leave  to  sue  a  re- 
ceiver appointed  by  it,  was  held  not 
to  authorize  a  suit  in  a  Federal 
court,  see  Harper  v.  Printing-Tel.- 
News  Co.,  128  Fed.  979.  Cf.  Wat- 
son V.  Jones,  13  Wall.  679,  20  L. 
ed.  666;  supra,  §§52,  55.  Other- 
wise when  it  grants  leave  to  sue 
him  "in  any  court  of  competent 
jurisdiction. ' '         James       Freeman 


Brown  Co.  v.  Harris,  139  Fed.  105. 
ZEidge  V.  Manker,  C.  C.  A.,  132 
Fed.  599. 

3  Central  Tr.  Co.  v.  Wabash,  St. 
L.  &  P.  Ey.  Co.,  26  Fed.  74;  Buck- 
hannnn  &  N.  E.  Co.  v.  Davis,  C.  C. 
A.,  135  Fed.  707;  Investment  Regis- 
try V.  Chicago  &  M.  Electric  R.  Co., 
C.  C.  A.,  251  Fed.  510. 

4  Davis  V.  Duncan,  19  Fed.  477, 
483.  See  also  Jordan  v.  Wells,  3 
Woods  527. 

5  Jud.  Code,  §  66,  re-enacting  25 
St.  at  L.,  p.  436;  24  St.  at  L.,  p. 
554.  See  Croy  v.  Marshall,  21 
Ohio  W.  L.  B.  489;  Atkin  v.  Wa- 
bash Ey.  Co.,  41  Fed.  19.3,  194; 
Colonial  Trust  Co.,  et  al.  v.  Pacific 
Packing  &  Navigation  Co.,  142  Fed. 
298;  Nashville  Ry.  &  Light  Co.  v. 
Bunn,  C.  C.  A.,  168  Fed.  862.     This 


§314] 


SUITS  AGAINST  RECEIVERS 


1591 


sesses  receivers  ai)poiiitfd  by  a  Federal  court  of  any  right  which 
the}'  might  otherwise  have  to  remove  suits  brouglit  against  them 
from  the  State  to  the  Federal  courts,  where  no  difference  of 
citizenship  exists  and  no  Federal  question  is  involved.^  it  has 
been  held  that  this  statute  makes  the  judgment  in  the  State 
court  in  such  an  action  conclusive  as  to  the  right  of  the  plaintiff 
therein  to  recover  damages,  and  as  to  the  amount  of  the  re- 
covery;' that  the  receiver  has  the  light  to  appeal  from  the 
judgment  of  the  State  court,  and  that  the  Federal  court  should 
not,  as  a  condition  of  such  appeal,  oblige  him  to  execute  a  super- 
sedeas bond. 8  .Judgment  in  such  a  suit  cannot  be  enforced  by 
execution  against  the  property.^  It  has  been  held  in  New  York 
that  after  the  appointment  of  a  receiver  the  olilicer  of  a  corpoi-a- 
tion  cannot  l)e  examined  in  ])roceedings  supplementarj'  to  execu- 
tion." 

The  time  and  manner  of  payment  must  be  determined  by  the 
court  that  appointed  the  receiver."  The  statute  does  not  au- 
thorize the  interference  by  the  State  court  with  property  in 
the  possession  of  the  receiver  ^^  Ijy  an  action  of  uiilawful  de- 


applies  to  receivers  in  bankruptcy. 
Re  Gutinan,  114  Fed.  1009;  Be 
Kantor  &  Cohen,  121  Fed.  984. 

6  Gablenian  v.  Peoria,  D.  &  E.  Ey. 
Co.,  179  U.  S.  a.-io,  45  L.  ed.  220. 
See  sitpra,  §§  5,  37,  HI. 

7  Dillingham  v.  Hawk,  C.  C.  A., 
23  L.R.A.  517,  60  Fed.  494;  St. 
Louis  S.  W.  Ey.  Co.  v.  Holbrook, 
C.  C.  A.,  73  Fed.  112;  Bound  v. 
South  Carolina  Ky.  Co.,  174  Fed. 
729;  Meyer  Eub])er  Co.  v.  George- 
town &  W.  R.  Co.,  174  Fed.  731; 
Willcox  V.  Jones,  C.  C.  A.,  177  Fed. 
870,  holding  that  the  judgment 
bears  interest  in  accordance  with 
the  State  statute;  Manhattan  Tr. 
Co.  V.  Chicago  El.  Traction  Co.,  188 
Fed.  lOOG.  Contra,  Guaranty  Tr. 
Co.,  V.  Chicago  Fnion  Traction  Co., 
175  Fed.  284.  But  see  Mo.  Pac. 
Ey!  Co.  V.  Texas  Vac  Ey.  Co.,  41 
Fed.  311.  314. 


8  Central  Tr.  Co.  v.  St.  Louis,  A. 
&  T.  Ey.  Co.,  41  Fed.  551,  555,  556. 

9  Ibid.  Dillingham  v.  Hawk,  C.  C. 
A.,  23  L.E.A.  517,  60  Fed.  494;  St. 
Louis  S.  W.  Ey.  Co.  v.  Holbrook, 
C.  C.  A.,  75  Fed.  112;  Mo.  Pac.  E. 
Co.  V.  Texas  Pac.  E.  Co.,  41  Fed. 
311;  Gableman  v.  Peoria,  D.  &  E. 
Ey.  Co.,  179  U.  S.  335,  339,  45  L. 
ed.  220,  222. 

lO.Iojies  V.  Standard  Plunger 
Elevator  Co.,  167  App.  Div.  178. 

11  Ibid.  Meyer  Eubber  Co.  v. 
Georgetown  &  W.  E.  Co.,  174  Fed. 
731. 

12  Comer  v.  Felton,  C.  C.  A.,  61 
Fed.  731;  Stateler  v.  Cal.  Xat. 
Bank.  77  Fed.  43;  J.  I.  C.  Plow 
Works  V.  Finks,  C.  C.  A.,  81  Fed. 
524,  529.  Supra,  §  55,  For  a  remark- 
able exertion  of  Federal  power,  .see 
TiOuisville  Tr.  Co.  v.  Cincinnati  1.  P. 
Ey.  Co.,  78  Fed.  307 


1592 


KECEIVERS 


[§314 


tainer,^^  a  suit  to  recover  title  or  possession  to  property,^*  gar- 
nishment/^ or,  condemnation  proceedings,^^  or  proceedings  to 
condemn  a  grade  crossing,^''  or  by  a  suit  for  specific  perform- 
ance,^^ nor,  perhaps,  by  any  injunction.^*  The  proper  method  of 
collecting  taxes  upon  property  in  the  possession  of  a  receiver 
is  by  an  application  by  the  State  officer  of  the  court  for  an  order 
requiring  such  payment.^^  A  suit  to  foreclose  a  tax  lien  upon 
land  of  which  the  receiver  is  mortgagee  may  be  brought  in 
Oregon  without  permission  of  the  court.^^  The  refusal  of  the 
receiver  to  agree  with  the  petitioner  upon  the  point  and  manner 
of  crossing  does  not  constitute  "an  act  or  transaction"  by  him 
within  the  meaning  of  the  statute.^^  The  law  does  not  authorize 
a  mandamus  against  a  receiver.^^  The  proper  remedy  in  all 
such  cases  is  usually  a  petition  of  intervention  pro  interesse  suo.^^ 


13  Comer   v.   Felton,   C.   C.   A.,  61 
Fed.  731. 

14  J.  I.  C.  Plow  Works  V.  Finks, 
81  Fed.  529;  Love  v.  Louisville  & 
E.  R.  Co.,  178  Fed.  507.  So  held 
of  a  suit  to  foreclose  a  lien  when 
the  receiver  was  a  defendant.  Am. 
L.  &  Tr.  Co.  V.  Central  Vt.  R.  Co., 
84  Fed.  917.  Cf.  Grand  Trunk  Ry. 
Co.  V.  C.  Vt.  R.  Co.,  88  Fed.  622. 
So  a  Federal  court  refused  to  enter- 
tain a  suit  to  foreclose  a  lien  upon, 
Am.  L.  &  Tr.  Co.  v.  Central  Vt.  R. 
Co.,  84  Fed.  917 ;  or  ejectment  from. 
Waters  v.  Shinn,  178  Fed.  345;  or  to 
set  aside  a  fraudulent  conveyance  of 
property  in  the  hands  of  a  State 
receiver.  Werner  v.  Murphy,  60 
Fed.  769.  Cf.  supra,  §§  52,  55.  For 
a  case  where  the  Federal  court  ap- 
pointed a  trustee  to  protect  the 
rights  of  lienors,  see  Risk  v.  Kan- 
sas Tr.  Co.,  58  Fed.  45.  The  same 
rule  applies  to  trustees  and  receiv- 
ers in  Bankruptcy.  Be  Russell  & 
Birkett,  C.  C.  A.,  101  Fed.  248. 
They  may,  however,  be  sued  in 
trover  without  leave  of  the  court 
of  bankruptcy.  Be  Kanter  v.  Co- 
hen, C.  C.  A.,  121  Fed.  984;  Be 
Spitzer,  C.  C.  A.,  130  Fed.  879. 


15  Central  Tr.  Co.  v.  East  Tenn. 
V.  &  G.  Ry.  Co.,  59  Fed.  523;  Cen- 
tral Tr.  Co.  of  New  York  v.  Wheel- 
ing &  L.  E.  R.  Co.,  189  Fed.  82. 
For  the  practice  by  the  receiver  in 
such  a  case,  see  In  re  Barnard,  61 
Fed.  531.  For  the  remedy  by  a 
State  receiver  when  property  is  at- 
tached by  a  United  States  marshal, 
see  Remington  P.  Co.  v.  Louisiana 
P.  &  Pub.  Co.,  56  Fed.  287. 

16  Hayes  v.  Columbus,  L.  &  M, 
Ry.  Co.,  67  Fed.  630. 

17  Coster  V.  Parkersburg  B.  R. 
Co.,  131  Fed.  115;  Buckhannon  & 
N.  R.  Co.  V.  Davis,  C.  C.  A.,  135 
Fed.  707. 

18  Dickenson  v.  Willis,  239  Fed. 
171,  173. 

19  Ibid. 

20  Coy  v.  Title  Guarantee  &  Trust 
Co.,  212  Fed.  520. 

21  Coy  V.  Title  Guarantee  &  Trust 
Co.,  257  Fed.  571. 

22  Buckhannon  &  N,  R.  Co.  v. 
Davis,  C.  C.  A.,  135  Fed.  707. 

23  Royal  Tr.  Co.  v.  Washburn  B. 
&  I.  Ry.  Co.,  113  Fed.  531;  infra, 
§§428,  457. 

24  Winchester  v.  Davis  Pyritea 
Co.,    C.   C.    A.,    67    Fed.   45;    Minot 


§314] 


SUITS  AGAINST  RECEIVERS 


1393 


It  has  been  held  that  the  statute  does  not  prevent  an  injunction 
against  the  interference  by  the  creditors  witli  the  assets  in  the 
hands  of  a  receiver  of  a  national  bank;  ^s  uor  authorize  a  stock- 
holder of  a  corporation  to  enforce  a  corporate  cause  of  action 
by  a  suit  against  a  debtor  to  the  corporation,  when  the  receiver 
refuses  to  sue,^^  — in  the  latter  case,  the  proper  remedy  being  an 


application  to  the  court  to  direct  the  receivers  to  sue;^^ — nor 
authorize  the  joinder  of  the  receiver  in  his  official  capacity  iji 
an  action  against  ditTerent  companies  for  making  in  concert 
with  him  discriminating  rates  j^s  and  that  upon  his  accounting 
the  receiver  can  set  off  against  a  claim  upon  the  fund  debts 
owed  by  the  claimant  to  his  successor  in  interest.^* 

A  petition  to  the  Federal  court  for  the  payment  of  a  claim 
should  show  that  tlie  receiver  holds  assets  properly  applicable 
thereto.^'' 

The  holder  of  a  common-law  claim  who  intervenes  in  the 
Federal  court  in  the  first  instance  waives  his  right  to  a  trial 
by  jury ;  and  if  the  court  submits  to  a  jury  the  issues  that  arise 
thereupon,  the  verdict  is  merely  advisory. ^^ 

The  statute  applies  to  receivers  appointed  before  its  enact- 
ment; '^  and  to  suits  against  a  receiver  for  liabilities  incurred  by 
his  predecessor  in  office.^^     It   applies  to  receivers  appointed 


V.  Mastin,  C.  C.  A.,  95  Fed.  734; 
Strain  v.  Palmer,  C.  C.  A.,  159  Fed. 
624 ;  supra,  §  258. 

25Stateler  v.  Cal.  Nat.  Bank,  77 
Fed.  43.  As  to  suits  in  a  State 
court  for  an  injunction  against  a 
Federal  receiver,  see  Royal  Tr.  Co. 
V.  Washburn  B.  &  I.  R.  Co.,  C.  C. 
A.,  139  Fed.  865. 

26  Swope  V.  Villard,  61  Fed.  417. 
Cf.  Werner  v.  Murphy,  60  Fed.  769. 
Contra,  Flynn  v.  Third  Nat.  Bank, 
122  Mich.  642;  Saunderson  v.  Bank 
of  Mecklenberg,  75  S.  E.  94. 

27l,and  Title  &  Trust  Co.  v.  As- 
phalt Co.,  120  Fed.  996,  999.  See 
Werner  v.  Murphy,  60  Fed.  769; 
Swope  V.  Villard,  61  Fed.  417. 

28  Western  N.  Y.  &  P.  R.  Co.  v. 
Penn  Refining  Co.,  C.  C.  A.,  137 
Fed.  343. 


29  Central  R.  &  B  'g  Co.  v.  Farm- 
er's  L.  &  Tr.  Co.,  113  Fed.  405. 

30  Empire  Distilling  Co.  v.  Mc- 
Nulta,  C.  C.  A.,  77  Fed.  700.  But 
see  Veatch  v.  Am.  L.  &  Tr.  Co.,  C. 
C.  A.,  84  Fed.  274.  For  a  case 
where  the  claimant  did  not  lose  any 
rights  by  delay  till  after  a  dividend 
had  been  paid,  and  the  State  rule 
requiring  a  surrender  of  collateral 
was  not  followed,  see  London  &  S. 
F.  Ry.  Co.  V.  Williamette  S.  M.  L. 
&  Md.  S.  Co.,  80  Fed.  226. 

SlFlippin  V.  Kimball,  C.  C.  A., 
87  Fed.  258.  Cf.  Atkin  v.  Wabash 
Ry.  Co.,  41  Fed.  193. 

32  Texas  &  Pac.  Ry.  Co.  v.  Cox, 
145  U.  S.  593,  36  L.  ed.  829. 

33MeNulta  v.  Lochridge,  141  U. 
S.  327,  35  L.  ed.  796;  State  v.  Port 
Royal   &   A.    Ry.    Co.,   84   Fed.    67. 


1594 


RECEIVERS 


[§314 


by  the  courts  of  the  Territories  over  the  property  of  corpora- 
tions created  by  acts  of  Congress.^*  Non-resident  receivers  may 
be  served  in  the  same  manner  as  the  corporations  over  which 
they  were  appointed.^^  A  judgment  in  a  suit  thus  prosecuted 
can  only  be  collected  out  of  the  property  in  the  hands  of  the 
receiver  in  his  official  capacity.^^  The  statute  does  not  authorize 
suits  against  a  receiver  upon  claims  against  the  corporation, 
over  whose  property"  he  has  been  appointed.^'  After  the  prop- 
erty has  been  sold,  free  and  clear  from  all  incumbrances  except 
certain  claims,  which  the  decree  directs  shall  be  presented  within 
a  limited  time,  and  after  such  time  has  expired,  a  receiver  can- 
not, without  leave  of  the  court  that  appointed  him,  be  sued  for 
acts  committed  in  his  management  of  the  property ;  ^^  but  a 
suit  pending  against  a  receiver  at  the  time  of  his  discharge 
may  be  prosecuted  to  final  judgment  where  the  property  has 
been  sold  subject  to  claims  against  him ;  ^^  and  an  order  of 


But    see    Jones    v.    Schlapbeek,    81 
Fed.  274. 

34  Wheeler  v.  Smith,  81  Fed.  319. 

35  Eddy  V.  Lafayette,  163  U.  S. 
456,  464,  41  L.  ed.  225,  228.  It  was 
held  that  process  might  be  served 
upon  any  local  agent  of  the  re- 
ceivers. Be  Seaboard  Air  Line  Ry., 
166  Fed.  376. 

It  has  been  held  that  the  appoint- 
ment of  a  receiver  does  not  ipso 
facto  revoke  the  authority  of  the 
agents  of  the  corporation  and  that 
service  upon  a  person  in  the  employ 
of  the  company  when  the  receiver 
was  appointed  is  binding  upon  the 
corporation,  if  such  service  would 
have  been  good  had  there  been  no 
receiver.  Chiletti  v.  M.  K.  &  T.  Ey. 
Co.,  102  Kan.  297,  171  Pac.  14, 
L.E.A.  1918,  Ch.  1147,  see  supra, 
§  61,  Gursky  v.  Blair,  218  N.  Y.  41. 
In  New  York  the  appointment  of  a 
receiver  by  a  Federal  court  revokes 
the  designation  by  the  corporation 
of  a  person  on  whom  process  may  be 
served.  Gursky  v.  Blair,  218  N.  Y. 
41.     See  Missouri  K.  &  T.  Ey.   Co. 


V.  Hudson,  Oklahoma,  Sept.  1918, 
174  Pac.  1058,  Central  Tr.  Co.  v. 
St.  Louis  A.  &  T.  Ey.  Co.,  40  Fed. 
426;  contra  Baltimore  &  Ohio  Ry. 
Co.  V.  Freedman,  C.  C.  A.,  112  Fed. 
37. 

36  Farmers'  L.  &  Tr.  Co.  v.  Cen- 
tral E.  Co.  of  Iowa,  2  MeCrary, 
181;  .s.  C,  7  Fed.  537;  Barton  v. 
Barbour,  104  U.  S.  126,  26  L.  ed. 
672 ;  Mo.  Pac.  By.  Co.  v.  Texas  Pac. 
Ey.  Co.,  41  Fed.  310.  Be  Seaboard 
Air  Line  Ey.,  166  Fed.  376;  Hanlon 
v.  Smith,  175  Fed.  192. 

37  Farmers '  Loan  &  Trust  Co.  v. 
Chicago  &  N.  P.  E.  Co.,  118  Fed. 
204. 

38  Farmers '  Loan  &  Trust  Co.  v. 
Chicago  &  N.  P.  E.  Co.,  118  Fed. 
204. 

39  Baer  v.  MeCullough,  176  N.  Y. 
97,  103  Parker,  C.  J.:  "Clearly  the 
statute  indicates  that  it  was  a  part 
of  the  Congressional  scheme  that 
the  appointment  of  receivers  of 
great  corporations — in  the  case  of 
railroads,  covering  hundreds  and 
sometimes  thousands  of  miles,  with 


§314] 


SUITS  AGAINST  RECEIVERS 


1595 


a  Federal  court  which  discharged  a  railroad  receiver,  restored 
the  property  to  the  defendant  company  and  reciuired  that  all 
claims  against  the  receiver  be  presented  by  intervention  to  that 
court  before  a  give.i  date,  did  not  prevent  the  subsequent  re- 
covery in  a  State  court  of  a  judgment  against  the  company  for 
damages  on  account  of  personal  injuries  caused  by  the  negli- 
gent operation  of  the  railroad  by  the  employees  of  the  receiver 
before  his  discharge.*" 


property    extending    through    many 
different      counties      and      States — 
should   not   operate   to  prevent   par- 
ties having  claims  against  such  cor- 
porations,  or   against   the   receivers 
thereof,     from     proceeding     in     the 
courts  of  the  neighborhood  precisely 
as   they   could  have   done   when   the 
corporation  was  managing  the  prop- 
erty.    And   to   save   the   citizen   un- 
necessary   expense,    and    the    more 
surely  to  protect  him  in  his  rights, 
it  provided,  in  effect,  that  the  right 
to   bring  the   action   should   not   de- 
pend upon  the  will  of  the  court  ap- 
pointing the  receivers,  and  so  could 
be  brought   without   the  consent   of 
such  court.     But  while  Congress  in- 
tended  to   permit  the   establishment 
of    claims   against    the    fund    in    the 
hands  of  the  receivers  to  take  place 
through   the   ordinary  local   judicial 
machinery,   it   could   not,   of   course, 
tolerate  an   attempt   on  the  i>art  of 
such  courts  to  take  possession  of  so 
much    of    the    fund    or    property   in 
the  hands  of  the  receivers  as  would 
be   necessary  to   the   satisfaction  of 
the   claims.     Only   one   court    could 
be    permitted   to    operate   the   prop- 
erty,  marshal   the   assets,    decree    a 
sale    and   provide    for   the   distribu- 
tion of  the  assets  among  those  en- 
titled   thereto,    and    hence    it    was 
deemed    necessary    to    establish    the 
bo^mdary   line  beyond    which   State 
courts   could   not  go.     Such   a  con- 


struction   is    in    harmony    with    the 
decree    mad£   by   the   Federal    court 
in  this  case.     True,  it  provided  for 
a   method   by   which   claims   against 
the  fund  could   be   ascertained,   but 
it  did  not  provide  that  such  method 
was    exclusive,   nor   do   we   think    it 
could   have   so   provided   in   view   of 
the  language  of  the  statute  author- 
izing   the    commencement    of    suits 
without  its  consent,  for  if  it  could 
lake   to   itself  exclusive  jurisdiction 
to  establish  claims  against  the  fund 
by  decree  made  at  the  close  of  the 
litigation,  it  could  also  do  it  at  the 
outset  of  the  litigation,  and  in  such 
case     the     authority     conferred     by 
statute    upon    other    courts    to   take 
jurisdiction      of      actions      brought 
against  the  receivers  would  be  with- 
out effect,  and,  of  course,  the  stat- 
ute cannot  thus  be  brushed  aside. 

' '  The  decree  of  the  Federal  court 

in    this  case   was  made    on   broader 

li„(,s — lines  more  convenient  for  the 

litigant    and    in    harmony    with    the 

statute.       Tt     assured    the    creditor 

that    his    claim,    whether    estalished 

or   not   at   the  time   of   the   sale   of 

the   property,  shall   be  paid,   and  it 

does  not  attempt  to  take  from  him 

the   right,  plainly  given  him  by  the 

statute,    to    select    the    court    most 

convenient   to   him,   and   it   reserved 

to  the  Federal  court,  in  the  interest 

of    all    the    creditors,    the    right    to 

proceed   at  the   foot   of   the   decree 


1596 


RECEIVERS 


[§314 


A  Court  of  the  United  States  will  rarely,  if  ever,  enjoin  a 
proceeding  in  admiralty  in  a  Federal  District  Court  against 
property  in  the  hands  of  one  of  its  receivers.*^ 

It  has  been  held  that  the  statute  does  not  apply  to  a  receiver 
in  bankruptcy  who  is  not  carrying  on  the  business  of  the  bank- 
rupt, except  in  so  far  as  the  cause  of  action  arises  out  of  his 
acts  in  the  care  and  preservation  of  the  property  of  the  estate.*^ 

A  receiver  appointed  under  a  creditor's  bill  is  not  a  proper 
party  to  an  ancillary  foreclosure  suit.*^  An  independent  suit 
to  recover  a  simple  contract  debt  incurred  by  him  cannot  be 
maintained  in  equity,**  The  creditor  must  sue  at  law  or  bring 
a  petition  of  intervention  in  the  original  suit.*^ 

A  suit  begun  before  the  appointment  of  a  receiver  may  sub- 
sequently be  prosecuted  to  judgment,  and  the  judgment  so  ob- 
tained establishes,  as  against  the  receiver,  the  rightful  amount 
of  the  demand.*^  The  judgment  should  be  entered  against  the 
corporation  and  not  against  the  receiver  except  under  special 
circumstances  when  the  receiver  has  been  substituted  as  a  de- 
fendant.*''' A  party  who,  pending  such  a  suit,  files  his  claim 
against  the  receiver  in  the  suit  in  which  the  receiver  was  ap- 
pointed, does  not  thereby  make  an  election  of  remedies  and 
lose  his  right  to  prosecute  the  suit.**     In  such  a  case  it  was 


to  make  snch  further  order  as 
might  be  necessary  to  carve  out  of 
the  property  or  take  from  the  fund 
such  sum  as  should  be  necessary  to 
satisfy  all  claims  established  through 
the  proper  legal  machinery  provided 
either  by  the  State  or  the  Federal 
government  in  the  event  that  the 
purchaser  of  the  property,  the  Erie 
Eailroad  Company,  should  fail  to 
pay  such  claims. ' ' 

40  Texas  &  Pae.  Ry.  Co.  v.  John- 
son, 151  U.  S.  81,  38  L.  ed.  81. 
Where  the  receivers  remained  in 
possession  a  few  days  after  the  de- 
livery of  the  deed  to  the  purchaser, 
a  cause  of  action  for  negligence 
then  arising  is  a  liability  of  the 
receivership  enforceable  under  such 
a  clause  of  the  decree.     Fidelity  I., 


Tr.  &  S.  D.  Co.  V.  Norfolk  &  W.  R. 
Co.,  88  Fed.  815. 

41  Paxson  V.  Cunningham,  63  Fed. 
132;  Berwind-White  Coal  Mining 
Co.  V.  Eastern  S.  S.  Corp.,  228  Fed. 
726.  Cf.  The  St.  Nicholas,  49  Fed. 
671. 

42  Be  Kalb  &  Berger  Mfg.  Co.,  C. 
C.  A.,   165  Fed.   89-5. 

43  Continental  Tr.  Co.  v.  Toledo, 
St.  L.  &  K.  C.  R.  Co.,  82  Fed.  642. 

44  Nash  v.  Ingalls,  79  Fed.  510. 

45  Ibid. 

46  Pine  Lake  Iron  Co.  v.  Lafay- 
ette Car  Works,  53  Fed.  853.  See 
supra,   §  230. 

47  Sundlcs  v.  Idaho-Oregon  Light 
&  Power  Co.,  218  Fed.  698. 

48  Ibid.  See  Zacher  v.  Fidelity 
Tr.  &  S.  D.  Co.,  C.  C.  A.,  106  Fed. 
593. 


§  314]  SUITS  AGAINST  RECEIVERS  1597 

held  that  the  claimant  thereby  lost  his  right  to  costs  in  the  orig- 
inal action.** 

It  has  been  held  that  leave  from  a  State  court  need  not  be 
obtained  before  suing  a  receiver  appointed  by  it  for  the  in- 
fringement of  a  patent.^®  It  has  been  held  that  an  action  will 
not  lie  against  a  receiver  for  a  personal  injury  sustained  before 
his  appointment.^^ 

In  a  proper  case  after  the  appointment  of  a  receiver  the  Fed- 
eral court  may  enjoin  suits  previously  or  subsequently  brought 
which  interfere  with  the  administration  of  the  assets."  Such 
injunctions  have  been  granted  to  enjoin  the  continuance  of  a 
suit  previously  begun  to  enforce  a  lien  on  the  property ;  in  which 
the  plaintiff  had  been  guilty  of  laches.^^  rp^  enjoin  a  separate 
action  against  a  party  to  the  foreclosure  suit  to  enforce  an 
agreement  to  make  advances  for  interest  and  a  sinking  fund." 
To  enjoin  a  suit  to  collect  an  extension  note  which  matured 
before  other  extension  notes,  all  issued  under  a  scheme  of  ex- 
tension to  which  the  note  in  suit  referred,  when  tiie  early  ma- 
turity of  the  note  in  suit,  had  been  concealed  from  the  other 
creditors  and  its  collection  would  have  been  given  its  holder 
an  unconscionable  preference  in  the  distribution  of  the  prop- 
erty  in  the  hands  of  the  receiver.^^ 

It  has  been  held  that  the  Federal  court  should  not  enjoin 
suits  against  the  owners  of  property  in  its  possession  which 
will  not  interfere  with  the  possession,^^  nor  an  action  to  fore- 
close a  mortgage  upon  property  in  the  hands  of  its  receiver.^"^ 

Following  the  analogy  of  action  authorized  by  statute  in 
admiralty  and  bankruptcy,  the  Federal  courts  sometimes,   in- 

49  Ibid.  63  Henry   M.   Jacksou   v.   Parkers- 

60  Hupfeld  V.  Automatic  Piano  lung  &  Ohio  Valley  Elec.  Ry.  Co., 
Co.,  66  Fed.  788.  Cf.  Curran  v.  2:v.i  Fed.  78-t,  but  see  supra,  §§52, 
Craig,  22  Fed.  101.  5r,. 

61  Finance  Co.  of  Pa.  v.  Charles-  64  Equitable  Trust  Co.  v.  Western 
ton  C.  &  C.  R.  Co.,  46  Fed.  508.  Pac.  Ry.  Co.,  2.31  Fed.  478. 

62  Equitable  Trust  Co.  of  New  55  Security  Inv.  Co.  of  Pitts,  v. 
York  V.  Western  Pac.  Ry.  Co.,  231  First  Nat.  Bank  of  Beaumont,  Tex., 
Fed.  478;  Henry  M.  Jackson  v.  C.  C.  A.,  20.'?  Fed.  632. 
Parkersburg  &  Ohio  Valley  Elec.  66  Equitable  Trust  Co.  of  N.  Y. 
Ry.  Co.,  233  Fed.  784;  Security  v.  Pollitz,  C.  C.  A.,  207  Fed.  74. 
Inv.  Co.  of  Pitts.  V.  First  Nat.  67  Westinghouse  Elec.  &  Mfg.  Co. 
Bank  of  Beaumont,  Tex.,  C.  C.  A.,  v.  Binglianiton  Ry.  Co.,  25.1  Fed. 
203  Fed.  632 ;  supra,  §  270a.  378,  385. 


1598  RECEIVERS  [§  315 

elude  in  the  order  for  the  appointment  of  a  receiver  of  the 
property  or  a  corporation  injunctions  against  the  commence- 
ment or  continuance  of  a  suit  against  the  company  by  any 
creditor  in  a  State  court.  This  practice  is  not  justified  by  prec- 
edent. It  is  in  conflict  with  the  public  policy  of  the  United 
States  as  expressed  in  the  Act  of  Congress  authorizing  suits 
against  Federal  receivers  without  the  consent  of  the  courts  that 
appointed  them,^^  ^^^^  jg  forbidden  in  the  Clayton  Act.^^ 

That  such  an  order  cannot  enjoin  without  special  reason,  suits 
previously  instituted  has  been  held  by  a  Circuit  Court  of  Ap- 
peals.^°  A  clause  in  an  order  appointing  a  receiver  of  property 
of  a  corporation,  restraining  the  defendant  and  other  persons 
from  interfering  with  or  assuming  control  of  the  claims  and 
causes  of  action  of  the  company,  does  not  prevent  the  prosecu- 
tion of  a  previous  suit  bj'  stockholders  against  the  defendant 
and  its  directors  to  enforce  a  cause  of  action  held  by  the  com- 
pany against  the  latter.^^ 

§  315.  Manner  of  applying  for  the  appointment  of  a  receiver. 

It  has  been  held  that  a  court  has  no  jurisdiction  to  appoint  a 
receiver,  unless  a  cause  is  pending ;  ^  and  that,  therefore,  will 
never  be  appointed  upon  petition  ^  when  no  suit  has  been  begun, 
except  in  the  case  of  lunatics.^  The  grounds  of  the  exception 
and  the  reasons  why  it  does  not  extend  to  infants  are  not  very 
clear.^ 

After  a  suit  has  been  begun,  however,  a  receiver  may  be  ap- 
pointed at  any  stage  of  it  when  a  necessity  is  shown, — before 
appearance,^  between  appearance  and  answer,^  between  answer 
and  decree,'  at  the  decree,^  or  afterwards,  if  the  cause  is  still 

58  Judicial  Code,  §  66,  see  §  314  Bank  v.  Kent  Circuit  Judge,  43 
infra.  Mich.  292. 

59  §  19,  38  St.  at  L.  737,  Comp.  3  Ex  parte  Eadcliffe,  1  J.  &  W. 
St.  §  1243c.     Supra,  §291.  639;    Anon.,   1   Atk.   578;   Ex  parte 

60  Central    Trust    Co.    v.    Chicago  Warren,  10  Ves.  622. 

Ey.  Co.,  C.  C.  A.,  224  Fed.  706,  in  4  Ex  parte  Whitfield,  2  Atk.  315. 

which  the  author  was  counsel.  5  Tanfield   v.  Irvine,   2  Russ.   149. 

61  Am.  Steel  Foundries  v.  Chicago  6  Vann  v.  Barnett,  2  Brown  Ch. 
Ry.  &  Tr.  Co.,  231  Fed.  1003,  in  C.  158;  Metcalfe  v.  Pulvertoft,  1  V. 
which  the  author  was  counsel.  &  B.  180. 

§  315.     1  In    re    Brant,    96    Fed.  7  Kershaw    v.    Mathews,    1    Russ. 

257,  Anon.,  1  Atk.  578.     See   §324.  361. 

2  In  re  Brant,  96  Fed.  257;  Anon.,  8  Osborne  v.  Harvey,  1  Y.  &  C.  N. 

1   Atk.   578;    Ex  parte  Whitfield,   2  E.   116. 
Atk.    315;    Merchants'    &    M.    Nat. 


§  315] 


APPLICATION    FOR    APPOINTMENT 


1599 


open  ^  aiul  the  couiplainant  is  nut  in  default. ^°  But  a  ease  of 
pressing  necessity  must  exist  to  justify  the  appointment  of  a 
receiver  before  answer.^^  An  objection  to  the  bill  on  account 
of  multifariousness  or  a  misjoinder  of  parties  will  not  prevent 
the  appointment  of  a  receiver;  nor  will  the  pendency  of  a  motion 
for  leave  to  amend  the  bill,^^  unless  indeed  the  proposed  amend- 
ment would  change  materialh*  the  allegations  showing  the  neces- 
sity for  a  receiver. 

The  bill  should  lay  the  foundation  for  the  appointment  by 
stating  the  facts  which  show  its  necessity  and  propriety,^'  and 
should  contain  a  i)rayer  for  a  receiver.^*  If,  however,  a  state 
of  facts  subsequently-  arise  making  the  appointment  necessary, 
it  may  probably  ])e  made  without  an  amendment  of  the  original 
or  the  filing  of  a  supplemental  bill.^^  The  application  for  a 
receiver  should  be  supported  by  evidence  showing  that  the  ap- 
pointment is  necessary.^^  If  the  application  is  made  before 
decree,  the  affidavits  should  be  founded  upon  the  allegations 
in  the  bill.^'''  If  statements  not  founded  on  allegations  in  the 
bill  and  alleging  facts  which  existed  and  were  known  before  the 
bill  was  filed,  are  introduced  into  the  affidavits,  it  seems  that 
the  court  will  not  consider  them,^^  and  even  if,  where  the  case 
made  by  the  bill  fails,  sufficient  ground  for  a  receiver  is  con- 
fessed in  the  answer,  it  seems  that  a  receiver  should  be  denied 


9  Cooke  V.  Gwyn,  3  Atk.  689; 
Atty.  Gen.  v.  Mayor  of  Galway,  1 
Molloy,  95;  Bowman  v.  Bell,  14 
Sim.   392. 

10  Harrington  v.  Union  Oil  Co., 
144   Fed.    235. 

11  Latham  v.  ChaflFec,  7  Fed.  525. 
See  Union  Mut.  Life  Ins.  Co.  v. 
Union  Mills  P.  Co.,  3  L.R.A.  90,  37 
Fed.  287. 

12  Barnard  v.  Darling,  1  Barb. 
Ch.    (N.  Y.)    76. 

13  Tonilinson  v.  "Ward,  2  Conn. 
396;  Verplanck  v.  Mercantile  Ins. 
Co.,  2  Paige  (N.  Y.),  438.  But  see 
Hottenstein  v.  Conrad,  9  Kan.  435. 

14  Eq.  Rule  25.  But  see  Osborne 
V    Harvey.  1  Y.  &  C.  X.  R.  116. 

16  Malcolm  v,  Montgomery,  2  Mol- 


loy,  500;    Hottenstein   v.   Conrad,   9 
Kan.  435. 

16  Middleton  v.  Dodswell,  13  Ves. 
266;  Kerr  on  Receivers  (2d  Am. 
ed.),  154.  It  was  held  in  a  State 
court  that  a  bill  praying  for  a  re- 
ceiver sworn  to  "as  ])cing  true  to 
the  best  of  afRaut  's  knowledge  and 
belief, ' '  is  not  sufficiently  verified. 
Smith  Dinunick  Lumber  Co.  v. 
Tcague,  24  South.  4. 

17  Dawson  v.  Yates,  1  Beav.  301, 
306;  Cremen  v.  Hawkes,  2  Jones 
&  La.  T.  674;  Kerr  on  Receivers 
(2d  Am.  ed.),  154. 

18  Dawson  v.  Yates,  1  Beav.  301, 
306;  Kerr  on  Receivers  (2d  Am. 
ed.),  154. 


1600 


BECEIVERS 


[§315 


the  plaintiff,  at  least  until  he  has  amended  his  bill.^^  Where 
the  application  is  made  ex  parte,  it  is  the  complainant's  duty 
to  make  a  full,  frank,  and  complete  statement  of  all  facts  which 
might  affect  the  action  of  the  court-^**  After  an  application 
for  a  receiver  has  been  once  denied,  a  second  application  sup- 
ported by  the  same  papers  will  rarely  be  granted.^^  The  former 
rule  was  that,  after  answer,  a  plaintiff  when  moving  for  a  re- 
ceiver could  only  rely  upon  the  admissions  in  the  answer ;  ^^ 
but  now  a  sworn  answer  is  given  upon  such  a  motion  little  more 
effect  than  an  ordinary  affidavit,  and  may  be  contradicted  by 
affidavits  in  support  of  the  bill.^^ 

The  appointment  is  usually  only  made  upon  notice  and  is 
very  rarely  granted  ex  parte.^^  Less  than  one  day's  notice  has 
been  held  to  be  insufficient.^^  A  receiver  may,  however,  be  ap- 
pointed ex  parte,  if  that  is  the  only  way  to  preserve  the  property 
from  destruction  or  serious  injury,  or  removal  beyond  the  juris- 
diction of  the  court.^^     It  has  been  said  that  a  receiver  of  the 


19  Cremen  v.  Hawkes,  2  Jones  & 
La.  T.  674;  Kerr  on  Eeceivers  (2d 
Am.  ed.),  154. 

20  Burroughs  v.  Toxaway  Co.,  182 
Fed.  129. 

21  Fenton  v.  Lumberman 's  Bank, 
Clarke  Ch.   (N.  Y.)   360. 

22Danieirs  Ch.  Pr.  (2d  Am.  ed.) 
1976.  See  Goodman  v.  Whitcomb, 
1  J.  &  W.  589;  Kershaw  v. 
Mathews,  1  Euss.  361. 

23  Allen  v.  Dallas  &  W.  E.  Co., 
3  Woods,  316,  332, 

24iB]ondheim  v.  Moore,  11  Md. 
365;  People  v.  Norton,  1  Paige  (N. 
Y.),  17;  Sandford  v.  Sinclair,  8 
Paige  (N.  Y.),  373;  Miltenberger 
V.  Logansport  Ey.  Co.,  106  U.  S, 
286,  27  L.  ed.  117. 

25  St.  Louis,  K.  C.  &  C.  Ey.  Co. 
V.  Dewees,  23  Fed.  691. 

26  Phelps  V.  Mutual  Eeserve,  etc., 
Ass'n,  C.  C.  A.,  61  L.E.A.  717,  112 
Fed.  453;  Worth  Mfg.  Co.  v.  Bing- 
ham, C.  C.  A.,  116  Fed.  785;  Re 
Francis,  136  Fed.  912;  holding  that 
such    an    appointment,    without    no- 


tice to  a  defendant  who  is  not  pres- 
ent, was  not  unconstitutional  as  a 
taking  of  his  property  without  due 
process  of  law.  In  Buchanan  v. 
Bay  State  Gas  Co.,  U.  S.  C.  C.  D., 
Del.  Oct.  15,  1896,  in  which  the 
writer  was  counsel.  Judge  Wales  ap- 
pointed a  receiver  ex  parte  upon 
documentary  evidence.  Also  in  a  later 
ease  Judge  Kirkpatrick  in  U.  S.  C. 
C.  D.,  N.  J.,  appointed  a  receiver 
ex  parte.  Brady  v.  Bay  State  Gas 
Co.,  106  Fed.  584.  Latimer  v.  Mc- 
Neal,  C.  C.  A.,  142  Fed.  451;  Mann 
V.  Gaddie,  C.  C.  A.,  158  Fed.  42; 
Taylor  v.  Easton,  C.  C.  A.,  180  Fed, 
363.  In  Weiss  v.  Haight  &  Freese 
Co.,  May,  1906,  in  which  the  writer 
was  counsel,  Judge  Lowell  made 
such  an  appointment;  affirmed  on 
the  ground  of  waiver  in  Haight  & 
Freese  Co.  v.  Weiss,  C.  C.  A.,  156 
Fed.  328;  certiorari  denied  207  U. 
S.  594,  52  L.  ed.  356;  Burroughs  v. 
Toxaway  Co.,  182  Fed.  129;  Su- 
preme Council  of  Eoyal  Arcanum 
v.   Hobart,  C.  C.  A.,  244  Fed.  385; 


5;  315] 


APPLICATION    FOR    APPOINTMENT 


1601 


assets  of  a  railroad  company  should  rarely  be  appointed  in  a  suit 
to  which  no  stockholders  or  bondholders  are  actually  parties." 
It  was  held  that  a  committee  of  bondholders  whose  misconduct 
is  one  of  the  grounds  for  the  receivership  are  not  indispensable 
parties.2*  Where  the  officer  of  a  corporation  who  had  been 
served  with  notice  of  a  motion  for  the  appointment  of  a  receiver 
fraudulently  concealed  that  fact  from  his  associates,  and  did 
not  oppose  the  motion,  although  no  collusion  with  the  plaintiff 
was  shown,  a  motion  to  vacate  the  appointment  was  entertained.^® 
A  delay  of  one  month  after  knowledge  of  the  appointment  of 
a  receiver,  who  had  expended  in  the  improvement  of  the  prop- 
erty money  furnished  him  by  others,  was  held  such  acquiescence 
as  to  estop  a  party  from  moving  to  vacate  the  order  of  appoint- 
ment for  irregularity  because  granted  without  notice  to  him.^" 
Except  in  an  extraordinary  case,  a  receiver  will  not  be  appointed 
over  property  in  the  possession  of  a  stranger  to  the  suit.^^  Wlicn 
it  appears  that  the  court  has  no  jurisdiction  the  bill  should  be 
dismissed  by  the  court  on  its  own  motion  "however  the  knowl- 
edge may  be  acquired.  "^^  The  objection  that  the  complainant 
is  not  a  judgment  creditor  is  waived  unless  specifically  made  at 
the  time  of  the  application  for  the  appointment.^^    Allegations 


Gibson  v.  Martin,  8  Paige  (N.  Y.), 
481;  Johns  v.  Johns,  23  Ga.  31; 
Triebert  v.  Burgess,  11  Md.  452; 
Gibbons  v.  Mainwaring,  9  Sim.  77; 
Miltenberger  v.  Logansport  Ry.  Co., 
106  U.  S.  286,  27  L.  ed.  117;  Bar- 
ley V.  Gittings,  15  App.  D.  C.  421, 
437;  Hendrix  v.  Am.  Freehold,  etc., 
Co.,  95  Ala.  313.  See  Harv.  Law 
Rev.  XV,  849 ;   supra,  §  304. 

27  Overton  v.  Memphis  &  L.  R? 
Co.,  10  Fed.  866.  But  see  Central 
T.  Co.  V.  Texas  &  St.  L.  Ry.  Co., 
24  Fed.  153.  The  absence  of  the 
defendant  from  the  jurisdiction  or 
inability  to  find  and  serve  him  or 
some  urgent  emergency,  making  the 
interference  of  the  court  necessary 
to  prevent  loss  of  the  property,  are 
sufficient  grounds  for  an  appoint- 
ment    without     notice.       Mann     v. 


Gaddie,  C.  C.  A.,  158  Fed.  42;  Ver- 
planck  v.  Mercantile  Ins.  Co.,  2 
Paige  (N.  Y.)  438;  People  v.  Al- 
bany &  Susquehanna  R.  R.  Co.,  38 
How.  Pr.   (N.  Y.)   228,  252. 

28  Lowenthal  v.  Georgia  Coast  & 
P.  R.  Co.,  233  Fed.  1010. 

29  Allen  v.  Dallas  &  W.  R.  Co.,  3 
Woods  316. 

30  Ibid. 

31  Searles  v.  Jacksonville,  P  &  M. 
R.    C,    2    Woods    621.       See    also 

Davis  V.  Gray,  16  Wall.  203,  218, 
21  L.  ed.  447,  452. 

32  Scattergood  v.  American  Pipe 
&  Construction  Co.,  C.  C.  A.,  249 
Fed.  23. 

33  L.  D.  George  Lumber  Com- 
pany V.  Daugherty,  C.  C.  A.,  214 
Fed.  958. 


1602 


RECEIVERS 


[§316 


of  collusion  are  insufficient  to  support  a  motion  to  vacate  the 
appointment  when  they  are  not  supported  by  any  facts.^* 

§  316.  Who  may  apply  for  the  appointment  of  a  receiver. 
A  receiver  is  usually  appointed  upon  the  application  of  the 
plaintiff.  Before  a  decree  it  seems  that  one  defendant  cannot 
move  for  a  receiver,^  unless  he  has  filed  a  cross-bill  or  counter- 
claim praying  for  one.^  After  a  decree,  however,  he  may,  in 
a  proper  case,  obtain  a  receiver  of  the  property  of  a  co-defend- 
ant upon  petition,^  but  not  usually  over  the  property  of  the 
plaintiff  without  a  cross-bill.* 

§317.  Manner  of  the  appointment  of  a  receiver.  By  the 
English  practice,  which  was  followed  in  New  York  before  the 
passage  of  statutes  altering  it,  when  an  application  for  the  ap- 
pointment of  a  receiver  was  granted,  the  selection  of  the  receiver 
was  referred  to  a  master  in  chancery,  whose  action  was  subject 
to  the  confirmation  of  the  court. ^  The  same  master  usually 
exercised  supervision  over  contracts  made  by  the  receivers  and 
the  adjustment  of  his  compensation. ^  In  the  Federal  courts, 
however,  it  is  the  customary  practice  for  the  judge  to  appoint 
and  often  to  supervise  a  receiver  himself,  without  the  aid  of  a 
master,  except  when  the  accounts  are  passed.^ 

The  order  is  not  void  because  the  bill  is  demurrable  for  want 
of  equity,  or  because  the  bill  is  not  verified.*  The  denomination 
of  a  per.son  appointed  with  authority  to  bring  a  suit,  as  a  special 


34  Welch  V.  Union  Casualty  Ins. 
Co.,  2.38  Fed.  968. 

§.316.  1  Robinson  v.  Hadley,  11 
Beav.  614;  Leddel's  Ex'r  v.  Starr, 
19  N.  J.  Eq.  (4  C.  E.  Green)  159. 
But  see  Sargant  v.  Eead,  L.  R.  1 
Ch.  D.  600;  Henshaw  v.  Wells,  9 
Humph.    (Tenn.)    568. 

2Grote  V.  Bury,  1  W.  R.  92; 
Robinson  v.  Hadley,  11  Beav.  614; 
Kerr  on  Receivers  (2d  Am.  ed.) 
153,  154. 

3  Barlow  v.  Gains,  8  Beav.  329; 
Hiles  V.  Moore,  15  Beav.  175;  Kerr 
on  Receivers    (2d  Am.  ed.)    154. 

4  Grote  v.  Bury,  1  W.  R.  92 ;  Rob- 
inson V.  Hadley,  11  Beav.  614;  Kerr 
on  Receivers  (2d  Am.  ed.)  153, 
154. 


§317.  1  Creuze  v.  Bishop  of 
London,  Dick.  687;  Thomas  v.  Daw- 
kin,  1  Ves.  Jr.  452;  In  re  Eagle 
Iron  Works,  8  Paige  (N.  Y.),  385; 
High  on  Receivers,  §90;  Daniell's 
Ch.  Pr.   (2d  Am.  ed.)  1976. 

2  Tliornhill  v.  Thornhill,  14  Sim- 
ons 600. 

3  Miltenbergcr  v.  Logansport  Ry. 
Co.,  106  U.  S.  286,  27  L.  ed.  117; 
Buck  V.  Piedmont  &  A.  L.  Ins.  Co., 
4  Fed.  849;  Frank  v.  Denver  &  R. 
G.  Ry.  Co.,  23  Fed.  757.  But  see 
Taylor  v.  Phila.  &  R.  R.  Co.,  7  Fed. 
379;  s.  c,  9  Fed.  1;  Cowdrey  v. 
Railroad  Co.,  1  Woods  331,  341. 

4  Clark  V.  Brown,  C.  C.  A.,  119 
Fed.  130. 


§  318-]  WHO  SHOULD   BE   Al'PUIXTED  1003 

master  instead  of  as  a  receiver,  will  not  affect  the  validity  of 
the  order.^ 

In  a  stockholder's  suit,  the  entry  of  an  order  appointing  a 
receiver,  with  instructions  to  sell  all  of  the  property  of  a  cor- 
poration, without  determining  any  of  the  issues  so  tried  and 
s\d)niitted,  was  held  unauthorixed  and  erroneous.^ 

§317a.  Disapproval   of   the    appointment   of   the    receiver. 
The  Judicial   C'udc  provides:   "Wiiore  in  any  suit  in  which   a 
receiver  shall  l)e  appointed  the  land  or  other  property  of  a  fixed 
charactci',  the  subject  oi"  tlic  suit,  lies  within  different  States  in 
the    same    judicial    circuit,    the   receiver    so    appointed    shall, 
upon   giving  bond   as   required   by   the   court,   immediately    be 
vested  with  full  jurisdiction  and  control  over  all  the  proi)erty, 
the  subject  of  the  suit,  lying  or  being  within  such  circuit ;  sub- 
ject, however,  to  the  disapproval  of  such  order,  within  thirty 
days  thereafter,  by  the  Circuit  Court  of  Appeals  for  such  cir- 
cuit, or  by  a  circuit  judge  thereof,  after  reasonable  notice  to 
adverse  parties  and  an  opportunity  to  be  heard  upon  the  motion 
for  such  disapproval ;  and  subject,  also,  to  the  filing  and  entering 
in  the  district  court  for  each  district  of  the  circuits  in  which  any 
portion  of  the  property  may  lie  or  be,  within  ten  days  thereafter, 
of  a  duly  certified  copy  of  the  bill  and  of  the  order  of  appoint- 
ment.   The  disapproval  of  such  appointment  within  thirty  days, 
or  the  failure  to  file  such  certified  copy  of  the  bill  and  order  of 
appointment  within  ten  days,  as  herein  required,  shall  divest 
such  receiver  of  jurisdiction  over  all  such  property  except  that 
portion  thereof  lying  or  being  within  the  State  in  which  the  suit 
is*  brought.     In  any  case  coming  within  the  provisions  of  this 
section,   in   which  a  receiver  shall  be  appointed,  process  ma 
issue  and  be  executed  within  niiy  district  of  the  circuit  in  the 
same  manner  niid  to  the  same  extent  as  if  the  property  were 
wholly  within  the  same  district;  but  orders  affecting  such  prop- 
erty shall  be  entered  of  record   in   each   district   in  which   the 
propei'ty  aft'ected  may  lie  or  b(\"'  ^ 

§  318.  Who  should  be  appointed  receiver.    As  a  general  rule, 
no  one  should  be  niipoi'itcd  receiver  of  jiroperty  who  has  any 

6  Royal  Tiia.  Co.  v.  Miller,  199  U.  Co.  v.  Gila  Water  Co.,  202  U.  S.  270, 

S.  3.'"j3,  50  L.  etl.  226;   Tenalio  Min-  50  L.  erl.  102.'^. 

iug  &  Smeltincr  Co.  v.  Bates,   C.  C.  ^  Ula.     Uud.  Code.   §56,  36  St. 

A.,  220  Fed.  ToG.  at  L.  1102;  supra,  §306. 

6  Gila  Bend  Reservoir  &  Irrigation 


1604 


RECEIVERS 


[§318 


interest  therein,^  or  is  in  any  way  connected  with  the  litigation 
in  the  course  of  which  the  appointment  is  made,^  or  is  nearly 
related  to,^  or  is  in  the  employ  of,  any  of  the  parties  thereto,* 
or  who,  if  he  should  receive  the  appointment,  would  occupy  two 


§  318.  1  Wiswell  v.  Starr,  48 
Me.  401.  The  son  or  brother  of  a 
party  to  a  cause  should  not  be  ap- 
pointed receiver  over  property 
which  is  the  subject  of  the  litiga- 
tion, Williamson  v.  Wilson,  1  Bland 
(Md.)  418;  Taylor  v.  Oldham,  Jac, 
527;  but  see  Shainwald  v.  Lewis,  8 
Fed.  878.  Nor  should  the  next 
friend  of  an  infant,  whose  duty  it 
is  to  protect  his  interest,  be  ap- 
pointed receiver  over  his  estate. 
Stone  V.  Wishart,  2  Madd.  64;  nor 
an  active  trustee  over  the  trust 
estate,  Sutton  v.  Jones,  15  Ves.  584; 
V.  JoUand,  8  Ves.  72;  al- 
though a  mere  dry  trustee  may  be 
thus  appointed,  Sutton  v,  Jones, 
15  Ves.  584;  nor  should  a  master 
in  chancery,  whose  duty  it  is  to 
pass  receivers'  accounts,  be  ap- 
pointed a  receiver,  Ex  parte 
Fletcher,  6  Ves.  427.  It  has  also 
been  said  in  England,  ' '  that  the 
receiver-general  of  taxes  for  a 
county  cannot  be  appointed  a  re- 
ceiver; for  having  given,  as  such, 
security  to  the  crown,  if  he  were  to 
become  indebted  to  the  crown  and 
to  the  estate,  the  crown  might,  by 
its  prerogative  process,  sweep  away 
all  his  property. ' '  Daniell  's  Ch. 
Pr.  (2d  Am.  ed.)  1973.  See  Atty. 
Gen.  V.  Day,  2  Madd.  246,  254.  And 
Lord  Eldon  held  that  a  peer  could 
not  be  a  receiver,  because,  ' '  in  many 
instances,  a  receiver  may  be 
committed."  Atty.  Gen.  v.  Gee,  2 
V.  &  B.  208.  It  was  held  improper 
to  appoint  as  assignee  in  bank- 
ruptcy of  a  corporation  one  who 
had  been  appointed  by  a  State  court 


receiver  of  its  assets.  In  re  Stuy- 
vesant  Bank,  5  Ben.  566  s.  c,  6 
N.  B.  R.  272.  But  it  was  subse- 
quently held  eminently  proper  to 
appoint  as  a  receiver  of  the  assets 
of  an  insolvent  corporation  one  who 
by  the  laws  of  the  State  that  char- 
tered it  was  the  official  custodian 
of  its  assets  in  case  of  its  insol- 
vency even  though  that  State  was 
in  another  Circuit  from  the  one 
in  which  the  suit  for  a  receiver  was 
brought,  and  the  officer  did  not  re- 
side within  the  jurisdiction  of  the 
court.  In  this  case  it  was  made  a 
condition  of  the  appointment  that 
the  receiver  should  pay  into  the  reg- 
istry of  the  court  the  proceeds  of 
all  assets  collected  within  its  juris- 
diction, but  he  was  allowed  to  give 
sureties  who  were  residents  of  the 
State  where  he  dwelt.  Taylor  v. 
Life  Ass'n  of  Am.,  3  Fed.  465. 

2  Baker  v.  Backus,  32  111.  79; 
Garland  v.  Garland,  2  Ves.  Jr.  137; 
State  Tr.  Co.  v.  Nat.  Land  &  Mfg. 
Co.,  72  Fed,  575;  Wood  v.  Oregbn 
Dev.  Co.,  55  Fed.  901;  Chicago 
Great  Western  E.  Co.  v.  Hulbert, 
C.  C.  A.,  205  Fed.  248;  Dill  v.  Su- 
preme Lodge,  Knights  of  Honor, 
226  Fed.  807;  Berwind-White  Coal 
Mining  Co.  v.  Eastern  Steamship 
Corp.,  228  Fed.  726;  United  States 
V.  Illinois  Surety  Co.,  238  Fed.  840. 

3  Williamson  v.  Wilson,  1  Bland 
(Md.)    418. 

4  Baker  v.  Backus,  32  111.  79; 
Atty  Gen.  v.  Bank  of  Columbia,  1 
Paige  (N.  Y.)  511;  Buck  v.  Pied- 
mont &  A.  L.  Ins.  Co.,  4  Fed.  849. 


318] 


WHO   SHOULD  BE   APPOINTED 


1603 


inconsistent  positions;^  nor  a  person  who  is  not  familiar  with 
the  management  of  similar  propei-ty,^  and  able  to  give  snflfieient 
attention  to  the  management  of  his  trustJ 

The  court  may,  however,  under  special  circumstances  appoint 
as  receiver  a  trustee,*  a  person  interested  in  the  subject  of  the 
suit,®  or  even  a  part.y  to  the  suit,^°  or  his  near  relation. ^^  Tiiis, 
however,  should  rarely  be  done,  unless  by  consent,  or  possil)ly 
when  it  clearly  appears  to  be  for  the  interest  of  all  concerned ;  ^^ 
and  in  such  a  case  by  the  English  practice  the  receiver  was 
usually  obliged  to  act  without  compensation  if  he  accepted  the 
trust.  13 

A  stockholder,!*  a  member,!^  an  officer  or  a  director,  of  a  cor- 
poration should  ordinarily  not  be  appointed  receiver  of  the 
same,!^  especially  when  he  has  been  connected  with  or  assented 


6  stone  V,  Wishart,  2  Madd.  64; 
Ex  parte  Fletcher,  6  Ves.  427. 

6  Liipton  V.  Stephenson,  11  Ir. 
Eq.  484,  But  it  was  held  that  a 
person  was  not  disqualified  from 
appointment  as  receiver  of  a  rail- 
road because  he  was  not  a  citizen 
of  the  State  where  the  railroad  was 
chartered  and  situated;  nor  be- 
cause he  was  not  a  railroad  expert 
and  was  unacquainted  with  the 
mechanical  details  of  the  railroad. 
Farmers'  L.  &  Tr.  Co.  v.  Cape  Fear 
&  Y.  Val.  R.  Co.,  62  Fed.  675.  Con- 
tra, Wynne  v.  Lord  Newborough,  15 
Ves.  283.  Nonresidents  are  often 
appointed  ancillary  receivers.  Bayne 
V.  Brewer  Pottery  Co.,  82  Fed.  391. 

7  Wynne  v.  Lord  Newborough,  15 
Ves.  283;  Gibbs  v.  David,  L.  R.  20 
Eq.   373. 

SSykes  v,  Hastings,  11  Ves.  363; 
Sutton  V.  Jones,  15  Ves.  584;  Gard- 
ner V.  Blane,  1  Hare,  381;  Powys 
V.  Blagrave,  18  Jur.  463;  Ames  v. 
Birkenhead  Docks,  20  Beav.  332; 
Potts  V.  Warwick  &  B.  C.  N.  Co., 
Kay,  143;  Kerr  on  Receivers  (2d 
Am',  ed.)    136-139. 

9  Hoffman  v.  Duncan,  18  Jur.  69 ; 
Fed.  Prac.  Vol.  11—31 


Powys    V.    Blagrave,    18    Jur.    462; 
Kerr  on  Receivers  (2d  Am.  ed.)  136. 

10  Wilson  V.  Greenwood,  1  Swanst. 
471;  Blakeney  v.  Dufaur,  15  Beav. 
40;  Robinson  v.  Taylor,  42  Fed. 
803,   812. 

11  Shainwald  v.  Lewis,  8  Fed.  878. 

12  Atkins  V.  Wabash,  St.  L.  &  P. 
Ry.  Co.,  29  Fed.  161;   Kerr  on  Re 
ceivers  (2d  Am.  ed.)   136-139. 

13  Wilson  v.  Greenwood,  1  Swanst. 
471,  483;  Blakeney  v.  Dufaur,  15 
Beav.  40;  Hoffman  v.  Duncan,  18 
Jur.  69;  Powys  v.  Blagrave,  18  Jur. 
463.  But  see  Newport  v.  Bury,  23 
Beav.  30. 

14Wiswell  V.  Starr,  48  Me.  401; 
Atkins  V.  Wabash,  St.  L.  &  P.  Ry. 
Co.,  29  Fed.  161;  but  see  People 
V.  Illinois  B.  &  L.  Ass'n,  56  111. 
App.  642. 

15  Dill  V.  Supreme  Lodge,  Knights 
of  Honor,  226   Fed.   807. 

16  Buck  V.  Piedmont  &  A.  L.  Ins. 
Co.,  4  Fed.  849;  Atkins  v.  Wabash, 
St.  L.  &  P.  Ry.  Co.,  29  Fed.  161. 
Finance  Co.  of  Pa.  v.  Charleston, 
C.  &  S.  C.  R.  Co.,  45  Fed.  436; 
Obnstead  v.  Distilling  &  C.  F.  Co., 
G7   Fed.   24;    but  see  Farness   L.   & 


1606 


RECEIVERS 


[§  318 


to  the  transactions  that  lead  to  its  insolvency ;  ^^  but  under  spe- 
cial circumstances,  when  it  is  necessary  to  obtain  the  advantage 
of  his  knowledge  of  its  affairs  and  he  cannot  otherwise  be  em- 
ployed, such  an  officer  or  director  may  be  appointed ;  "  although, 
in  such  a  case,  it  is  advisable  to  join  a  disinterested  person  witl 
him  as  a  co-receiver.^^  The  fact  that  directors  of  a  corporation 
which  has  been  appointed  receiver  are  also  directors  of  the  in- 
solvent corporation  may  be  a  sufficient  cause  for  objecting  to  its 
appointment  or  for  joining  with  it  a  disinterested  person.^o  In 
one  case,  the  court  held  that  the  fact  that  there  was  a  possible 
claim  on  the  part  of  the  corporation  against  one  of  several  re- 
ceivers was  no  ground  for  removing  him,  until  the  court  or  his 
associates  had  determined  to  prosecute  the  claim.^i  When  a 
party  to  the  cause  is  appointed  receiver  in  it,  he  does  not  thereby 
lose  his  privilege  of  acting  as  party.^^  it  has  been  held  in 
Tennessee,  that  no  one,  not  even  a  clerk  of  the  court,  can  1, 
made  a  receiver  against  his  will.^' 

Recent  statutes  provide  that  no  clerk  or  deputy  clerk  of  a 
Federal  court  shall  be  appointed  receiver  except  for  special 
reasons  which  must  be  assigned  in  the  order  of  appointment ;  ^* 
and  that  "no  person  related  to  any  justice  or  judge  of  any  court 
of  the  United  States  by  affinity  or  consanguinity,  within  the 
degree  of  first  cousin,  shall  hereafter  be  appointed  by  such  court 
or  judge  to  or  employed  by  such  court  or  judge  in  any  office  or 
duty  in  any  court  of  which  such  justice  or  judge  may  be  a  mem- 


Tr.  Co.  V.  No.  Pac.  E.  Co.,  61  Fed. 
546;  Coy  v.  Title  Guarantee  &  Tr. 
Co.,  157  Fed.  794;  Attorney  Gen- 
eral V.  Bank  of  Columbia,  1  Paige 
(N.  Y.)  511;  Baker  v.  Backus,  32 
111.  79.  Cf.  He  Gordon  Supply  & 
Mfg.  Co.,  129  Fed.  622.  See  High 
on    Eeceivers    (4th    ed.),    §§  63-81a. 

17  Coy  V.  Title  Guarantee  &  Tr. 
Co.,  157  Fed.  794. 

18  State  Tr.  Co.  v.  Nat.  Land 
Imp.  &  Mfg.  Co.,  72  Fed.  575; 
Bowling  Green  Trust  Co.  v.  Vir- 
ginia Passenger  &  Power  Co.,  133 
Fed.   186;    Cole  v.  Phila.  &  E.  Ry. 


Co.,  140  Fed.  944;  but  see  People 
V.  Illinois  B.  &  L.  Ass'n,  56  111. 
App.  642. 

19  Cole  V.  Phila.  &  E.  Ry  Co.,  14U 
Fed.  944. 

20  Cole  V.  Phila.  &  E.  Ry.  Co., 
140  Fed.  944. 

21  Land  Title  &  Trust  Co.  v.  As- 
phalt Co.  of  America,  120  Fed.  996. 

22  Scott  V.  Platel,  2  Phil.  229; 
Cowdrey  v.  Railroad  Co.,  1  Woods 
331,  350. 

23  Waters  v.  Carroll,  9  Yerg, 
(Tenn.)    102. 

24  20  St.  at  L.,  415. 


§  319]  receivers'  bonds  1607 

ber."''^  A  State  statute  j)roliil)itiiifr  Ili<'  appointnu'iit  of  non- 
residents as  receivers  is  not  binding'  upon  a  Federal  court.^® 

An  order  may  provide  for  the  appointment  of  a  receiver  in 
the  alternative  to  other  relief.^"^ 

§319.  The  receiver's  security.  As  a  general  rule,  the  order 
for  the  ajipointment  of  a  i-eceiver  provides  that  he  shall  give 
good  and  sufificient  security  for  the  faithful  performance  of  his 
duties.^  This,  by  the  English  practice,  was  usually  a  recog- 
nizance entered  into  by  the  receiver  and  two  or  more  sureties, 
whereby  they,  the  cognizers,  acknowledged  "themselves  to  be 
indebted  to  the  cognizecs  (usually  the  Master  of  the  Rolls  and 
the  .senior  Master  of  the  Court)  in  certain  sums  of  money  to  lie 
paid  on  certain  days  therein  mentioned;  in  default  of  wiiicli 
the,y  will  and  agree  that  the  said  sums  shall  be  levied  and  recov- 
ered of  them,  their  heirs,  executors,  and  administrators,  and  of 
all  and  singular  their  lands  and  hereditaments,  goods  and  chat- 
tels. "^  The  recognizance,  however,  w'as  subject  to  a  condition 
making  it  void  if  the  receiver  should  duly  account  for  the  rents 
and  profits  of  the  estate  over  which  he  was  appointed.^  In  the 
Federal  courts  no  fixed  rule  prevails,  the  security  required  from 
a  receiver  being  whatever  the  judge  who  orders  his  appointment 
thinks  proper.* 

When  a  receiver  is  appointed  by  consent,  the  court  may  ap- 
point him  without  requiring  security,  or  upon  his  own  recog- 
nizance only.^ 

The  sureties,  when  individuals,  should  usually  be  residents  of 
the  district ;  but  under  peculiar  circumstances  sureties  residing 
elsewhere  have  been  accepted.^ 

26  25  St.  at  L.,  554.  3  Daniell's  Ch.  Pr.   (2(1.  Am.  ed.) 

26  City    of    Defiance    v.    MeGoni-       1999. 

gale,  C.  C.  A.,  150  Fed.  689.  4  Taylor  v.   Life  Ass'n  of  Am.,  3 

27  Curling  v.   Townshend,  19   Ves.       Fed.  465. 

628.  5Hil)bcrt     v.     Hil)ljert,    ."J    Meriv. 

§319.     1  Daniell's     Ch.     Pr.     (2d  681;    Countess   of    Carlisle    v.    Lord 

Am.     ed.)      1977;      Mead     v.     Lord  Berkley,  Amb.  599;    Ridout  v.  Earl 

Orrery,    3    Atk.    235;    Tomlinson    v.  of   Plymouth.  1   Diekens,  68. 

Ward,  2  Conn.  396.  6  Taylor  v.  Life  Ass'n  of  Am.,  3 

2  Daniell's  Ch.  Pr.    (2d   Am.  ed.)  Fed.  465. 
1977;    Mead  v.  Lord  Orrery,  3  Atk. 
235;    Tomlinson    v.    Ward,    2    Conn. 
396. 


1608  RECEIVERS  [§319 

The  sureties  of  a  receiver  cannot  be  discharged  at  their  own 
re<iuest/  except  under  special  circumstances,  "as  where  under- 
hand practice  is  proved,  and  the  person  secured  shown  to  be 
connected  with  such  practice."*  "For  if  people  voluntarily 
make  themselves  bail  or  sureties  for  another,  they  know  the 
terms,  and  will  be  held  very  hard  to  their  recognizance,  and 
not  discharged  at  their  request  to  have  new  sureties  appointed, 
for  then  there  would  be  no  end  of  it."^  If  "  surety  should 
procure  his  discharge  during  the  continuance  ^i  the  receiver- 
ship, the  receiver  must  enter  into  a  fresh  recognizance.^'* 

At  common  law  a  surety  is  liable  for  the  full  amount  of  the 
penalty  of  the  recognizance,  bond,  or  undertaking  by  which  he 
is  bound. ^^  In  equity,  however,  he  is  only  liable  to  the  full 
amount,  including  interest  as  well  as  principal  which  the  re- 
ceiver is  liable  in  equity  to  pay,^^  unless  that  exceeds  the  amount 
of  the  penalty,  which  fixes  the  extreme  limit  of  his  liability." 
It  has  been  held  in  England  that  a  surety  ^^9llo  has  undertaken 
to  be  responsible  for  whatever  a  receiver  should  receive  or  be- 
come liable  to  pay  as  such  receiver,  is  liable  for  funds  received 
by  the  receiver  before  the  security  was  given. i*  Where  the 
parties  interested  have  been  guilty  of  gross  delay  in  compelling 
the  receiver  to  pass  his  accounts,  the  court  may  excuse  the  surety 
from  the  payment  of  the  whole  or  part  of  the  interest.^^ 

According  to  Daniell,  "When  an  action  is  brought  against  a 
receiver's  surety  upon  the  recognizance,  the  proper  course  for 
him  to  pursue  appears  to  be  to  apply  to  the  court  by  motion  to 
stay  the  proceedings  on  the  recognizance,  offering  at  the  same 
time  to  pay  the  amount  due  from  the  receiver,  so  as  the  same 
does  not  exceed  the  amount  of  the  recognizance,  into  court ;  and 
upon  such  motion,  the  order  will  be  made,  upon  the  surety's 
paying  the  cost  of  the  application,  and  of  the  proceedings  con- 
sequent upon  it.  When  the  receiver's  account  has  not  been 
taken,  the  motion  should  also  pray  a  reference  to  the  master  to 

7  Griffith  v.  Griffith,  2  Ves.  Sen.  H  Dawson  v.  Kaynes,  2  Euss.  466, 
400;   Gordon  v.  Calvert,  2  Sim.  253.'  468. 

8  Hamilton  v.  Brewster,  2  Mol-  12  Dawson  v.  Eaynes,  2  Euss.  466. 
loy  407.  13  Walker   v.   Wild,   1   Madd.  528. 

9  Lord  Harwieke  in  Griffith  v.  14  Smart  v.  Flood,  49  L.  T.  467. 
Griffith,  2  Ves.  Sen.  400.  15  Dawson  v.  Eaynes,  2  Euss.  466. 

lOVaughan    v.   Vaughan,   1    Dick. 
90;   Blois  v.  Betts,  1  Dick.  336. 


§320] 


PROOF  OF  CLAIMS  AGAINST  RECEIVERS 


1609 


see  wliat  is  due  from  the  receiver;  and  it  seems  that  upon  such 
application  tlic  court  will  iiululge  the  surety  by  allowing:  him 
to  pay  the  balance  by  instalments."  ^^  AVhcn  the  surety  has 
been  obliged  to  pay  on  account  of  the  receiver,  he  will  be  entitled 
to  a  lien  for  his  reimbursement  upon  whatever  may  subsequently 
be  due  to  the  receiver  from  the  suit.^"'  The  sureties  may  be 
liable  for  the  malfeasance  of  the  receiver,  although  the  bill  under 
which  the  appointment  was  made  has  been  dismissed  for  want 
of  jurisdiction.^^ 

In  the  absence  of  a  rule  of  couiM,  or  of  a  stipulation  in  tiie 
bond,  the  liability  of  the  surety  should  be  enforced  in  an  inde- 
pendent action. 1^  In  the  absence  of  special  circumstances  no 
action  can  be  brought  until  there  has  been  an  accounting  by 
the  receiver.^o  It  has  been  held  that  an  order  made  upon  notice 
to  the  receiver,  directing  him  to  pay  the  amount  of  a  judgment 
against  him  in  his  official  capacity,  will  not  support  a  judgment 
for  the  same  against  his  sureties,  when  there  has  been  no  ac- 
counting.^^ 

§  320.  Proof  of  claims  against  receivers.  Claims  against  re- 
ceivers are  generally  presented  and  proved  before  masters  in 
chancery,  to  whom  the  matter  has  been  referred.  Where  there 
is  no  doubt  about  the  validity  of  a  claim,  the  receiver  should 
not  seek  to  delay  the  entry  of  a  judgment  in  the  claimant's  favor, 
so  that  the  latter  may  contest  the  validity  of  bonds  with  thp 
standing  of  a  iudgment  creditor.^  The  court  often  limits  the 
time  within  which  proof  must  be  made ;  ^  and  in  cases  of  pre- 
ferred claims,   the   time   within   which   the   preference  must   be 


ISDanieH's  Cli.  Pr.  (2d  Am.  ed.) 
200o,  2006,  citing  Walker  v.  Wild, 
1   Madd.  528. 

17  Glossop  V.  Harrison,  Cooper, 
61 ;   s.  c,  3  V.  &  B.  134. 

18  Baltimore  B.  &  L.  Aas  'n  v.  Al- 
derson,  C.  C.  A.,  99  Fed.  489. 

WKirker  v.  Owings,  C.  C.  A.,  98 
Fed.  499. 

20  Coe  V.  Patterson,  122  App.  Div. 
(N.  Y.)  76.  But  see  Cake  v.  Mohun, 
164  U.  S.  311,  41  L.  ed.  447. 

21  Ibid. 

§  320.  1  Union  Tr.  Co.  v.  Forty- 
Second   St.,  M.  &  St.  N.   Ave.   Ey. 


Co.,    179    Fed.    981;    Williamson    v. 
Callius,   C.  C.   A.,  243   Fed.   83:1. 

2  Pennsylvania  Steel  Co.  v.  New 
York  City  Ry.  Co.,  C.  C.  A.,  199 
Fed.  721.  The  court  denied  a  peti- 
tion presented  after  the  time  for 
filing  claims  had  expired  and  pray- 
ing for  an  order  requiring  the  re- 
ceiver to  retain  money  to  await  the 
determination  of  an  action  at  com- 
mon law  brought  in  a  State  court 
against  the  insolvent  corporation  by 
the  petitioner  who  had  filed  no  claim 
against  the  estate.  Ibid. 


1610 


RECEIVERS 


[§  320 


asserted  ma}-  also  be  limited ;  ^  but,  in  the  absence  of  such  an 
order,  a  party  filing  a  claim  is  not  required  to  give  notice  of  the 
particular  class  to  which  the  same  belongs  or  whether  a  prefer- 
ence is  claimed.*  "Where  no  final  distribution  has  been  made, 
it  is  not  unusual  to  permit  claims  to  be  filed  after  the  prescribed 
time  when  they  share  in  subsequent  dividends,  but  not  in  the 
dividends  previously  paid.5  .^  ..u,.o,iU.H  ,.  utoit 

Claims  may  be  past  due,  immature  or  contingent.^  In  re- 
spect to  the  question  of  provability,  they  may  be  divided  into 
two  classes:  "(1)  Claims  of  which  the  worth  or  amount  can 
be  determined  by  recognized  methods  of  computation  at  ".a' 
time  consistent  wdth  the  expeditious  settlement  of  the  case';' 
(2)  Claims  which  are  so  uncertain  that  their  worth  cannot 
be  so  ascertained.""''  The  first  class  of  claims  can  be  proved 
and  share  in  the  dividends,  whether  they  are  overdue  accounts, 
immature  notes,  or  claims  for  damages  for  breach  of  contract! 
coinciding  with  or  follow^ing  the  receivership.^  It  has  been 
held  that  the  second  class  of  claims  cannot  be  proved,  no  matter 
how  highl}'  meritorious  they  may  be.® 

Upon  the  rejection  of  a  lease  b}'  the  receiver,  tlie  lessor  may 
prove  against  the  estate  his  claim  for  rent  to  the  time  of  re-entry 
and  for  the  difference  between  the  rental  value  at  that  date  and 
the  rent  received  for  the  residue  of  the  term.^"     A  protest  at 


3  Peunsylvania  Steel  Co.  v.  New 
York  City  Ky.  Co.,  198  Fed.  721; 
Pennsylvania  Steel  Co.  v.  New  York 
City  Ey.  Co.,  A.  229  Fed.  120.  See 
Clark  Sparks  &  Sons  Mule  &  Horse 
Co.  V.  Amerieus  Nat.  Bank,  et.  al., 
230  Fed.  738. 

4  Pennsylvania  Steel  Co.  v.  New 
York  City  Ey.  Co.,  187  Fed.  287. 

6  Harrison  v.  Kirk  Humhuds  1904, 
1  Park  N.  Y.  F.  &  W.  E.  E.  140 
Fed.  799;  Ey.  Stein  94  Fed.  124' 
V.  infra  §  387. 

6  Pennsylvania  Steel  Co.  v.  New 
York  City  By.  Co.,  C.  C.  A.,  198 
Fed.  721,  739. 

7  Ibid.  See  Pusey  &  Jones  v. 
Pennsylvania  Paper  Mills,  173  Fed. 
629. 


8  Pennsylvania  Steel  Co.  v.  N.  Y, 
City  Ey.  Co.,  C.  C.  A.,  198  Fed.  721, 
740;  New  York  Security  &  Trust' 
Co.  V.  Lombard  Inv.  Co.,  73  Fed. 
537;  Spader  v.  Mural  Decoration 
Mfg.  Co.,  47  N.  J.  Eq.  18,  28  E.  L! 
378. 

9  Pennsylvania   Steel    Co.   v.    New 
York    City    Ey.   Co.,   C.    C.    A.,    198' 
Fed.  721,  740;   People  v.  Metropoli- 
tan Surety  Co.,  205  N.  Y.  135,  98  N. 
E.  412.     See  $  645,  infra. 

10  William  Filene  's  Sons  Co.  v. 
Weed,  245  U.  S.  597;  Ee  Mullin 
Clothing  Co.  ;C.  a'  A.,  238  Fed. 
58;  Gardiner  v.  W.  g.  Butler  &  Co., 
245  U.  S.  603. 


§320] 


PROOF  OF  CLAIMS  AGAINST  RECEIVERS 


1611 


the  time  of  tlie  rejection  is  not  a  prerequisite  to  such  proof."' 
Where  the  rent  specilied  in  the  lease  was  excessive,  the  claims 
'against  the  receiver  for  i-ent  durin'r  his  occupancy  should  be 
allowed  at  no  more  than  tiie  reasonable  rental  value. ^^  In  a 
street  railroad  lease  this  may  be  the  net  earninj^s.^^  When  the 
receiver  does  not  use  water,^^  or  electric  power,^*  he  is  not  liable 
under  the  covenant  of  the  lease  to  pay  for  these.  Where  a  claim 
was  presented  for  damages  by  the  tenant  to  the  l)uilding  and 
there  was  no  evidence  as  to  how  much  of  any  damage  occurred 
during  the  receivership,  no  preference  of  any  kind  was  allowed. ^^ 
When  the  lease  is  an  assignment  of  leases  to  the  lessor  the  ulti- 
mate lessee  is  the  principal  debtor  and  its  lessor  the  surety. ^^ 
Consequently,  this  lessor  can  onl.v  recover  so  much  as  it  requires 
to  pay  its  own  lessors.^'''  It  has  been  held  that  the  fact  that  the 
lessor  had  controlled  the  lessee  and  applied  its  earnings  to  the 
payment  of  rent  thus  obtaining  a  preference  over  other  claims 
of  the  same  rank  should  not  deprive  it  of  its  right  to  share 
equally  with  the  other  general  creditors  with  respect  to  its  claims 
to  rent  unjjaid.^^  Under  a  railroad  lease  the  lessor  was  allowed 
to  prove  a  claim  for  damages  caused  by  a  breach  of  covenant  to 
pay  franchise  taxes,  so  far  as  the  same  had  been  asse.s.sed,  but 
not  as  regards  future  taxes.^*  Proof  was  allowed  of  claims  for 
rent  up  to  the  date  fixed  by  the  court  for  filing  claims  against 
the  receivej's,  but  not  subsoriuciitlv.^*'    Whore  tlic  receivers  were 


lOalbid. 

11  Atkinson  &  Co.  v.  Aldriek-Clis- 
bec   Co.,   248   Fed.   134. 

12  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  219  Fed.  939.  But  see, 
g.'C,   175  Fed.   812,  »upra   §313. 

13  Lockport  Felt  Co.  v.  United 
Box  Board  &  Paper  Co.,  182  Fed. 
328. 

14  Re  Grignard  Lithographic  Co., 
155  Fed.  699.  Cf.  Pa.  Steel  Co. 
V.  N.  Y.  City  Ry.  Co.,  208  Fed.  777 ; 
Odell  V.  Bedford  Co.,  224  Fed.  996. 

15  Atkin.son  &  Co.  v.  Aldrich-Clis- 
bec   Co.,  248  Fed.   134. 

16  Pennsylvania  Steel  Co.  v.  N, 
Y.  City  Ry.  Co.,  217  Fed.  423. 

17  Ibid. 


18  Ibid. 

19  Pennsylvania  Steel  Co.  v.  New 
York  City  Ry.  Co.,  C.  C.  A.,  198 
Fed.  721. 

20  Ibid.  In  s.  c,  190  Fed.  609, 
held  that  expenditures  made  for  the 
operation,  maintenance  and  im- 
provement of  tlie  railroad,  after  the 
receivership  was  extended  to  the 
lessor,  were  not  chargeable  to  the 
estate  of  the  lessee,  since  it  derived 
no  benefit  from  the  same,  and  that 
its  receiver  was  entitled  in  equity 
to  recover  from  the  receivers  of  the 
lessor,  in  preference  to  the  claims 
of  the  mortgagees  of  the  latter,  so 
much  of  the  former's  funds  as  were 
used  for  siicli  juirposes.     For  a  case 


1612 


BECEIVERS 


[§320 


operating  the  road  experimentally,  to  determine  whether  or  not 
they  should  adopt  the  lease,  the  court  extended  the  time  within 
which  the  claim  might  be  filed  until  after  the  experimental  period 
had  termiuated.2i     Bonds  assumed  as  part  of  consideration  for 
the  lease  were  admitted  to  proof. ^^     i|-  ^^s  held  that  a  claim 
upon  a  guarantee  of  payment  of  the  principal  and  interest  of 
certain  railroad  bonds  can  only  be  proved  for  interest  past  due 
at  the  time  it  is  filed  and  not  for  principal  and  future  interest, 
since,  until  the   termination   of   a   foreclosure,    the   amount   of 
damages  is  too  uncertain  ;23  and  an  agreement  with  the  mort- 
gagor to  pay  such  bonds,  cannot  be  proved  for  the  same  reason. 2* 
Where   the   lessee   had   assumed   a   contract   giving   an   express 
company  the  right  to  deliver  parcels  by  express  over  its  line 
for  a  term  of  twenty  years,  in  return  for  a  percentage  of  the 
gross  receipts,  and  the  express  company  had  assigned  this  and 
other   contracts   to   another   solvent   company   in   consideration 
of  an  agreement  to  pay  to  the  assignor  specified  yearly  rental 
during  the  remainder  of  the  term,  some  of  the  other  contracts 
giving  express  privileges  over  lines  not  owned  or  controlled  by 
the  assignor ;  since  there  was  no  covenant  that  the  control  should 
continue  in  the  latter,  it  was  held  that  the  damages  were  too 
uncertain  for  recovery  or  for  proof.^s     Where  in  a  litigation 


determining  the  apportionment  be- 
tween the  lessor  and  the  lessee,  of 
damages  collected  from  directors, 
see  Pennsylvania  Steel  Co.  v.  N.  Y, 
City  Ey.  Co.,  C.  C.  A.,  198  Fed. 
778;  s.  c,  201  Fed.  418.  This  case 
held,  amongst  other  things,  that  the 
mortgagee  had  no  right  to  these 
proceeds.  Citing  Farmer's  Loan  & 
Tr.  Co.  V.  Waterbury,  C.  C.  A.,  193 
Fed.  44. 

21  Ibid.  Eeceivers  for  the  lessee 
of  a  street  railroad  system  compris- 
ing lines  owned  by  different  corpo- 
rations, are  entitled  to  use  the  in- 
come from  the  entire  system  for 
the  purpose  of  operating  and  main- 
taining the  same  as  a  unit,  not- 
withstanding the  provisions  of  mort- 
gages on  different  parts  of  the  prop- 


erty. Barber  A.  P.  Co.  v.  Forty- 
Second  St.,  M.  &  St.  N.  Ave.  Ry. 
Co.,  C.  C.  A.,  180  Fed.  648. 

22  Pennsylvania  Steel  Co.  v.  N. 
Y.  City  Ry.  Co.,  C.  C.  A.,  216  Fed. 
459. 

23  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  198  Fed.  721;Tredegar 
Co.  V.  Seaboard  Air  Line  Ry.,  C.  C. 
A.,  183  Fed.  289. 

24  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  C.  C.  A.,  198  Fed. 
721. 

26  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  208  Fed.  747,  756, 
distinguishing  S.  C,  C.  C.  A.,  198 
Fed.  721.  For  a  case  where  the 
court  held  the  evidence  insufficient 
to  prove  the  damages  caused  by  the 
operation  of  a  railroad  under  an  il- 


§  320] 


PROOF  OF   CLAIMS   AGAINST   RECEIVERS 


1613 


between  the  lessee  and  tlie  lessor,  both  in  the  hands  of  a  re- 
eeiver,  it  was  decided  that  the  amount  due  the  claimant  for 
materials  furnished  to  the  lessee  should  be  taken  out  of  a  share 
of  a  fund  due  the  lessor  and  paid  to  the  receiver  of  the  lessee; 
this  determination  set  aside  so  much  of  the  final  for  use  for 
the  payment  of  the  claim;  and  the  receiver  of  the  lessee  was 
directed  to  pay  the  full  amount  to  the  claimant.^^  Wht>n  a 
payment  had  been  made  in  settlement  of  a  suit  by  the  receiver, 
of  a  lessee  to  recover  the  balance  of  a  sum  which  the  defendant 
had,  for  a  consideration  received  from  the  lessor  promised  the 
lessor  and  lessee  to  furnish  to  the  latter  for  use  in  making 
permanent  improvements  on  the  property  leased,  the  court 
directed  that  after  deducting  the  costs  of  such  of  these  improve- 
ments as  had  been  made  by  the  lessee  and  its  receiver  the  re- 
mainder should  be  paid  to  the  receivers  of  the  lessor."? 

Although  the  receiver  has  a  reasonable  time  within  which  to 
accept  or  reject  a  contract,  when  he  does  so  his  relation  relates 
back  to  the  beginning  of  the  receivership  and  the  breach  takes 
place  as  of  that  time.^s  A  receiver  appointed  in  a  suit  by  gen- 
eral creditors  should  not  recognize  a  secret  lien  upon  the  prop- 
erty which  is  purely  equitable.''^  A  claim  for  taxes  is  properly 
presented  by  a  petition  praying  for  an  order  directing  paATfient.'® 
A  claim  against  the  insolvent  cannot  be  set  off  against  a  claim 
of  the  receivers  for  services  or  money  received  due  to  the  re- 
ceivership,^^  but  the  holder  of  a  privileged  claim  was  permitted 


legal  contract,  see  Central  Trust 
Co.  V.  Wheeling  &  L.  E.  E.  Co., 
211   Fed.   515. 

26  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  202  Fed.  607,  aff 'd  C. 
C.  A.,  206  Fed.  663.  For  different 
decisions  concerning  the  respective 
claims  of  the  lessors  and  lessees  of 
street  railroads,  when  both  are  in- 
solvent and  in  the  hands  of  receivers, 
•see,  besides  the  authorities  previ- 
ously cited:  Pennsylvania  Steel  Co. 
V.  N.  Y.  City  Ry.  Co.,  196  Fed.  661, 
s.  o.,  C.  C.  A.,  198  Fed.  778,  s.  c, 
C.  C.  A.,  206  Fed.  663,  208  Fed.  747, 
s.  c,  208  Fed.  757,  s.  c,  208  Fed. 
771,  s.  c,  C.  C.  A.,  216  Fed.  458; 


s.  c,  217  Fed.  423,  s.  c,  219  Fed. 
961,  s.  c,  225  Fed.  106. 

27Penn.  Steel  Co.  v.  N.  Y.  City 
Ry.  Co.,  C.  C.  A.,  198  Fed.  778. 

28  Pennsylvania  Steel  Co.  v.  N. 
Y.  City  Ry.  Co.,  C.  C.  A.,  198  Fed. 
721,  744. 

29  H.  K.  Porter  Co.  v.  Boyd,  C.  C. 
A..   171    Fed.   305. 

30  Midland  Guaranty  &  Trust  Co. 
v.  Douglas  County,  C.  C.  A.,  217 
Fed.   358. 

31  Barber  A.  P.  Co.  v.  Forty-Sec- 
ond St.,  M.  &  St.  N.  Ave.  Ry.  Co., 
175  Fed.  154;  Butterworth  v.  Deg- 
non  Contracting  Co.,  C.  C.  A.,  214 
Fed.  172. 


1614 


RECEIVERS 


[§320 


to  set  it  off  against  a  claim  by  the  receiver  for  the  return  of  an 
improper  payment.^^  A  claim  assigned  after  the  appointment 
of  a  receiver  cannot  be  set  off  against  a  receiver's  claim  but 
may  be  proved  against  the  estate  in  his  hands.^^ 

In  general,  no  interest  is  allowed  which  accrues  subsequently 
to  the  appointment  of  the  receiver,^^  but  a  lienor  is  entitled  to 
interest  out  of  the  proceeds  of  the  property  on  which  he  has  a 
lien,25  preferred  claims  are  paid  interest  in  full  before  any  pay- 
ment on  account  of  claims  w^hich  are  not  preferred,^^  and  w^hen 
the  assets  are  sufficient  to  pay  all  claims  Avhat  remains  will  be 
applied  to  the  payment  of  interest.^'' 

Liens  upon  the  insolvent's  property  can  be  enforced  against 
the  receiver  except  to  the  extent  that  he  represents  the  holder 
of  a  prior  lien.^^  The  lienors  may  prove  and  sliare  upon  a  parity 
with  the  general  creditors  in  any  balance  due  them  after  the 
proceeds  of  the  property  covered  by  their  respective  liens  have 
been  credited  upon  their  claims.^^  Except  in  cases  of  bank- 
ruptcy ,*°  the  Federal  court  has  no  power  to  require  the  creditor 
to  surrender  his  lien  as  a  condition  of  sharing  in  the  general 
assets.*^  Otherwise,  claims  are  liquidated  as  of  the  date  o£ 
the  appointment   of   the   receiver  ^^   or   thv>   date   of    the   insol- 


vencv.*^ 


32  People's  Savings  Bank  &  Tr. 
Co.  V.   Eogers,   C.   C.   A.,   177   Fed. 

33  Pennsylvania  Steel  Co.  v.  New 
York  City  Ey.  Co.,  C.  C.  A.,  231 
Fed.  440. 

.  34  Am.  Iron  &  Steel  Mfg.  Co.  v. 
Seaboard  Air  Line  Co.,  2.33  V.  S. 
261,  266;  Thomas  v.  Western  Car 
Co.,   149  Fed.  95,   116. 

36  Huff  V.  Bidwell,  C.  C.  A.,  218 
Fed.  6;  Spring  Coal  Co.  v.  Kerech, 
C.  C.  A.,  239  Fed.  48. 

36  Am.  Iron  &  Steel  Mfg.  Co.  v. 
Seaboard  Air  Line  Co.,  233  IT.  S. 
261,  266;  Penn.  Steel  Co.  v.  N.  Y. 
City  By.  Co.,  C.  C.  A.,  216  Fed.  4.58, 
470. 

87  Am.  Iron  &  Steel  Mfg.  Co.  v. 
Seaboard  Air  Line  Co.,  233  U.  S. 
261,  267. 


38  Chesapeake  &  Ohio  Coal  &  Coke 
Co.  V.  Block,  Sheridan  &  Wilson, 
C.  C.  A.,  224  Fed.  924.  Schmidtman 
v.  Atlanta  Phosphate  &  Oil  Co.,  C. 
C.  A.,  230  Fed.  769. 

39  Chesapeake  &  Ohio  Coal  &  Coke 
Co.  V.  Block,  Wilson  &  Sheridan,  C. 
C.  A.,  224  Fed.  924;  Schmidtman 
V.  Atlanta  Phosphate  &  Oil  Co.,  C. 
C.    A.,    230    Fed.    769. 

*0  See  §  645  supra. 

41  Chesapeake  &  Ohio  Coal  &  Cake 
Co.  v.  Black,  Sheridan  &  Wilson, 
C.  C.  A.,  224  Fed.  924.  But  see 
Kline  v.  Arizona  Mut.  Savings  & 
Loan  Ass'n,  C.  C.  A.,  235  Fed. 
694. 

42  Brown  v.  Massachusetts  Hide 
Corporation,  C.  C.  A.,  218  Fed.  769. 

43  Re  United  Grocery  Co.,  253  Fed. 
267. 


§320] 


PROOF  OF  CLAIMS  AGAIXST  RECEIVERS 


1615 


A  note  given  by  tlie  insolvent  is  prima  facie  valid.**  An 
entry  on  the  books  of  a  eorporation,  kept  under  tiie  direetion  of 
an  ofKeer,  and  not  in  aeeordaiiee  with  usual  bookkeeping,  is 
insufifieient  to  prove  a  elaiiu  on  his  behalf.*^  An  assignee  was 
not  permitted  to  enlarge  an  itemized  claim,  filed  before  the  as- 
signment.*^ When  the  circumstances  of  an  assignment  were 
inequitable  the  court  rejected  proof  of  the  claim.*'  An  assign- 
ment of  a  claim  by  a  receiver  to  other  receivers  who  were  therein 
described  as  receivers  under  the  mortgage,  was  not  recognized 
by  the  court  which  treated  it  as  a  cancellation.*^  One  receiver 
may  prove  a  claim  against  another,*^  where  a  creditor  proves 
two  claims  upon  separate  contracts  which  are  in  substance  the 
same  debt  he  is  entitled  to  a  dividend  on  only  one  of  theni.^'^ 
Where  a  creditor  holds,  as  collateral  mortgage  bonds  issued  l)y 
hia  debtor,  he  is  not  entitled  to  receive  from  the  assets  not  sub- 
♦ject  to  the  mortgage,  dividends  calculated  on  the  basis  of  the 
amount  du«  him  plus  that  of  the  amount  due  upon  such  bouds.^^ 

It  has  been  said  to  be  the  better  practice  for  the  court  to  ti.\ 
a  time  before  the  accounts  are  made  up  for  distribution  and  to 
allow  all  claims  that  are  matured  and  certain  before  such  date.^^ 
Bankruptcy  acts  and  State  statutes  regulating  the  provability 
of  claims  against  insolvent  or  dissolved  corporations  are  only 
entitled  to  consideration  in  so  far  as  the  rules  they  lay  down 
appeal  to  the  conscience  of  the  chancellor.     So,  the  decisions  of 


■•  44  Barber  A.  P.  Co.  v.  Forty-Sec- 
ond Str.,  M.  &  St.  M.  Ave.  Ry.  Co., 
e.  C.  A.,  180  Fed.  648. 

45  Mizell  v.  Elmore  &  Hamilton 
Contracting  Co.,  C.  C.  A.,  219  Fed. 
528;  see  Spencer  v.  Babylon  R.  Co., 
213  Fed.   125. 

46  Pennsylvania  Steel  Co.  v.  New 
York   City   Ry.   Co.,  225   Fed.   96. 

47  Investment  R<'g:istry  v.  Chicago 
&  M.  El.  Ry.  Co.,  204  Fed.  100. 

'  48  Pennsylvania  Steel  Co.  et.  al.  v. 
'New  York   City   Ry.  Co.  et.   al.  225 
Fed.   96. 

49  Pennsylvania  Steel  Co.  v.  N. 
Y.  City  Ry.  Co.,  225  Fed.  96. 

60  Curtis  V.  Walpole  Tire  &  Rub- 
ber Co.,  227   Fed.  698. 


51  Hilner  v.  Diamond  State  Steel 
Co.,    176   Fed.    384. 

52  H.  K.  Porter  Co.  v.  Boyd,  C.  C. 
A.,  171  Fed.  305.  In  N.  Y.  Security 
&  Trust  Co.  V.  Lombard  Inv.  Co., 
7.-^  Fed.  537,  it  was  held  that  all 
claims  could  be  allowed  which  had 
matured  before  an  order  of  distri- 
bution. In  Pennsylvania  Steel  Co. 
V.  N.  Y.  City  Ry.  Co.,  182  Fed.  155, 
held  that  an  application  for  the  pay- 
ment, in  full,  of  certain  claims,  as 
preferred,  should  be  denied  until 
the  final  determination  of  the  status 
of  all  classes  of  claims  which  might 
be  entitled  to  a  preference. 


1616 


RECEIVERS 


[§321 


the  courts  construing  and  applying  such  acts  and  statutes  are 
only  of  weight  when  they  discuss  principles  of  general  applica- 

tion.^3 

§321.  Receiver's  accounts.  A  receiver  should  account  an- 
nually to  the  court  unless  accounts  at  shorter  intervals  are  re- 
quired of  him.^  His  accounts  are  filed  and  passed  in  the  office 
of  the  master  to  whom  matters  pertaining  to  the  receivership 
are  referred.^  A  receiver's  account  should  describe  the  situation 
of  the  estate  at  the  time  when  he  received  it,  and  any  changes 
that  have  since  taken  place.  He  should  then  state  his  receipts 
and  disbursements,  which  should  be  set  forth  in  schedules  as 
specifically  as  possible.^  It  is  the  better  practice  for  him  to 
charge  himself  with  the  inventory  and  to  take  credit  as  it  is 
disposed  of;  to  separate  expenditures  not  on  improvement  ac- 
count from  those  for  operating  expenses ;  *  to  file  vouchers  for 
all  sums  of  money,  in  excess  of  twenty  dollars,  which  he  has 
paid.^  He  should  also  state  such  indebtedness  as  he  has  in- 
curred ;  and,  in  general,  give  as  full  a  description  of  the  estate 
in  his  hands,  and  of  his  acts  concerning  the  same,  as  is  prac- 
ticable.^ When  a  receiver  of  a  railway  system  has  been  extended 
to  apply  to  several  mortgages,  some  of  them  covering  separate 
parts  of  the  property,  the  receiver  need  not  be  required  to  keep 


63  Bear  Eiver  P.  &  B.  Co.  v.  City 
of  Petoskey,  C.  C.  A.,  241  Fed.  53. 

§  321.  1  Potts  V.  Leighton,  15 
Ves.  273;  General  Order,  15  Ves. 
278;  Lowe  v.  Lowe,  1  Tenii.  Ch. 
.515. 

2  Darnell's  Ch.  Pr.  (2d  Am.  ed.) 
1996,    1997. 

SDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1996,  1997.  But  see  Lafayette  Co. 
V.  Neeley,  21  Fed.  738.  He  has  a 
lien  upon  the  estate  for  the  repay- 
ment of  his  intlividual  funds  ad- 
vanced to  execute  orders  of  the 
court.  Union  Tr.  Co.  v.  Illinois 
Midland  Ey.  Co.,  117  U.  S.  434, 
For  a  case  where  the  receiver's 
expenses  on  a  journey  to  Europe 
were  allowed,  see  N.  Ala,  Ry.  Co.  v. 


Hopkins,  C.  C.  A.,  87  Fed.  805.  For 
the  disallowance  of  New  York  hotel 
bills  paid  by  the  receiver  of  a  Kan- 
sas railroad,  see  Braman  v.  Farm- 
ers' L.  &  T.  Co.,  C.  C.  A.,  114  Fed. 
18,  21. 

4  Ibid. ;  Ely  v.  Van  Kaunel  Re- 
volving  Door   Co.,   184   Fed.   459. 

6Remsen  v.  Remsen,  2  J.  Ch.  (N. 
Y.)  495,  501.  See  also  Gutterson 
&  Gould  V.  Lebanon  Iron  &  Steel 
Co.,   151   Fed.   72. 

BDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1996,  1997;  Hooper  v.  Winston,  24 
111.  353;  Hinckley  v.  Railroad  Co.,' 
100  U.  S.  153,  25  L.  ed.  591;  Atty. 
Gen.  V.  N.  A.  L.  I.  Co.,  89  N.  Y.  94, 
107;  Bourne  v.  Maybin^  3  Woods, 
724,   741;    Equity   Rule    79. 


§321] 


receivers'  accounts 


1G17 


a  separate  account  of  the  earnings  and  income  of  such  parts, 
unless  it  is  shown  that  it  is  practicable  to  do  so7 

Receivers  will  be  charged  with  personal  liability  for  such 
indebtedness  incurred  by  tliem  as  might  have  been  prevented 
had  they  kept  proper  accounts,*  and  with  preferential  payments 
made  by  them,  which  should  have  been  ratably  ai)plied  among 
all  the  creditors,®  AVhcn  a  receiver  withholds  from  a  stran^-cr 
to  the  suit,  money  to  which  the  latter  is  entitled,  he  is  liable 
for  interest  upon  the  same  from  the  time  of  its  receipt  until  he 
pays  it  into  court  and  asks  for  directions  as  to  its  distribu- 
tiou.i®  The  burden  rests  upon  him  to  justify  and  prove  his 
accounts,  so  far  as  the^'  are  questioned  ])y  exceptions.^^  An  ex 
parte  order  authorizing  a  payment,  which  is  obtained  from  the 
court  under  a  misapprehension  due  to  fraud  or  negligence  by 
the  receiver,  will  not  protect  him.^^ 

If  a  person  has  not  been  paid  for  services  rendered  to  the 
estate,  but  has  agreed  with  the  receiver  to  be  content  with  what 
the  court  allows  him,  that  fact  should  be  stated  in  the  account 
together  with  a  description  of  the  services  thus  performed." 
Allowances  for  counsel  fees  will  usually  l)e  small,  until  the  final 
accounting  of  the  receiver,  when  the  full  amount  earned  will 
be  ordered  paid.^*  When  the  account  has  been  adjusted,  the 
receiver  should  be  ordered  to  pay  the  balance  into  court,  and  his 
surety  is  liable  for  his  default.  After  such  an  order,  his  lia- 
bility is  not  measui-ed  by  the  funds  or  property  of  the  estate, 
althongii  such  funds  can  be  used  to  comply  with  the  ordei-." 


7  Bankers  Trust  Co.  v.  Missouri 
K.  &  T.  Ry.  Co.,  C.  C.  A.,  251  Fed. 
795. 

8  Braman  v.  Fanners '  L.  &  Tr. 
Co.,  C.  C.  A.,  114  Fed.  18. 

9  Gutterson  &  Gould  v.  Lebanon 
Iron  &  ftteel  Co.,  151  Fed.  72. 

10  Rosenthal  v.  McGraw,  C.  C.  A., 
i:;8  Fed.  721. 

11  Gutterson  &  Gould  v.  Lebanon 
Iron  &  Steel  Co.,  151  Fed.  72. 

12  Gutterson  &  Gould  v.  Lebanon 
Iron  &  Steel  Co.,  151  Fed.  72. 

13  Adams  v.  Woods,  8  Cal.  306. 
Central  Tr.  Co.  v.  Wabash,  St.  L. 
&  P.   Ry.   Co.,  2.3   Fed.   675;    Bound 


V.  S.  Carolina  Ry.  Co.,  4:;  Fed. 
404;  Maxwell  v.  Wilmington  Mfg. 
Co.,  82  Fed.  214;  Central  Tr.  Co. 
V.  Waliash,  St.  L.  &  P.  Ry.  Co., 
2:;  Fed.  675;  Boston  S.  D,  &  Tr. 
Co.  V.  Chamberlain,  C.  C.  A.,  66 
Fed.  847.  Cf.  Sowles  v.  Nat.  Union 
Bank,'  82  Fed.  1.39;  Am.  Loan  & 
Tr.  Co.  V.  S.  Atl.  &  O.  R.  Co.,  8l' 
Fed.  62;  Kernochan  v.  Ballance,  56 
X.  Y.  Snpp.  L32;  s.  C,  26  N.  Y. 
Misc.    435. 

14  Matter  of  Rimi.son,  36  App. 
Div.  562,  564. 

16  Tbid. 


1618  EECEivERS  [§  321a 

Where  before  liis  appointment  a  receiver  had  received  rent 
paid  to  him  in  his  individual  capacity  in  advance,  he  was  obliged 
to  apportion  the  rent,  and  to  account  for  so  much  of  it  as  was 
paid  for  the  time  he  acted  as  receiver  of  the  property,  for  the 
use  of  which  the  rent  was  paid.^® 

It  has  been  said  that  exceptions  should  not  be  taken  after  a 
master's  report  upon  a  receiver's  accounting  has  been  filed,  the 
master  acting  in  the  place  of  the  court  in  a  judicial  and  not  in  a 
ministerial  capacity.^'''  Should  the  receiver  or  any  other  party  to 
the  accounting  feel  aggrieved  at  a  ruling  of  the  master,  he  should 
take  exception  at  the  time,!^  and  subsequently  petition  the  court 
to  refer  the  matter  back  to  the  master  for  correction. ^^  The 
court's  duty  upon  such  a  petition  consists  in  reviewing  the  princi- 
ples and  rules  adopted  and  followed  by  the  master  in  allowing  the 
receiver's  accounts,  rather  than  in  examining  the  items  of  the 
account  iii  detail  or  the  evidence  upon  which  those  items  are 
severall}^  founded;  the  latter  duty  belonging  more  especially  to 
the  province  of  the  master  acting  in  his  judicial  capacity,  anal- 
ogous to  the  province  and  duty  of  a  jury  on  questions  of  fact.^'' 

Where  the  receiver  claimed  in  his  accounts  a  balance  as  due 
him,  and  it  was  found  that  he  was  indebted  to  the  estate,  he 
was  charged  personally  with  the  costs  of  the  accounting.^i 

In  a  proper  case,  the  receiver,  as  well  as  any  other  party  in- 
terested, may  appeal  from  the  final  decree  entered  after  his 
accounting.^2 

§  321a.  Selection  and  compensation  of  receiver's  counsel. 
The  counsel  to  the  receiver  is  in  large  matters  usually  selected 
or  suggested  by  the  court. ^  The  court  has  retused  to  allow 
the  receiver  to  retain  a  relative  who  has  previously  practiced 
elsewhere,  who  had  recently  come  into  the  circuit  apparently 
for  the  sole  purpose  of  acting  as  counsel  for  the  receiver.^     It 

16^6   Allin,   8   Fed.   753.  22  Hinckley  v.  Gilman  C.  &  S.  R, 

IVCowdrey     v.     Railroad     Co.,     1  Co.,   94  U.   S.  467,   24   L.   ed.   166; 

Woods,    331,    334.      But    see    infra,  Hinckley  v.  Railroad  Co.,  100  U.  S. 

§393.  153,   25   L.   ed.   591;    Hovey   v.   Mc- 

18  Ibid.  Donald,  109  U.  S.  150,  27  L.  ed.  888. 

l^Ibid.  §  321a.       1  Guaranty  Trust  Co.  v. 

20Gunn  v.  Ewan,  93   Fed.  80.  Chicago    Trust    Co.,    C.    C.    A.,    185 

21  Cake  V.  Mohun,  164  U.  S.  311,  Fed.  411;  Empire  Tr.  Co.  v.  Aubrey, 

41   L.   ed.  447;   Petersburg   S.   &  I.  C.  C.  A.,  254  Fed.  281. 

Co.  V.  Dellatorre,  C.  C.  A.,  70  Fed.  2  Blair  v.   St.  Louis  T.  &  K.  Ry. 

643.  Co.,  20  Fed.  348. 


§321a 


RECEIVERS    COUNSEL 


16]0 


is  usually  considered  to  be  improper  for  the  receiver  to  retain 
as  counsel  a  law.ver  who  has  previously  acted  for  one  of  the 
parties  in  the  suit.^  But  where  the  receiver  is  appointed  in 
a  suit  by  a  creditor  for  the  stipulation  of  the  plaintiff's  debt 
alone,  he  may  retain  the  claimant's  attorney,*  and  where  the 
main  object  of  the  appointment  is  to  recover  assets  fraudulently 
concealed  there  is  no  objection  to  the  retainer  of  the  plaintiff's 
lawyer  when  he  has  special  knowledge  of  the  facts.^  The 
Court  may  appoint  or  authorize  the  receivers  to  appoint  counsel 
to  represent  different  interests  whose  claims  against  the  funds 
are  inconsistent  I)ut  aflcM-  the  controversy  between  these  in- 
terests has  been  decided,  such  retainer  should  cease.^ 

The  employment  by  the  receiver  of  his  law  partner,  as  coun- 
sel, is  a  transaction  which  is  indelicate,  and  is  not  to  be  com- 
mended.''' AVhen,  however,  it  clearly  appears  that  the  receiver 
is  not  to  share  in  the  compensation,  his  partner  may  be  paid 
for  legal  services  rendered  to  the  estate.^  A  receiver  is  en- 
titled to  credit  for  reasonable  counsel  fees  which  he  has  paid 
or  incurred,^  including  fees  for  defending  him  against  charges 

ployed.  Guaranty  Tr.  Co.  of  New 
York  V.  Chicago  Rys.  Co.,  C.  C.  A., 
185  Fed.  411.  It  lias  been  held  that 
$500  is  proper  compensation  to  an 
attorney  for  filing  the  receivers ' 
bond  and  for  the  preparation,  serv- 
ice,  and    filling  of   a   summons   and 


3  Ryckman  v.  Parkins,  5  Paige 
(N.  Y.)  543;  Blair  v.  St.  Louis,  H. 
&  K.  R.  Co.,  20  Fed.  348. 

4Shainwald  v.  Lewis,  8  Fed.  878. 
See  Davis  v.  Chattanooga  U.  Ry. 
Co.,  65  Fed.  395. 

SMePherson  v.  U.  S.,  C.  C.  A., 
245  Fed.  35. 

6  Penn.  Steel  Co.  v.  N.  Y.  City  Ry. 
Co.,  221  Fed.  440. 

t  Empire  Trust  Co.  v.  Aubrey,  C. 
C.  A.,  254  Fed.  281,  283. 

8  Matter  of  Simpson,  36  App.  Div. 
(N.  Y.)   562,  564. 

9  Stuart  V.  Boulware,  133  U.  S. 
78,  33  L.  ed.  568;  Burroughs  v. 
Toxaway  Co.,  C.  C.  A.,  185  Fed.  435. 
Where  the  judge  wrote  the  receivers 
stating  that  certain  persons  therein 
named  were  their  only  standing 
counsel  and  that  others  should  be 
employed  only  after  consultation 
with  the  court,  it  was  held  that  that 
was  a  sufficient  discharge  of  any 
that  might  have  been  previously  em- 


complaint  to  compel  the  payment  of 
$10,000.  People,  etc.,  v.  Przestrzel- 
ski,  (Gerard,  J.,  N.  Y.  Sup.  Ct.,  Sp. 
Tm.)  N.  Y.  L.  J.  May  24,  1912. 
Where  the  attorneys  for  an  insol- 
vent bank  consented  to  allowances  to 
attorneys  for  a  receiver,  in  order  to 
enable  the  bank  to  resume  business, 
it  was  held  that  the  consent  was 
given  under  duress  and  that  the 
receiver  might  appeal  from  the  or- 
der making  the  allowance.  People 
V.  Brooklyn  Bank,  140  App.  Div. 
(N.  Y.)  750.  Specific  items  for 
counsel  fees  were  considered  in  Drey 
V.  Watson,  C.  C.  A.,  138  Fed.  792, 
796.     See  also  infra,  §  422. 


1620 


RECEIVERS 


[§322 


of  breach  of  trust  whicli  are  not  sustained,^"  but  not  for  serv- 
ices in  trying  to  collect  a  cause  of  action  to  which  the  receiver 
was  clearlA^  not  entitled,^^  nor,  it  has  been  said,  for  services 
in  opposing  a  motion  to  vacate  his  appointment ;  ^^  unless  when 
lie  is  also  trustee  under  the  mortgage,  when  such  counsel  fees 
may  be  allowed.^^  He  cannot  receive  credit  for  counsel  fees 
he  contracted  to  pay  for  instituting  suites  which  were  unneces- 
sary and  not  warranted  under  the  circumstances.^* 

Allowances  for  counsel  fees  are  the  property  of  the  receiver 
and  not  of  his  counsel ;  ^^  but  payment  directly  to  the  attorney 
is  often  directed.^^  When  a  counsel  of  a  receiver  rendered 
services  in  different  States,  his  compensation  Avas  adjusted  at 
the  amount  usually  paid  lawyers  in  the  respective  States  where 
they  were  performed. ^''^ 

The  corporation  has  the  power  to  retain  an  attorney  to  oppose 
the  application  for  the  receivership. ^^  But  his  claim  for  com- 
pensation for  service  in  such  opposition, ^^  or  for  other  ^^  services 
rendered  to  the  corporation  during  the  receivership  are  not 
a  part  of  the  expenses  of  the  receivership,  but  are  subordinate 
thereto,  and  have  no  preference  over  the  claims  of  general  cred- 
itors in  the  absence  of  a  statute.^^ 

§322.  Compensation  of  receivers.  The  compensation  of  a 
receiver  is  usually  fixed  in  the  first  instance  by  the  master,^ 
with  whose  determination  the  court  will  not  ordinarilv  interfere.^ 


10  Mo.  &  K.  I.  By.  Co.  v.  Edson, 
C.  C.  A.,  224  Fed.  79. 

11  Richmond  v.  Irons,  121  U.  S. 
27,  7  Sup.  Ct.  788,  30  L.  ed.  864. 

12  Burroughs  v.  Toxaway  Co.,  182 
Fed.  129;  modified  S.  C,  C.  C.  A., 
185  Fed.  435. 

13  Burroughs  v,  Toxaway  Co.,  C. 
C.  A.,  185  Fed.  435. 

14  Burroughs  v.  Toxaway  Co.,  182 
Fed.   129. 

16  Stuart  V.  Boulware,  133  U.  S. 
78,  81,  33  L.  ed.  568. 

16  So  ordered  by  Lacombe,  J.,  in 
Bawker  v.  Haight  &  Freese  Co.,  S. 
D.,  N.  Y.,  Dec.  1906,  and  subse- 
quently, in  this  case.  The  author  was 
counsel  for  the  receivers.  In  Bur- 
roughs V.  Toxaway  Co.,  C.  C.  A.,  4th 
Ct.,    185   Fed.   435,   441,   the    allow- 


ance was  made  to  the  receiver  with 
a  direction  that  it  be  paid  to  his  at- 
torneys, the  amount  which  each  at- 
torney should  receive  being  specified. 

17  Bibber- White  Co.  v.  White 
River  Valley  El.  R.  Co.,  175  Fed. 
470. 

18  Barker  v.  Southern  Bldg.  & 
Loan  Ass'n,  181  Fed.  636;  Russell 
V.  Shippen  Bros.  Lumber  Co.,  229 
Fed.  46L 

19  Barker  v.  Southern  Bldg.  & 
Loan  Ass  'n,  181  Fed.  636. 

20  Atkinson  &  Co.,  Inc.,  v.  Al- 
drich-Clisbee    Co.,    248    Fed.    134. 

21  Supra,  §  305a. 

§  322.  1  Cowdrey  v.  Railroad  Co., 
1  Woods,  331,  341;  Central  Trust 
Co.  V.  Wabash,  St.  L.  &  P.  Ry.  Co., 
32  Fed.  187. 


322] 


COMPENSATION  OF  RECEIVERS 


1621 


The  compensation  will  rarely,  it"  ever,  be  ineerascd  npon  ap- 
peal.3  ^vhei-c  itic  eonrt  has  fixed  a  receiver's  compensation  in 
advance,  it  lias  the  power  to  award  him  an  additional  snm  for 
extraordinary  labors.*  In  cases  of  moderate  amonnt  a  commis- 
sion of  tive  per  cent,  npon  the  receipts  and  disbursements  is  not 
unns\ial.5  Commissions  were,  however,  not  allowed  upon  se- 
cui'ities  which  came  into  the  hands  of  the  receiver,  but  were  not 
collected  by  hiiii.^  Where  the  amounts  received  and  disbursed 
are  large,  it  is  customary  to  pay  the  receiver  a  salary  or  a  lump 
sum  jxraduated  according  to  the  amount  of  his  time  employed, 
the  valne  of  the  property,  the  ditficulty  of  his  task,  and  the  suc- 
cess of  his  administration.'  It  lias  been  said  that  the  peculiar 
tlnties  and  responsibdities  and  accountability  of  a  receiver  of 
a  railroad  entitle  him  to  a  larger  amount  than  would  be  de- 
manded by  the  head  officer  of  a  railroad,  of  the  same  si/e  and 
business.* 

Receivers  arc  entitled  to  a  fair  and  reasonable  compensation 


2  Cowilrey  v.  Eailroad  Co.,  1 
Woods,  3.31,  341;  Central  Trust  Co. 
V.  Wabash,  St.  L.  &  P.  Ey.  Co.  32 
Fed.  187. 

3  Hinckley  v.  Eailroad  Co.,  100 
U.  S.  153,  25  L.  ed.  591;  Stuart  v. 
Boulware,  133  U.  S.  78,  33  L.  ed. 
568;  Braman  v.  Farmers'  L.  &  Tr. 
Co.,  C.  C.  A.,  114  Fed.   18. 

4  Farmers'  L.  &  Tr.  Co.  v.  Cen- 
tral R.  E.  of  Iowa,  8  Fed.  60. 

5  Cowdrey  v.  Eailroad  Co.,  1 
Woods,  331,  346;  Day  v.  Croft,  2 
Beav.  488;  Girard  Tr.  Co.  v.  Mc- 
Kinley-Lanning  L.  &  Tr.  Co.,  143 
Fed.  355;  Calhoun  v.  Dragon  Motor 
Co.,  166  Fed.  980.  $12,000  each  was 
held  to  be  ample  compensation  for 
two  receivers  who  had  been  occupied 
six  months  in  the  administration  of 
trust  funds  amounting  to  $2,000,000. 
People  V.  Brooklyn  Bank,  140  App. 
Div.  (N.  Y.)  750.  Ten  per  cent, 
upon  the  receipts  from  a  business 
conducted  by  him,  and  five  per  cent, 
upon  his  receipts  from  other  sources 
and  his  disbiu'sements  were  allowed 
in  Cake   v.  Mohun,   164  U.    S.  311, 

Fed.  Prac.  Vol.  11—32 


41  L.  ed.  447.  Where  a  receiver 
collected  earnings  of  the  property, 
to  a  part  of  which  a  third  person 
was  entitled  under  a  contract  with 
the  defendant,  it  was  held  that 
neither  he  nor  the  insolvent  estate 
could  charge  for  the  services  ren- 
dered in  collecting  the  part  pay- 
able to  the  stranger.  Rosenthal  v. 
McGraw,  C.  C.  A.,  138  Fed.  721. 

6  Girard    Tr.    Co.    v.    McKinley- 
Lanning  L.  &  Tr.  Co.,  143  Fed.  355. 

7  Cowdrey  v.  Eailroad  Co.,  1 
Woods,  331,  346;  Farmers'  L.  & 
Tr.  Co.  V.  Central  E.  E.  of  Iowa, 
8  Fed.  60;  Central  Trust  Co.  v. 
Wabash,  St.  L.  &  P.  Ey.  Co.,  32 
Fed.  187.  See  Burroughs  v.  Toxa- 
way  Co.,  C.  C.  A.,  185  Fed.  435. 
Where  the  majority  of  the  creditors 
had  given  their  assent  to  the  ap- 
pointment of  receivers  of  a  partner- 
ship, upon  a  bill  alleging  insolvency 
and  that  the  completion  of  a  con- 
tract would  be  for  the  benefit  of 
creditors;  it  was  held  that  the  affi- 
davit of  the  attorney  for  a  single 
judgment    creditor    stating    his    be- 


1622 


RECEIVERS 


[§322 


for  tlie  services  rendered,  to  be  fixed  by  the  court  appointing 
them  after  considering  the  nature  of  the  matters  administereci, 
the  amount  involved,  the  complications  attending  it,  the  amount 
of  the  bond,  the  time,  labor  and  skill  needed  and  expended  and 
the  promptness  in  accounting.^  Keceivers  are  bound  ta  use  the 
utmost  care  not  to  contract  bills  which  they  ma}'  be  unable  to 
pay  from  the  property  in  their  hands,  and  the  existence  jf  such 
bills  throws  on  the  receivers  a  great  burden  to  establish  a  right 
to  compensation  for  services.  Therefore  when  they  couJuct 
business  for  a  corporation,  knowing  that  it  is  at  a  los.s,  they 
cannot  be  allowed  compensation,  where  the  funds  in  theii-  IuukIs 

A.,  66  Fed.  847,  where,  for  winding 
up  the  estate  after  the  railroad  was 
sold,  only  $1,750,  was  allowed  for 
seven  months;  $4,500,  Easton  v.  H. 
&  T.  C.  Ey.  Co.,  40  Fed.  189;  and 
$2,500,  Central  Tr.  Co.  v.  Cincin- 
natti,  J.  &  N.  Ry.  Co.,  58  Fed.  500, 
512.  In  street-railroad  cases  muclr 
less  is  allowed.  Montgomery  v. 
Petersbury  S.  &  I.  Co.,  C.  C.  A.,  70 
Fed.  746.  $15,000  was  held  to  be 
sufficient  for  twenty-nine  months  of 
service  in  the  administration  of  oil 
properties  in  four  different  States, 
which  sold  for  $271,000,  when  the 
receiver  had  also  been  allowed  $15 
a  day  for  his  expenses  during  125 
days  spent  in  different  cities;  and 
an  allowance  of  $24,022.84  was  re- 
duced to  that  amount.  In  the  same 
case,  it  was  held  that  an  allowance 
to  an  assignee,  under  an  insolvent 
assignment,  of  five  per  cent,  upon 
the  money  handled  by  him,  was  suf- 
ficient. Drey  v.  Watson,  C.  C.  A., 
138  Fed.  792.  For  a  case  where  the 
Federal  court  refused  to  allow  its 
receiver  to  set  off  the  amount  of 
compensation  awarded  hian  by  a 
State  court,  for  compensation  for 
services  as  a  receiver  of  the  same 
property  in  another  suit,  against  the 
sum  he  was  directed  to  pay  by  a  de- 
cree of  the  Federal  court,  see  Hinck- 
ley V.  Railroad  Co.,  100  IT.  S.  153, 
25    L.   ed.    591;    In   re   Hinckley,    3 


lief  that  the  firm  was  solvent  and 
that  the  receivership  was  obtained 
for  the  benefit  of  the  partners,  in 
order  to  hinder  and  delay  creditors, 
was  insuflfieient  to  justify  the  vaca- 
tion of  the  receivership  or  to  au- 
thorize its  creditors  to  issue  an  ex- 
ecution against  property  in  the 
hands  of  the  receivers.  Patterson 
V.  Patterson,  184  Fed.  547. 

8  Bradley,  J.,  in  Cowdrey  v.  Rail- 
road Co.,  1  Woods,  331,  347.  Ap- 
proved by  Brewer,  J.,  in  Central 
Trust  Co.  V.  Wabash,  St.  L.  &  P. 
Ry.  Co.,  32  Fed.  187,  188.  See  also 
Williams  v.  Morgan,  111  U.  S.  684, 
28  L.  ed.  559.  Receivers  of  rail- 
roads have  been  frequently  allowed 
as  much  as  $10^000  a  year.  Hinck- 
ley V.  Railroad  Co.,  100  U.  S.  153, 
23  L.  ed.  591;  Cowdrey  v.  Railroad 
Co.,  1  Woods,  331,  347.  But  see 
Farmers'  L.  &  Tr.  Co.  v.  Central  R. 
R.  of  Iowa,  8  Fed.  60.  In  one  re- 
ported case  two  receivers  were  each 
allowed  $70,000  for  three  and  a  half 
years'  work.  Central  Trust  Co.  v. 
Wabash,  St.  L.  &  P.  Ry.  Co.,  32  Fed. 
187.  In  a  few  eases  not  reported 
larger  fees  have  been  allowed.  In 
other  cases  annual  salaries  of 
$6,000,  Boston  S.  D.  &  Tr.  Co.  v. 
Am.  R.  Tel.  Co.,  67  Fed.  165,  168; 
Braman   v.   Farmers'  L.   &  Tr.   Co., 

C.  C.    A.,    114   Fed.    18;    Boston    S. 

D.  &  Tr.  Co.  V.  Chamberlain,  C.  C. 


^322] 


COMPENSATION    OF    RECEIVERS 


162:3 


are  insufficient  even  to  discharge  all  of  the  debts  tliey  have  in- 
curred.^'' 

The  receiver's  right  to  compensation  passes  to  liis  personal 
representatives  upon  his  deatli,^^  and  ordinarily  has  precedence 
of  the  claims  of  holders  of  receiver's  certificates.^^  Whether  a 
receiver  can  assign  his  commissions  before  they  are  earned  is 
doubtful. 1'  An  agreement  by  a  receiver  that  he  would  not  en- 
force any  claim  for  his  commissions,  "to  the  detriment  of"  the 
claim  of  an  intervenoi-,  was  held  not  to  entitle  the  latter  to  be 
paid  out  of  commissions  allowed  the  receiver  from  funds  that 
woukl  otherwise  have  been  applied  in  paj-ment  of  preferred 
claims.** 

^lisconduct  of  the  receiver,  such  as  the  unnecessary  prolonga- 
tion of  the  receivershi])  ^^  or  his  failure  to  keep  proper  books 
of  account,*^  or  his  inisr('{)resentation  or  suppression  of  facts 
in  his  reports  to  the  court,*'  oi-  his  conduct  of  the  business  at  a 
loss,  without  authority  of  the  court  although  with  consent  of 
all  the  creditors,*^  may  be  a  reason  for  denying  any  compensa- 
tion. It  has  been  held  by  some  authorities  that  where  the  aj)- 
pointment  of  a  receiver  is  set  aside  his  compensation  can  be 
charged  only  against  the  party  who  moved  for  the  appointment 
and  should  not  be  paid  out  of  the  funds  of  the  estate.**  liut 
the  rule  ill  the  Federal  courts  is  otherwise  ^^  unless  the  appoint- 
ment was  improvidently  applied  for.^* 


Fed.  556.  For  a  case  of  estoppel 
against  objecting  to  the  amount  of 
compensation,  see  I)illin<jham  v. 
:Moran,  C.  C.  A.,  81  Fed.  759. 

9Eames  v.  H.  B.  Claflin  Co.,  C. 
C.  A.,  239  Fed.  6.S1. 

10  Atkinson  &  Co.,  Inc.  v.  Al- 
drich-Clisbee   Co.,  248  Fed.   134. 

11  Cake  V.  Mohun,  164  U.  S.  311, 
41  L.  ed.  447. 

12  Petersburg  S.  &  I.  Co.  v.  Dele- 
torre,  C.  C.  A.,  70  Fed.  643. 

13  Bloonifield  v.  Roy,  C.  C.  A., 
120   Fed.   502,  503. 

14  Bloonifield  v.  Roy,  C.  C.  A., 
120  Fed.  502. 

16  Newell  V.  International  Tr.  Co., 
C.  C.  A.,  169  Fed.  497. 

16  Braman  v.  Farmers '  L.  &  Tr. 
Co.,  C.  C.  A.,  114  Fed.  18. 


17  Haines  v.  Buckej'e  Wheel  Co., 
C.   C.  A.,  224  Fed.   289,  295. 

18  Atkinson  &  Co.  v.  Aldrich-Clis- 
lioe  Co.,  248  Fed.  134,  see  Haines  v. 
Buckeye  Wheel  Co.,  C.  C.  A.,  224 
Fed.  289,  294. 

19  Verplank  v.  Mercantile  Ins.  Co., 
2  Paia;e,  N.  Y.  438;  People  v.  Jones, 
33  Mich.  303;  Weston  v.  Watts,  45 
Hun.  219;  Pittsfield  Nat.  Bank  v. 
Bayne,  140  N.  Y.  321,  35  N.  E. 
630;  French  v.  Gifford,  31  Iowa 
428;  Re  Wentworth  Lunch  Co.,  C. 
C.  A.,  191  Fed.  821;  See  Re  Locov, 
C.  C.  A.,  142  Fed.  960;  Infra, 
S  324. 

20  Palmer  v.  Texas,  212  U.  S.  118. 

21  Re  Independent  Mach.  &  Toof 
Corp.,  C.  C.  A.,  251  Fed.  484. 


1624 


RECEIVERS 


[§323 


Where  a  receiver,  with  the  consent  of  the  court,  authorized 
certain  creditors  to  advance  the  necessary  expenses  to  collect 
certain  claims  of  the  estate,  under  an  agreement  that  they  should 
have  a  preference  for  the  payment  of  their  expenses  and  their 
claims  out  of  the  proceeds;  it  was  held  that  he  should  receive 
no  compensation  from  that  fund,  except  from  the  surplus  after 
they  had  been  paid  in  full.^'^ 

Where  the  effect  of  an  order  granted,  in  a  suit  by  a  receiver 
directing  him  to  paj'  certain  costs,  is  to  leave  no  funds  where- 
with to  pay  commissions,  the  order  will  be  reversed  and  the 
application  to  pass  his  account  will  be  remitted  with  direction 
to  fix  his  compensation  and  to  fix  an  allowance  for  counsel  fees, 
including  services  of  the  respondent  upon  the  appeal  from  said 
order,  but  excluding  services  rendered  upon  the  receiver's  ap- 
peal, taken  without  leave  of  the  court,  and  in  connection  with 
motions  for  leave  to  appeal  to  the  Appellate  Division.^^ 

An  order  allowing  compensation  to  a  receiver  should  be  made 
only  after  notice  and  a  hearing,  at  which  the  parties  interested 
have  an  opportunity  of  contesting  the  same.^*  The  order  grant- 
ing a  receiver  compensation  may  be  set  aside  and  the  receiver 
be  directed  to  return  the  money  if  facts  subsequently  presented 
to  the  court  show  that  it  was  erroneously  made.^^  An  order 
granting  a  receiver's  compensation  is  appealable  and  may  be 
reversed  for  want  of  proper  notice  of  the  application  for  the 


same. 


26 


§  323.  Removal  of  receivers.     A  receiver  may  be  removed 
for  misconduct  in  office,^  or  because  his  original   ap])ointment 


22  Southern  Ry.  Co.  v.  Townsend, 
C.  C.  A.,  161  Fed.  310;  Cornell  v. 
Nichols  &  Laiigworthy  Mach.  Co., 
189  Fed.  .556;  aff'd.,  C.  C.  A.,  201 
Fed.  320.  See  MeEwen  v.  Harriman 
Land  Co.,  C.  C.  A.,  138  Fed.  797, 
808,  71  C.  C.  A.,  163 ;  infra,  §  393. 

23  Walter  E.  Smith  v.  Alexander 
Adlerman,  105  Misc.  223. 

24Ruggles  V.  Patton,  C.  C.  A., 
143  Fed.  312;  Merchants'  Bank  v. 
Crysler,  67  Fed.  388;  s.  c,  14  C.  C. 
A.  449. 

26  Haines  v.  Buckeye  Wheel  Co., 
C.  C.  A.,  224  Fed.  289,  298. 

26Euggles    V.    Patton,    C.    C.    A., 


143  Fed.  312;  Merchants'  Bank  v. 
Crysler,  67  Fed.  388;  .s.  c,  14  C. 
C.   A.   449. 

§  323.  1  Handy  v.  Cleveland  & 
Marietta  R.  Co.,  31  Fed.  689;  At- 
kins V.  Wabash,  St.  L.  &  P.  Ry.  Co., 
29  Fed.  161;  Clarke  v.  Central  R. 
R.  &  B.  Co.,  66  Fed.  16.  Instances 
of  such  misconduct  as  will  be  a 
cause  for  the  removal  of  a  receiver 
unlawful     discrimination     in 


are: 


charges  lietween  different  shippers 
upon  a  railroad;  Handy  v.  Cleve- 
land &  M.  R.  Co.,  31  Fed.  689;  At- 
kins V.  Wabash,  St.  L.  &  P.  Ry.  Co., 
29  Fed.  161 ;  but  see  Central  Tr.  Co. 


§323] 


REMOVAL   OF   RECEIVERS 


1625 


was  obtained  by  collusion  or  fraud,^  or  was  improper  on  account 
of  his  interest  in  the  subject  of  the  receivership  or  connection 
with  the  parties  in  interest,^  or  because  subsequent  developments 
make  his  continuance  in  the  ofifice  likely  to  be  detrimental  to 
the  estate*  Unreasonable  delay  in  tiie  administration  of  tlie 
estate  is  a  cause  for  the  removal  of  a  receiver.^  The  fact  that 
the  estate  has  a  claim  against  him  is  a  proper  cause  for  his  re- 
moval.^ A  receiver  will  not  be  removed  or  discharged  at  his 
own  request  except  for  good  cause  shown,  nor  ordinarily  lor  a 
reason  which  he  knew  or  had  ground  to  anticipate  wiien  he 
accepted  the  receivership.''  Ordinarily,  a  receiver  can  only  be 
removed  by  the  court  which  appointed  liim,^  upon  an  ai)plication 
made  in  the  suit  in  which  his  appointment  was  made.^    A  Federal 


V.  Ohio  Cent.  R.  Co.,  23  Fed.  306; 
the  purchase  of  supplies  for  the 
purpose  of  the  receivership  from  a 
firm  or  corporation  in  whicli  he  is 
largely  interested,  Atkins  v.  Wa- 
bash, St.  L.  &.  P.  Ry.  Co.,  29  Fed. 
161.  In  the  Eastern  District  of 
Georgia,  the  court  refused  to  re- 
move a  receiver,  who  had  continued 
in  good  faith  reports  of  the  condi- 
tion of  the  property  similar  to  those 
issued  by  the  corporation  before  his 
appointment,  who  had  aided  in  a 
scheme  for  reorganizing  the  prop- 
erty, who  had  in  good  faith  allowed 
a  special  rate  to  a  shipper,  and 
whose  agents  had  been  guilty  of 
fraud.  Clarke  v.  Central  R.  R.  &  B. 
Co.,  66  Fed.  16.  But  in  the  Second 
Circuit  a  receiver  very  properly  is 
not  allowed  to  become  a  member 
of  an  organization  committee.  Cha- 
ble  V.  Nicaragua,  C.  C.  A.,  59  Fed. 
846. 

2  0'Mahoney  v.  Belmont,  62  N. 
Y.  133;  s.  C,  37  N.  Y.  Super.  Ct. 
223. 

3  Atkins  v.  Wabash,  St.  L.  &  P. 
Ry.  Co.,  29  Fed.  161. 

4  Meier  v.  Kansas  Pac.  R.  Co.,  5 
Dillon,  476;  where  two  receivers 
were  unable  to  act  in  harmony. 
But    see   Conner   v.   Belden,   8   Daly 


(N.  Y.  C.  P.)  257;  Land  Title  & 
Trust  Co.  v.  Asphalt  Co.,  120  Fed. 
996. 

&Ee  Angel,  131  Mich.  345,  91  N. 
W.  611. 

6  Land  Title  &  Tr.  Co.  v.  Asphalt 
Co.,  120  Fed.  996. 

7  Richardson  v.  Ward,  6  Madd. 
266;  He  Lytle,  3  Paige  Ch.  (N.  Y.) 
251;  Smith  v.  Vaughan,  Ridg,  temp. 
Hardw.  251;  Beach  on  Receivers, 
§  782.  Thus  the  court  refused  to 
remove,  at  his  own  request,  a  re- 
ceiver upon  the  sole  ground  that' 
the  duties  of  his  office  interfere  with 
his  private  business.  Beers  v.  Chel- 
sea Bank,  4  Edw.  Ch.  (N.  Y.)  277. 
But  see  Purdy  v.  Raplye  (N.  Y. 
CIi.  1835)  ;  Edwards  on  Receivers, 
661.  A  receiver  may  be  removed 
at  his  own  request  when  by  reason 
of  lilindness  he  Tias  become  physi- 
cally incapable  of  performing  the 
duties  of  his  receivership.  Rich- 
ardson V.  Ward,  6  Madd.  266. 

8  Young  V.  Montgomery  &  E.  R. 
Co.,  2  Woods,  606,  618;  Alabama 
&  C.  R.  Co.  V.  Jones,  7  N.  B.  R. 
145,  169;  Beach  on  Receivers, 
§§  777,  778. 

9  Davis  V.  Michelbacher  (S.  C. 
Wis.),  31  N.  W.  R.  168;  Beach  on 
Receivers,    «§  777,    778. 


1626  RECEIVERS  [§  324 

court  may,  however,  after  the  removal  of  a  suit,  remove  a  re- 
ceiver therein  appointed  by  a  State  court.^"  And  it  was  held 
that  when  a  Circuit  Court  of  the  United  States  had  appointed 
a  receiver  of  a  line  of  railroad  running  through  another  circuit, 
as  well  as  through  that  wherein  the  appointment  is  made,  his 
authority  in  the  other  circuit  was  recognized  merely  by  judicial 
comity,  and  he  might  be  removed  from  all  control  over  property 
therein  by  the  Federal  court  there  held,  upon  a  bill  there  filed." 
A  delay  of  ten  months  after  knowledge  of  the  facts  upon  which 
the  motion  is  founded,  in  moving  for  the  discharge  of  a  receiv- 
ership and  the  removal  of  a  receiver,  has  been  held  a  sufficient 
reason  for  denying  the  application.^^  Upon  an  application  for 
,Jhe:  removal  af  a  receiver  of  a  mine,  the  court  ordered  th^t  ^tl^e 
agent  of  the  applicant  be  permitted  to  inspect  the  mine.^^  When 
a  receiver  is  removed,  the  court  may  appoint  another  in  his  place. 
The  successor  to  a  receiver  can  usually  enforce,  at  least  in  equity, 
contracts  made  with  his  predecessor  in  his  official  capacity  and 
is  usually  responsible  in  his  official  capacity  ^*  for  liabilities  in- 
currred  by  his  predecessor  in  the  same  manner  as  if  he  were  a 
corporation  sole.^^  It  has  been  said  that  a  receiver  cannot  appeal 
from  an  order  discharging  or  removing  him.^^ 

§  324.  Discharge  of  a  receiver.  The  discharge  of  a  receiver 
is  a  termination  of  the  receivership,  if  no  successor  to  him  is 
then  appointed.^     It  will  be  ordered  when  the  court  is  satisfied 

10  Texas  &  St.  L.  Ry.  Co.  v.  Eust,  15  McNulta  v.  Lochridge,  141  U. 
17  Fed.  275.  S.  327,  35  L.  ed.  796. 

11  Atkins  V.  Wabash,  St.  L.  &  P.  16  Bosworth  v.  St.  Louis  Terminal 
Ey.  Co.,  29  Fed.  161;  Farmers'  L.  E.  R.  Ass'n,  174  U.  S.  182,  189,  19 
&  Tr.  Co.  V.  No.  Pac.  E.  Co.,  69  Sup.  Ct.  625,  43  L.  ed.  941,  modify- 
Fed.  871.  But  see  Central  Trust  ing  and  affirming  S.  C,  26  C.  C.  A., 
Co.  V.  Wabash,  St.  L.  &  P.  Ey.  Co.,  279;  80  Fed.  969,  53  U.  S.  App. 
29  Fed.  618;  Muller  v.  Dows,  94  TJ.  302;  Be  Premier  Cycle  Mfg.  Co.,  70 
S.  444;  Young  v.  Montgomery  &  Conn.  473,  39  Atl.  800;  Young  v. 
E.  E,  Co.,  2  Woods,  606,  618;  Ala-  Irish,  104  Minn.  367,  116  N.  W. 
bama  &  C.  E.  Co.  v.  Jones,  7  Nat.  656;  State  v.  Superior  Court,  36 
B.  Eeg.  145,  169.  Wash.  81,  78  Pac.  202;  High  on  Ee- 

12  Brown  v.  Lake  Superior  Iron  ceivers  (4th  ed.)  §825.  But  see 
Co.,  134  U.  S.  530,  33  L.  ed.  1021;  Conner  v.  Behlen,  8  Daly  (N,  Y. 
see  supra,  §389.  C    J.)    257;    Wilson   v.    Barney,    5 

13Henszey     v.     Langdon-Henszey  Hun     (N.     Y.),    257;     Connolly    v. 

Coal  Min.  Co.,  80  Fed.  178.  Kretz,  78  N.  Y.   620. 

14  Thompson  v.  Phoenix  Ins.   Co.,  §  324.     1  Beach       on       Eeceivers, 

136  U.  S.  287,  34  L.  ed.  408.  §791.       See     High     on     Eeceivers, 


§'324]' 


DISCHARGE  OF  RECEIVERS 


1627 


either  that  no  occasion  for  a  receivership  existed  when  the  ap- 
pointment was  made,2  or  that  in  the  course  of  subsequent  events 
the  necessity  for  the  receivership  lias  ceased.^  Ordinarily,  a 
receiver  can  be  discharged  only  by  the  court  that  appoini.'d 
him.*  After  the  removal  of  a  case  from  a  State  to  a  Federal 
court,  the  Federal  court  may  discharge  a  receiver  aiM>0!iit.'(l  by 
the  iVrmer.^ 

Any  person  injured  by  the  appointment  of  a  receiver  can 
move  for  his  discharge  although  not  a  party  to  the  suit  in  which 
he  was  appointed.^  The  motion  should  be  made  on  notice  to 
all  parties  interested^  A  motion  for  the  discharge  of  a  receiver 
may  be  denied  on  account  of  the  laches  of  the  moving  party.' 
Ordinarily  a  receiver  of  the  estate  of  an  infant  should  not  be 
discharged  until  a  year  after  the  infant's  majority,  unless  the 
ward  after  majority  consents  to  his  discharge.^  A  receiver 
will  not  be  discharged,  as  of  course,  at  the  motion  of  the  party 
who  procured  his  appointment,  if  other  parties  who  have  ac- 
quired an  interest  in  the  receivership  object. i**  The  entry  of 
a  final  decree  which  does  not  provide  for  the  continuance  of  a 


§§832-848a.  "Where  a  decree  pro- 
vided that  when  the  receiver  made  a 
report,  if  no  exceptions  were  filed 
thereto,  he  should  be  discharged, 
but  no  report  was  filed,  it  was  held 
that  the  court  was  not  ousted  of 
jurisdiction.  Bray  v.  Staples,  C.  C. 
A.,  180  Fed.  321. 

2  Lavender  v.  Lavender,  Irish  E. 
9  Eq.  59.S;  Furlong  v.  Edwards,  3 
Md.  99;  Sage  v.  Memphis  &  L.  R. 
Co.,  18  Fed.  571;  s.  C,  125  U.  S. 
361,  31  L.  ed.  694. 

3  Davis  V.  Duke  of  Marlborough, 
2  Swanst.  108,  168;  Bainbridge  v. 
Blair,  3  Beav.  421;  Tolman  v. 
Ubero  Plantation  Co.,  142  Fed.  270. 

4  Young  V.  Montgomery  &  E.  K. 
Co.,  2  Woods,  606;  Beach  on  Re- 
ceivers,   §  791. 

6  Texas  &  St.  L.  Ry.  Co.  v.  Rust, 
li  Fed.  275;  Mahoney  Mining  Co. 
V.  Bennett,  4  Shaw,  287.  As  to  the 
disposition  of  the  money  in  the 
hands  of  a  receiver  thus  discharged, 
see  Mack  v.  Jones,  31  Fed.  189,  196. 


6  Thomas    v.    Brigstocke,   4    Russ. 
64;  Grehfell  v.  Dean  of  Windsor,  t" 
Beav.  544;   Milwaukee  &  M.  R.  Co. 
V.   Soutter,  2  Wall.   510,   17   L.   ed.. 
9U0. 

7  Davis  V.  Duke  of  Marlborough, 
2  Swanst.  108,  168;  Bainbrigge  v. 
Blair,  3  Beav.  421,  423. 

8  Allen  v.  Dallas  &  W.  R.  Co.,  3 
Woods,  316,  331;  National  M.  B. 
Ass'n  V.  Mariposa  Co.,  60  Barb.  (N. 
Y.)  423;  Hazard  v.  Credit  Mobilier 
of  America,  38  Fed.  195;  Brown  v. 
Lake  Superior  Iron  Co.,  134  IT.  S. 
530,   33    L.   ed.    1021. 

9  Matter  of  Van  Home,  7  Paige 
C-h.  (N.  Y.)  346;  Wildridge  v.  Mc- 
Kane,  2  Molloy,  545.  See  also  Bain- 
brigge V.  Blair,  2  Beav.  421. 

10  Bainbrigge  v.  Blair,  3  Beav. 
421 ;  IVople  v.  Globe  M.  L.  Ins.  Co., 
57  How.  Pr.  (N.  Y.)  481;  Fay  v, 
Erie  &  K.  R.  R.  Bank,  Harring. 
(Mich.)  194.  See,  however,  Davia 
v.  Duke  of  Marlborough,  2  Swanst. 


1628 


RECEIVERS 


[§324 


receivership  supersedes  the  appointment  of  a  receiver."  An 
order  appointing  receivers  in  a  foreclosure  suit  persons  who 
had  been  previously  appointed  under  a  creditor's  bill  does  not 
vacate  the  latter  appointment.^^  Where  a  receivership  had 
been  extended  so  as  to  cover  the  property  of  a  corporation  not 
a  party  to  the  bill,  an  order  directing  the  receiver  to  return  its 
property  to  such  corporation  was  held  to  be  equivalent  to  a- 
revocation  of  the  receivership  as  to  that  company. ^^  ^  receiver 
may  be  discharged  from  the  control  of  real  estate,  and  the  rents 
and  profits  which  he  has  collected  be  continued  in  his  control 
until  the  termination  of  the  litigation.^*  It  has  been  held  that 
the  discharge  of  a  receiver  by  a  decree  cannot  be  set  aside  upon 
a  motion  entered  after  the  term  at  which  it  was  made,^^  unless 
the  decree  reserved  the  jurisdiction  of  the  court  for  the  enforce- 
ment of  claims.  Then  the  court  may  appoint  a  special  receiver, 
against  whom  pending  actions  may  be  revived,  with  authority 
to  retake  possession  of  sufficient  property  to  satisfy  any  judg- 
ments that  may  be  recovered. ^^ 

The  discharge  of  a  receiver  terminates  his  liability  for  acts 
done  in  his  official  capacity, i'  at  least  to  those  who  had  due 
notice  of  the  proceedings;  and  until  the  same  is  set  aside, 
he  cannot  be  sued  as  receiver.^^  After  a  receiver's  discharge 
damages  to  the  estate  resulting  from  his  mismanagement  can- 
not be  recovered  from  the  sureties  upon  an  mjunction  bond 
concurrent  with  his  appointment,^^  but  his  discharge  does  not 
relieve  the  sureties  upon  a  forthcoming  bond,  executed  to  him 
and  his  successors,  although  no  other  receiver  is  appointed 
and  the  other  property  is  returned  to  his  corporation,  w^hich 

16  Southern  By.  Co.  v.  Townsend, 
C.  C.  A.,  161  Fed.  310. 

17  Davis  V.  Duncan,  19  Fed.  447; 
White  V.  Kepkuk  &  D.  M.  Ey.  Co., 
52  Iowa,  97;  Western  N.  Y.  &  P. 
E.  Co.  V.  Penn  Eefining  Co.,  C.  ®. 
A.,   137   Fed.   343. 

18  Archanibeau  v.  Piatt,  173  Mass. 
249;  Lilienthal  v.  Betz,  185  N.  Y. 
153,  159,  7  Ann.  Cas.  41. 

19  Lehman  v.  McQuown,  31  Fed. 
138. 


108,  168;  Whiteside  v.  Prendergast, 
2  Barb.   Ch.    (N.  Y.)    471. 

llDaniell's  Ch.  Pr,  (2d  Am.  ed.) 
1765. 

12  Pennsylvania  Steel  Co.  v.  New 
York  City  Ey.  Co.,  C.  C.  A.,  225 
Fed.  7U. 

13  Hook  V.  Bosworth,  64  Fed.  443. 

14  Jones  v.  Smith,  40  Fed.  314. 

15  Davis  v.  Duncan,  19  Fed.  477. 
Contra,  Taylor  v.  Easton,  C.  C.  A., 
180  Fed.  363,  where,  upon  the  dis- 
covery of  assets  a  new  receiver  was 
appointed  at  a  term  long  subse- 
quent. 


§324] 


DISCHARGE  OF  RECEIVERS 


1620 


can  then  sue  upon  the  bond.^**  Where  a  decree  discharged 
a  receiver  upon  condition  that  he  should  file  a  release  from 
the  person  to  whom  the  property  was  given  by  the  decree,  it 
was  held  that  his  omission  to  tile  the  release  did  not  make 
him  liable  to  strangers  for  former  injuries  by  his  employees.^^ 
Upon  the  discharge  of  a  receiver  and  the  return  of  the  property 
tathe  original  owner,  who  did  not  oppose  the  receiver's  appoint- 
ment, the  owner  is  liable  for  all  contracts  by  the  receiver  entered 
into  by  the  authority  of  the  court,  and  also  for  the  damages 
caused  by  the  negligence  or  other  torts  of  the  receiver's  agents 
which  are  incidental  to  the  ordinary  management  of  the  prop- 
erty.^^  An  order  discharging  a  receiver  and  directing  him  to 
deliver  the  property-  to  a  person  from  whom  he  had  taken  it 
was  held  not  to  be  an  adjudication  that  the  latter  was  entitled 
to  the  same.2^ 

Where  the  court  acted  within  its  jurisdiction,  and  a  re- 
ceiver is  discharged  because  his  appointment  was  not  justi- 
fied, the  expenses  of  his  administration,  including  his  compen- 
sation, are  charged  against  the  funds  in  his  hands;  and  the 
party  who  moved  for  his  appointment  is  not  obliged  to  pay 
them  2*  unless  the  proceedings  were  instituted  improvidently 
without  reasonable  cause  ^^  or  tlic  prosecution  thereof  has  been 


20  Am.  Surety  Co.  v.  Campbell  & 
Zell  Co.,  C.  C.  A.,  138  Fed.  531. 

21  Davis  V.  Duncan,   18  Fed.  477. 

22  Texas  &  Pac.  Ry.  Co.  v.  Huron, 
164  U.  S.  636,  640,  41  L.  ed.  580, 
582;  Texas  &  Pac.  Ry.  Co.  v.  John- 
son, 151  U.  S.  81,  89,  38  L.  ed.  81, 
84.      Cf.    supra,    §  313. 

23  Marshall  v.  Otto,  59  Fed.  249, 
255. 

24  Palmer  v.  Texas,  212  U.  S.  118, 
132;  Elk  Fork  O.  &  G.  Co.  v.  Jen- 
nings, 90  Fed.  767;  New  Birming- 
ham I.  &  L.  Co.  V.  Blevins  (Tex. 
Civ.  App.),  34  S.  W.  R.  828;  Clark 
V.  Brown,  C  C.  A.,  119  Fed.  130; 
Ephraim  v.  Pac.  Bank,  129  Cal.  589, 
592. 

26  Industrial  &  Min.  G.  Co.  v.  El. 
Supply  Co.,  58  Fed.  732,  734 ;  Ogden 
City  V.  Bear  L.  &  W.  &  Imp.  Co., 
55  Fed.   385;   Matter  of   Lacov,   C. 


a  A.,  142  Fed.  960;  Beach  v. 
Macon  Grocery  Co.,  C.  C.  A.,  125 
Fed.  513;  60  C.  C.  A.,  557,  559; 
Burroughs  v.  Toxaway  Co.,  182  Fed. 
129;  S.  C,  C.  C.  A.,  185  Fed.  435; 
Chicago  Title  &  Tr.  Co.  v.  Newman, 
C.  C.  A.,  187  Fed.  573;  He  Metals 
Extraction  &:  Refining  Co.,  C.  C.  A., 
193  Fed.  372.  He  Wentworth  Lunch 
Co.,  C.  C.  A.,  191  Fed.  821.  Huff 
v.  Bidwell,  C.  C.  A.,  218  Fed.  6; 
Fryer  v.  Weakley,  C.  C.  A.,  261  Fed. 
509;   Hawes  v.  First  Nat.  Bank,  C. 

C.  A.,  229  Fed.  51.  See  Richmond 
v.  Irons,  121  U.  S.  27;  Farmers' 
Nat.  Bank  v.  Backus,  77  N.  W.  R. 
142;  Northern  Ala.  Ry.  Co.  v.  Hop- 
kins, 31  C.  C.  A.  94;  s.  c,  87  Fed. 
505;  Gallagher  v.  Gingrich,  105 
Iowa,   237;    Cutter  v.  Pollock,  4  N. 

D.  205;  Cutter  v.  Pollock,  7  N.  D. 
631,  634. 


1630 


RECEIVERS 


[§  324 


unreas'onably  delayed ;  ^^  and  he  is  not  liable  for  interest  upon 
the  funds  in  the  receiver's  hands.'^'''  It  was  so  held  even  when 
the  appointment  was  made  without  jurisdiction.^*  Where  the 
proceedings  were  instituted  improvidently  without  reasonable 
cause,^^  or  induced  by  fraud,^°  or  there  has  been  unreasonable 
delay  in  the  prosecution  of  the  suit,^^  the  expense  of  the  admin- 
istration including  the  receiver 's  compensation  should  be  charged 
against  the  party  upon  whose  application  the  appointment  was 
made.  But  it  has  been  held  by  a  divided  court  that  in  such  a 
case  in  bankruptcy  the  receiver  has  a  lien  upon  assets  to  recover 
his  disbursements.^^  Where  the  proceeds  of  the  estate  are  suffi- 
cient to  pay  the  expenses  of  the  receivership,  they  cannot  be 
charged  against  the  party  at  whose  application  the  appointment 
was  made,  unless  he  was  guilty  of  some  misconduct,^^  or  he  has 
received  some  special  benefit  from  the  receivership.^*  Where 
a  receivership  in  a  creditor's  suit  has  been  beneficial  to  the 
mortgaged  property,  the  receiver's  compensation  may  be  paid 
therefrom  before  the  mortgage  debt.^^  Otherwise  this  should 
not  be  done.^^  The  failure  of  a  trustee  to  exercise  a  power  of 
sale  vested  in  him,  and  the  institution  of  a  foreclosure  suit 
instead,  is  no  reason  for  charging  him  with  the  expense  of  the 
receivership.^''^  The  fact  that  land  was  sold  at  foreclosure  for 
enough  to  pay  the  amount  of  the  mortgage  and  costs  does  not 
prevent  the  payment  to  the  receivers  of  compensation  out  of 
other  property  covered  by  the  mortgage.'* 


26  Unreasonable  delay  in  the 
prosecution  of  the  action  may  be 
ground  for  charging  the  expense  of 
the  receivership  to  the  complainant, 
when    the    appointment    of    the    re- 

;eeivers   is   set   aside,   Harrington   v. 
Union  OU  Co.,  144  Fed.  235. 

27  Clark  V.  Brown,  C.  C.  A.,  119 
Fed.  130. 

28  Palmer  v.  Texas,  212  U.  S.  118. 
But  see  Ephraim  v.  Pacific  Bank, 
129  Cal.  589,  592;  Fryer  v.  Weak- 
ley, C.  G.  A.,  261  Fed.  509. 

29  Fryer  v.  Weakley,  C.  C.  A.,  261 
Fed.  509. 

30  Ephraim  v.  Pae.  Bank,  129 
Cal.  589,  592. 


31  Harrington  v.  Union  Oil  Co., 
144  Fed.   235. 

32  Be  Independent  Mach.  &  Tool 
Corp.,  C.  C.  A.,  251  Fed.  484. 

33  Atlantic  Tr.  Co.  v.  Chapman, 
208  U.  S.  360,  52  L.  ed.  528. 

34  Farmers '  Nat.  Bank  v.  Backus, 
74  Minn.   264. 

35  Provident  Life  &  Tr.  Co.  v. 
Camden  &  T.  Ry.  Co.,  C.  C.  A.,  177 
Fed.   854.      See   supra,    §  305a. 

36  Spencer  v.  Taylor  Creek  Ditch 
Co.,  C.  C.  A.,  194  Fed.  635. 

37  Atlantic  Tr.  Co.  v.  Chapman, 
208  U.  S.  360,  52  L.  ed.  528.    , . 

38  Strain  v.  Palmer,  C.  C.  A,,  159 
Fed.  628. 


§  325] 


APPEALS  FROM  ORDERS  APPOINTINC  RECEIVERS 


16:n 


§325.  Appeals  from  orders  appointing  receivers.     "Whore 
upon  a  lieaiiiig  in  e(iiiity  in  a  district  court,  or  bj'  a  .judge  there- 
of in  vacation,  an  injunction  shall  be  granted,  continued,  r^-' 
fused,  or  dissolved  by  an  interlocutory  order  or  decree,  or  an 
application   to  dissolve  an   injunction   shall    be   refused,   or   an 
interlocutory  order  or  decree  shall  be  made  appointing  a  re- 
ceiver, an  appeal  may  be  taken  from  such  interlocutory  order 
or  decree  granting,  continuing,  refusing,  dissolving,  or  refusing' 
to  dissolve,  an  injunction,  or  appointing  a  receiver,  to  the  cir- 
cuit court  of  appeals,  notwithstanding  an  appeal  in  such  cas6 
might,  upon  final  decree  under  the  statutes  regulating  the  same, 
be  taken  directly  to  the  Supreme  Court :  Provided  Tliat   the 
appeal  must  be  taken  within  thirty  days  from  the  entry  of  such 
order  or  decree,  and  it  shall  take  precedence  in  the  appellate' 
court ;  and  the  proceedings  in  other  respects  in  the  court  below 
shall  not  be  stayed  unless  otherwise  ordered  by  that  court,  or 
the  appellate  court,  or  a  judge  thereof,  during  the  pendency  of 
such  appeal:     Provided,  however.  That  the  court  below  may, 
in  its  discretion,  require  as  a  condition  of  the  appeal  an  addi- 
tional   bond."i      Although    the    statute    authorizes    an    appeal 
from  an  order,  continuing,  refusing  or  dissolving,  or  refusing 
an  application  to  dissolve,  an  injunction,  there  is  no  such  pro- 
vision  concerning   orders  appointing  receivers.     The   right  to 
appeal    from   an   order   denying   an   application   to   appoint    a 
receiver  or  to  dissolve  a  receivership,  or  from  an  order  con- 
tinuing or  dissolving  a  receivership,  is  not  expressly  granted. 
Where  an  appeal  had  been  taken  from  an  order  appointing  a 
receiver  an  ai)peal  from  an  order  denying  a  motion  to  vacate 
such  an  order  was  dismissed.^ 

It  has  been  held:  that  an  ex  parte  order  appointing  a  re- 


§325.  IJud.  Code,  §129,  36  St. 
at  L.  1087.  Where  before  the  Act 
authorizing  appeals  from  orders  ap- 
pointing receivers,  an  order  ap- 
pointed a  receiver  and  contained  no 
other  injunction  than  the  usual 
mandate  that  the  defendant,  its  of- 
ficers, agents  and  employes,  deliver 
to  him  the  property  in  their  hands; 
it  was  held  that  it  was  not  appeal- 
able.    Bissell  C.  S.  Co.  v.  Goshen  S. 


Co.,  C.  C.  A.,  72  Fed.  545;  Marden 
V.  Campbell  Printing-Press  &  Mfg. 
("0.,  C.  C.  A.,  67  Fed.  809.  An  or- 
der vacating  the  appointment  of  a 
receiver  and  staying  all  proceedings 
in  the  suit,  was  held  to  be  an  in- 
junction order  and  appealable.  Bak- 
er V.  Walter  Baker  &  Co.,  C.  C.  A., 
8:5  Fed.  :5. 

2  Guardian    Trust    Co.    v.    Shcdd, 
C.  C.  A.,  240  Fed.  689. 


1632 


.  RECEIVERS 


[§325 


ceiver  is  appealable ;  ^  and  that  an  order  noiuinally  appoint- 
ing a  "conditional  receiver,"  which  gave  the  appointee  no 
greater  powers  than  those  of  a  special  master,  namely,  to 
keep  and  require  accounts,  to  require  bonds  in  such  amount 
as  he  might  determine  and  to  report  to  the  court  in  case  of 
misconduct  by  the  defendants,  is  not  appealable.*  The  court 
said :  ' '  Interlocutory  orders,  which  may  be  reviewed  on  ap- 
peal under  and  within  the  purview  of  the  statute  just  quoted, 
are  orders  in  the  nature  of  'executions  before  judgment,'  and 
in  effect  either  ousting  parties  from  the  possession  of  property 
or  injuriously  controlling  the  management  and  disposition  of 
property."^  A  stipulation  not  to  object  to  the  continuance  of 
a  receivership  is  a  waiver  of  the  right  to  appeal  from  the  ap- 
pointment.^ When  the  court  has  jurisdiction  to  appoint  a  re- 
ceiver its  discretion  in  making  the  appointment  will  rarely  be 
reviewed,'''  unless  so  improper  and  improvident,  as  to  constitute 
an  abuse  of  power.^  But  where  the  court  in  making  the  ap- 
pointment departed  from  the  rules  of  jurisi:)rudence  in  equity 
its  order  will  be  reviewed.^  The  refusal  of  the  court  to  appoint 
a  receiver  will  rarely  be  reviewed  on  an  appeal.^" 

The  other  decisions  which  apply  to  these  appeals  are  discussed 
in  the  previous  section  upon  appeals  from  injunction  orders.^^ 
Upon  an  appeal  from  an  order  appointing  an  ancillary  receiver, 
the  propriety  of  the  decree  in  the  principal  suit  cannot  be  ques- 
tioned.*^ 


3  Joseph  Dry  Goods  Co.  v.  Heclit, 
C.  C.  A.,  120  Fed.  760.  See  Mann 
V.  Gaddie,  C.  C.  A.,  158  Fed.  42,  47. 
Contra,  Root  v.  Mills,  C.  C.  A.,  168 
Fed.  688.  It  has  been  said:  "This 
statute  will  afford  defendants  relief, 
where  receivers  are  improperly  ap- 
pointed, whether  with  or  without 
notice."  Mann  v.  Gaddie,  C.  C.  A., 
158  Fed.  42,  47. 

4  Gulf  Eefining  Co.  v.  Vincent 
Oil  Co.,  C.  C.  A.,  185  Fed.  87. 

6  Gulf  Refining  Co.  v.  Vincent  Oil 
Co.,  C.  C.  A.,  185  Fed.  87,  89,  per 
Pardee,  J. 

6  Haight  &  Freese  Co.  v.  Weiss, 
C.  C.  A.,  156  Fed.  328. 


7  First  Nat.  Bank  v.  Detroit  Trust 
Co.,  C.  C.  A.,  248  Fed.  16;  Ward  t. 
Central  Trust  Co.,  C.  C.  A.,  252 
Fed.  127. 

8  First  Nat.  Bank  v.  Detroit  Trust 
Co.,  C.  C.  A.,  248  Fed.  17. 

9  Folk  V.  U.  S.,  C.  C.  A.,  233  Fed. 
177. 

10  Greenberg  v.  Lesanis,  C.  C.  A., 
203  Fed.  678. 

11  Supra,  §  300. 

18  McGraw  v.  Mott,  C.  C.  A.,  179 
Fed.  646,  where  it  was  said  that  the 
jurisdiction  of  the  former  court 
could  not  be  questioned. 


CHAPTER  XX. 

THE  WRIT   OF   NE   EXEAT   REPUBLIC  A. 

§  326.  Definition  of  the  writ  of  ne  exeat  republica,  and  when 
it  will  issue.  Tlie  writ  of  ite  exeat  republica  is  a  writ  which 
issues  from  a  Federal  court  of  e(iuity  or  bankruptcy  to  restrain 
a  defendant  to  a  suit  therein  from  departing  from  the  United 
States  without  the  leave  of  the  coui't.^  Jii  England  it  was  called 
ne  exeat  regno,  and  was  considered  a  writ  of  liigh  j^i-erogative. 
It  was  originally  applicable  to  purposes  of  state  only,  but  after- 
wards extended  to  private  transact ions.^  In  the  United  States 
the  writ  has  hitherto  l)een  issued  only  at  the  request  of  a  private 
party.  The  Judicial  Code  provides  that  "writs  of  ne  exeat 
may  be  granted  by  any  justice  of  the  Supreme  Court,  in  cases 
where  they  migiit  be  granted  by  tlie  Supreme  Court ;  and  by 
any  district  judge,  in  cases  where  they  might  be  granted  by 
the  district  court  of  whicli  he  is  a  judge.  But  no  wi-it  of  ne  exeat 
shall  be  granted  unless  a  suit  in  equity  is  commenced,  and  sat- 
isfactory proof  is  made  to  the  court  or  judge  granting  the  same 
that  the  defendant  designs  (luickly  to  depart  from  the  United 
States."^  It  is  unsettled  whether  the  wi-it  can  now  issue  from 
a  Federal  court  held  in  a  State  which  has  aboli.shed  imprisonment 
for  debt.*  It  has  been  held  that  the  intention  of  the  defendant 
to  depart  fi-om  the  judicial  district,  is  not  enough  to  autliorize 
the  issue  of  the  writ,^  except  in  case  of  bankrui)tcy.^    The  claim 

§  .'i26.     1  Re   Berkowitz,   173   Fed.  6  I^ocwenstein     v.     Bicmbaiim,     8 

3012.  W.  N.  C.    (Pa.)    im. 

2  Jackson  v.  Petrie,  10  Yes.  164;  &  Be  Berkowitz,  17.3  Fed.  1012, 
Beanies  on  Ne  Exeat,  1-21.  wliere  upon  the  petition  of  creditors, 

3  .Jud.  Code,  §  261,  36  St.  at  L.  accompanied  by  a  certificate  of  the 
1087,  re-enacting  U.  S.  R.  S.,  §  717.  referee,  the  writ  was  issued  against 

4C/.  U.  S.  R.  S.,   §990;   Mallory  a  bankrupt,  who  was  about  to  leave 

Mfg.  Co.  V.  Fox,  20  Fed.  409;   and  the  district  and  did  not  appear  upon 

infra,  §471.     See  also  24  Am.  Law  the  adjourned  day  of  his  examina- 

Rev.  535.  tion. 

1633 


1634 


WRIT   OP   NE   EXEAT 


[§  327 


of  the  party  applying  for  the  writ  must  be  one  enforceable  by 
a  suit  in  a  court  of  equity '''  or  bankruptcy,^  except  where  a 
decree  for  permanent  alimony  has  been  entered  and  no  appeal 
therefrom  is  pending,  in  which  case  the  English  rule  was  that  the 
writ  might  issue  to  compel  obedience  to  the  same.*  The  claim 
must  be  for  the  payment  of  a  certain  fixed  sum  of  money  ^^  or  for 
an  accounting.il  A  claim  for  unliquidated  damages  is  insuffi- 
cient.^^  Thus,  the  writ  cannot  issue  under  a  bill  to  set  aside  a  bill 
of  sale  of  a  vessel,  for  a  return  of  the  vessel  or  her  value,  and  for 
an  account  of  her  earnings.i^  The  debt  must  be  already  due."  A 
debt  which  is  contingent, ^^  or  certain  but  future,i^  is  insufficient. 
The  motives  for  the  defendant's  departure,  no  matter  how  in- 
nocent they  may  be, — as,  for  example,  that  he  is  about  to  sail 
upon  a  ship  of  which  he  is  captain, i'''  will  not  prevent  the  issue 
of  the  writ.i^ 

§327.  Against  whom  the  writ  will  issue.  The  writ  was 
originally  confined  to  subjects  of  the  King  of  England. ^  It  has 
been  extended,  however,  so  as  to  apply  to  foreigners  as  well  as 
subjects  of  the  country  from  the  courts  of  which  the  writ  is^ 
sued ;  ^  and  where  the  court  has  jurisdiction,  the  writ  may  be 
issued  at  the  suit  of  one  foreigner  against  another.^  It  seems 
that  the  writ  may  be  issued  against  a  married  woman  in  a  suit 


7Pearne  v.  Lisle,  Amb.  75;  Sey- 
mour V.  Hazard,  1  J.  Ch.  (N.  Y.)  1. 

8  Be  Berkowitz,  173  Fed.  1012. 

9  Pearne  v.  Lisle,  Amb.  75 ;  Read 
V.  Bead,  1  Ch.  Cas.  115;  ex  parte 
Whitemore,  1  Dick.  143;  Shaftoe  v. 
Shaftoe,  7  Ves.  171;  Street  v. 
Street,  1  Tr.  &  R.  322 ;  Daniell  's  Ch. 
Pr.  (2d  Am.  ed.)  1926,  1927. 

10  Graham  v.  Stucken,  4  Blatelif. 
50;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1931. 

11  Gooding  v.  Eeid,  Murdock  & 
Co.,   C.   C.  A.,  177  Fed.   684. 

18  Graham  v.  Stucken,  4  Blatchf. 
50. 

13  Ibid. 

"  14  Whitehouse  v.  Partridge,  3 
Swanst.  365,  377;  Seymour  v.  Haz- 
ard, 1  J.  Ch.   (N.  Y.)  1. 


15  Anon.,  1  Atk.  521. 

16  Whitehouse  v.  Partridge,  3 
Swanst.  365,  377;  Seymour  v.  Haz- 
ard, 1  J.  Ch.   (N.  Y)   1. 

17  Dick  V.  Swinton,  1  V.  &  B.  371. 

18  Stewart  v.  Graham,  19  Ves. 
313;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1934,  1935. 

§327.  1  Daniell's  Ch.  Pr.  (2d 
Am.  ed.)  1933;  Beames  on  re  ex- 
eat, 1-20. 

2  Flack  V.  Holm,  1  J.  &  W.  405; 
Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1933,  1934. 

3  De  Carriere  v.  De  Calonne,  4 
Ves.  577;  Mitchell  v.  Bunch,  2 
Paige  (N.  Y.)  606,  22  Am.  Dec. 
669. 


§327  J  AGAINST    WHOM    THK    WRIT    ISSUES  1635 

aft'ecting  her  separate  estate.*     The  writ  will  not  issue  ajrainst 
a  defendant  who  is  under  arrest  or  held  to  bail  in  an  action  at 
law.*     The  Constitution  provides  that  Senators  and  Represen- 
tatives .shall,  in  all  eases,  except  treason,  felony,  and  breaeh  of 
the  peaee,  be  privileged  from  arrest  during  their  attendance  at 
the  session  of  their  respective  Houses,  and  in  going  to  and  re- 
turning from  the  sarne.^    And  the  Revised  Statutes,  that  when- 
ever any  w^rit  or  process  is  sued  out  or  prosecuted  by  any  person 
in  any  court  of  the  United  States,  or  of  a  State,  or  by  any  judge 
or  justice,  whereby  the  person  of  any  public  minister  of  any 
foreign  prince  or  state,  authorized  and  received  as  such  by  the 
President,   or   any   domestic   or   domestic   servant   of  any   such 
minister,  is  arrested  or  imprisoned,  or  his  goods  or  chattels  are 
distrained,  seized,   or  attached,   such  w^rit  or  process  shall   be 
deemed  void."''     Whenever  any  writ  or  process  is  sued  out  in 
violation  of  this  statute,   every  person  by  whom  the  same   is 
obtained    or   prosecuted,   whether   as   party    or   as   attorney   or 
solicitor,  and  every  officer  concerned  in  executing  it,  is  deemed 
a  violator  of  the  laws  of  nations  and  a  disturber  of  the  public 
repose,  and  is  liable  to  imprisonment  for  not  more  than  three 
years,  and  a  fine  at  the  discretion  of  the  court.^    These  regula- 
tions do  not  apply  to  any  ease  where  the  person  against  whom 
the  process  is  issued  is  a  citizen  or  inhabitant   of  the  United 
States  in  the  service  of  a  public  minister,  and  the  process  is 
founded  upon  a  debt  contracted  before  he  entered  ui)on  such 
service;  nor  to  any  case  where  the  person  against   whom  the 
process  issued  is  a  domestic  servant  of  a  public  minister,  unless 
the  name  of  tlie  servant  has,  before  the  issuing  thereof,   been 
registered  in  the  Department  of  State,  and  transmitted  by  the 
Secretary  of  State  to  the  marshal  of  the  District  of  Columl)ia. 
who  is  required,  upon  the  receipt  thereof,  to  post  the  same  in 
some  public  place  in  his  office.^    All  persons  may  have  access  to 

4  Moore  v.  Hudson,  Mad.  &  Geld.  ^  V.    S.    B.    S.,    §  4063.      See    ex 

218;   Moore  v.  Meynell,  1  Dick.  30;  r-"'"^''  Cabrera,   1   Wash.  C.   0.  232; 

Danieirs  Ch.  Pr.  (2d  Am.  ed.)  191.  U.  S.   v.   Benner,   1  Baldw.  234;   U. 

6  Raynes  v.  Wyse,  2  Meriv.   472;  S.    v.    Lafontaine,    4    Cranch,    C.    C. 

Daniell's    Gh.    Pr.     (2d    Am.    ed.)  173. 

1930,  1931.  sr.  S.  R.  S.,  §4064. 

6  Const,  art.  T,  §  6.  9  V.  S.  R.  S.,  §  4065. 


1636 


WRIT    OP    Nj:   EXEAT 


[§328 


the  list  of  names  so  posted  in  the  marshal's  office,  and  may  take 
copies  without  a  fee.^** 

§  328.  Practice  in  obtaining  the  writ  of  ne  exeat.  The  ap- 
plication for  a  writ  of  ne  exeat  repuhlica  may  be  made  ex  parte, 
even  after  the  defendant  has  appeared. ^  The  reason  for  allow- 
ing this  is,  that  notice  might  frustrate  the  object  of  the  motion 
by  giving  the  part^'  an  opportunity  of  removing  himself  out  of 
the  jurisdiction. 2  It  has  been  held  in  England  that  the  writ 
cannot  be  obtained  until  a  bill  lias  been  filed.^  It  is  the  safer 
practice  to  ask  for  the  writ  in  the  bill,  when  it  is  needed  pend- 
ing the  suit.*  But  it  has  been  held  that  the  writ  may  be 
granted  at  or  after  the  decree,  although  the  bill  contains  no 
such  prayer.^  And  by  the  English  practice,  no  prayer  in  the 
bill  was  recpiired.^  The  writ  must  be  supported  by  an  affidavit 
made  by  the  complainant  himself,  or  some  person  acquainted 
with  the  facts.'  The  affidavit  must  be  positive  as  to  the  facts, 
not  merely  upon  information  and  belief,^  except  in  the  case  of 
an  account,  when  the  plaintiff  may  swear  that,  to  the  best  of  his 
belief,  the  sum  named  will  be  due  to  him  on  the  balance  of  the 
account.^  A  writ  was  discharged  when  it  appeared  from  the 
affidavit  that  the  affiant  could  not  have  had  personal  knowledge 
of  the  transaction  to  which  he  swore  positively. i**  The  affidavit 
must  be  positive  as  to  the  intention  of  the  defendant  to  go 
abroad,  or  to  his  threats  or  declarations,  or  those  of  members 
of  his  family  or  his  agents,  showing  such  an  intention  on  his 
part."     An  affidavit  stating  information  from  a  stranger  will 


10  u.  S.  R.  S.,  §  4066. 
§  328.     1  Collinson    v. 


Ves.  .•^5.3;   Elliot  v.   Sinclair,  Jacob, 
545. 

2  Elliot  V.  Sinclair,  Jacob,  545. 

3  E;c  yarte  Brunker,  3  P.  Wms. 
.312;  Mattocks  v.  Tremain,  3  J.  Ch. 
(N.  Y.)  75.  But  see  Lloyd  v. 
Cardy,  Free,  in  Cli.  171. 

4  See  Eq.  Rule  25.  But  see  the 
language  of  Lord  Eldon  in  Collin- 
son V. ,  18  Ves.  353. 

6  Lewis  V.  Shainwald,  7  Saw.  403, 
417. 

6  Collinson  v.  — 


Lewis    V.    Shainwald,    7    Saw.    403, 
18       416,  417. 

7  Collinson  v.  ,   18  Ves.  353; 

Mattocks  V.  Tremain,  3  J.  Ch.    (N. 
Y.)    75. 

8  Rico  V.  Gualtier,  3  Atk.  501; 
Jackson  v.  Petrie,  10  Ves.  164; 
Mattocks  V.  Tremain,  3  J.  Ch.  (N. 
Y.)    75. 

9  Rico  V.  Gualtier,  3  Atk.  501; 
Jackson  v.  Petrie,  10  Ves.  164. 

10  Roddam  v.  Hetherington,  5  Ves. 
91. 

11  Oldham  v.  Oldham,  7  Ves.  410; 
18  Ves.  353;       Collinson    v.    ,    18    Ves.    353; 


i^  1)28]  PRACTICE   UPON    Al'l'tJCATION  1G37 

ordinarily  be  iiisutificieiit.^^  it  is  i)nulent  to  state  in  the  affida\  ii 
that  the  debt  will  be  endangered  by  tlie  defendant's  quitting  the 
eountry.^^  Deficiencies  in  the  affidavit  may  be  supplied  by 
admissions  iu  the  answer.^*  The  court  may  require  as  a  condi- 
tion for  the  issue  of  the  writ  that  the  complainant  give  an  un- 
dertaking to  respond  in  damages  should  the  writ  be  afterwards 
dischargcd.^^  The  writ  is  directed  to  the  marshal,  and  is  in 
substantially  tlie  following  form : — 

The  President  op  the  United   States  op  America   to   the 
Marshal  of  the  Southern  District  of  Xfav  York: 

Greeting, — whereas  it  is  i-epresented  1o  us  in  our  District 
Court  of  the  United  States  for  the  Southern  District  of  New 
York  in  equity,  on  the  part  of  John  Aber,  comi)lainant,  against 
Charles  Dutton,  defendant  (among  other  things),  that  he,  the 
said  defendant,  is  greatly  indebted  to  the  said  complainant  and 
designs  quickly  to  go  into  parts  without  the  United  States  (as 
by  oath  made  on  that  behalf  appears),  which  tends  to  the  great 
prejudice  and  damage  of  the  said  complainant.  Therefore,  in 
order  to  prevent  this  injustice,  we  do  hereby  eommand  you. 
that  you  do,  without  delay,  cause  the  said  Charles  Dutton 
personally  to  appear  before  you,  and  give  sutftcient  bail  or  se- 
curity in  the  sum  of  $1,000  that  the  said  Charles  Dut'i>jn  will 
not  go,  or  attempt  to  go,  into  parts  without  the  United  States 
without  leave  of  our  said  Coui't  ;  and  in  case  llie  said  Cilvrles 
Du'iton  shall  refuse  to  give  such  Bail  or  Security,  then  you  are 
to  commit  the  said  Charles  Dutton  to  our  next  prison,  thei-e 
to  be  kept  in  safe  custody,  until  he  shall  do  it  of  his  own  accord ; 
and,  when  you  shall  have  taken  such  security,  you  are  forthwith 
to  make  and  return  a  certificate  thereof  to  us  in  our  said  Dis- 
trict Court  of  the  United  States  for  the  Southern  District  of 
New  York  distinctly  and  plainly  under  your  hand,  together 
with  this  Writ. 

Knight   V.    Watts,    2    C.    P.    Cooper  see   McGehee    v.    Polk,    24   Ga.    406, 

temp.  Cottenham,  257.  412. 

12  Oldham  v.  Oldham,  7  Ves.  410.  14  Roddam      v.      Hotlierington.     5 

13  Mattocks  v.  Tremain,  3   J.   Ch.  Ves.  91,  95. 

(N.   Y.)    75,  76;   Baker  v.  Haily,  2  ISDaniell's  Ch.  Vr.  (5th  Am.  ed.) 

Dick.    6.'^2;    Daniell's    Ch.    Pr.    (5th       1708. 
Am.  ed.)  1708,  and  cases  cited.    But 
Fed.  Piac!  Vol.  IT— ."..''. 


1638  WRIT    OF   NE   EXEAT  [§  328 

Witness,  the  Honorable  George  C.  Holt,  United  States 
District  Judge,  at  the  City  of  New  York,  in  the  County  and 
State  of  New  York,  the  thirteenth  of  November,  one  thousand 
nine  hundred  and  twelve.^^ 

The  writ  should  be  endorsed  with  the  amount  of  the  sum 
demanded  written  out  in  words  at  length.^'''  When  it  is  issued 
against  a  personal  representative  by  a  person  claiming  a  share 
of  the  residuary  estate,  it  should  be  endorsed  with  the  whole 
amount  due  from  the  defendant,  not  only  to  the  plaintiff,  but  to 
all  persons  interested  in  the  estate.^^  When  the  writ  is  endorsed 
for  a  larger  sum  than  is  due,  the  court  will  ordinarily'  refuse  to 
quash  it,  but  will  require  the  defendant  to  give  security  only 
for  so  much  as  is  really  due.^^  The  writ,  upon  its  issue,  must 
be  delivered  to  the  marshal.  It  is  his  duty  thereupon  to  execute 
it  by  arresting  the  defendant  named  in  it,  and  bringing  him 
before  the  court.^*'  He  has  no  power  to  break  open  doors  under 
the  writ. 2^  The  defendant  may  be  released  upon  giving  suffi- 
cient security  to  satisfy  the  marshal. ^^  After  executing  the  writ, 
the  marshal  should  make  a  return  of  what  he  has  done.^^  The 
defendant  may  move  at  any  time  to  discharge  the  writ,  either 
for  irregularit}-  or  upon  the  merits,  by  disproving  the  charges 
in  the  complainant's  affidavits.^*  But  it  has  been  said  by  Lord 
Eldon,  that  where  the  plaintiff  has  sworn  positively  to  the  debt 
and  to  the  defendant 's  declarations  of  his  intention  to  go  abroad, 
the  defendant's  unsupported  affidavit  will  be  insufficient  to  con- 
tradict this. 2^  If  the  writ  is  discharged  another  writ  may  issue 
upon  a  new  affidavit. ^^  Upon  payment  into  court  of  enough  to 
satisfy  the  plaintiff"s  claim,  the  writ  will  always  be  discharged.^'' 
The  writ  may  be  discharged  if  the  defendant  gives  sufficient 

16  Beames  on  Ne  Exeat,  23,  24.  1945;    Impey   on   Sheriffs    (2d   ed.) 

17  Beanies  on  Ne  Exeat,  93.  rj?,2. 

IsPannell  v.  Taylor,   T.  &  E.  96,  24  Gernon    v.    Boecaline,    2    Wash. 

100.  130;    Grant   v.    Grant,   3   Euss.   598, 

19  Ibid.  602. 

SODaniell's  Ch.  Pr.  (2d  Am.  ed.)  25  Amsinck    v.     Barklay,     8    Ves. 

1943.  594,  597;  Jones  v.  Alephsin,  16  Ves. 

21  Beames  on  Ne  Exeat,  95.  470,  471. 

22  Beames     on     Ne     Exeat,     96;  26  Gernon    v.    Boecaline,    2    Wash. 
Boehm  v.  Wood,  T.  &  E.  332,  340;  130. 

Daniell's  Ch.  Pr.  (2d  Am.  ed.)  1943.  27  Evans  v.  Evans,  1  Ves.  Jr.  96. 

23Daniell's  Ch.  Pr.   (2d  Am.  ed.) 


<328] 


PRACTICE  UPOX   APPLICATION 


1639 


security  to  .satisfy  the  court.^^  The  security  usually  requirid 
conditioned  that  the  defendant  abide  by  the  process  and  decree 
of  the  court ;  ^^  but  security  that  the  defendant  abide  by  and 
perform  the  ])rocess  and  decree  of  the  court  ma}'  be  required.^'* 
The  disciiarging  order  usually  enjoins  the  defendant  from  brinrr- 
ing  an  action  of  false  imprisoinnent ;  ^^  and  the  prosecution  of 
such  an  action  ma}'-  be  restrained  by  a  sulisequent  order.^^  jf 
the  court  considers  the  writ  improperly  issued,  it  may  direct  a 
reference  to  a  master  to  ascertain  the  damages  sustained  l)y  the 
defendant,  and  direct  the  payment  to  him  of  the  amount  foun( 
due  ])y  the  sureties  upon  the  plaintiff's  undertaking.^^  An 
amendment  of  tlic  bill  which  does  not  materially  alter  the  ease 
does  not  discharge  the  wri-t.^* 


28  Roddani  v.  Hetherington,  5  Ves. 
91,  95;  Boon  v.  Collingwood,  1  Dick. 
115;    Beams    v.    Ne    Exeat,    98.    99. 

29Gris\vo]d  v.  Hazard,  141  U.  S. 
260,  281,  35  L.  ed.  678,  687. 

30  For  defenses  to  such  a  bond, 
see  Ibid. 

31  Quoted  with  approval  by  Gross- 
cup,  J.,  in  Gooding  v.  Ecid,  Mur- 
doek  &  Co.,  C.  C.  A.,  177  Fed.  684, 


688;  Darley  v.  Nicholson,  2  Dr.  & 
War.  66. 

32  Quoted  with  approval  hy  Gross- 
cup,  J.,  in  Gooding  v.  Reid,  Mur- 
dock  Co.,  C.  C.  A.,  177  Fed.  684, 
688;  Darley  v.  Nicholson,  2  Dr.  & 
War.  86. 

33Sichcl  V.  Raphael,  4  L.  T.  (N. 
S.;    114. 

34  Grant  v.  Grant,  5  Russ.  189. 


CHAPTER  XXI. 

EVIDENCE   AT   LAW   AND  IN  EQUITY. 

§  329.  Evidence  in  general.  The  Revised  Statutes  provide 
that  ''the  mode  of  proof  in  the  trial  of  actions  at  common  law 
shall  be  by  oral  testimony  and  examination  of  witnesses,  in  open 
court,  except  as  hereinafter  provided  : "  ^  and  ' '  the  mode  of  proof 
in  causes  of  equity  and  of  admiralty  and  maritime  jurisdiction 
shall  be  according  to  rules  now  or  hereafter  prescribed  by  the 
Supreme  Court,  except  as  herein  specially  provided  for. ' '  ^  Evi- 
dence consists  of  admissions  upon  the  record,  documents,  and  the 
testimony  of  witnesses. 

No  objection  can  be  taken,  on  an  appeal  to  the  Supreme 
Court,  to  the  admissibility  in  evidence  of  any  deposition,  deed, 
grant,  or  other  exhibit  found  in  the  record,  unless  the  record 
shows  that  objection  was  taken  thereto  in  the  court  below.' 

It  is  the  safer  practice  when  evidence  is  admitted  over  the  ob- 
jection of  irrelevancy  to  claim  surprise  and  to  apply  for  a  post- 
ponement of  the  trial.* 

§  329a.  Judicial  notice.  The  Federal  courts,  including  the 
District  Court  of  Alaska, ^  take  judicial  notice:  of  all  public  stat- 
utes, whether  State  ^  or  Federal,'  including  the  statutes  of  a 

§  329.  lU.    S.   R.   S.,    §861.      See  L.    ed.    1061;     Gormley    v.    Biniyan, 

Beaidsley  v.  Littell,  14  Blatehf.  102;  138  U.  S.   623,  635,  34  L.  ed.  1086, 

Ex  parte  Fisk,  113  U.  S.  713,  28  L.  1090;   Mills  v.  Green,  159  U.  S.  651, 

ed.  1117.  40  L.  ed.  293;  Fourth  Nat.  Bank  v. 

2  IT.  S.  R.  S.,  §  862.  See  Blease  Franeklyn,  120  U.  S.  747,  30  L.  ed; 
V.  Garlington,  92  U.  S.  1,  23  L.  ed.  Kansas  City  Western  Ry.  Co.  v.  Mc- 
521.  Adoo,    240   U.   S.    57,   54;    Southern 

3  S.  C.  Rule  13.  Pae.  Co.  v.  Dc  Valle  Da  Costa,  C.  C. 

4  Arkansas  Grand  Prairie  Oil  &  A.,  190  Fed.  689.  Of  the  jurisdie- 
Gas  Co.  V.  Davidson,  233  Fed.  tion  of  the  State  courts  within  the 
041,  district,    Virginia    &    West    Virginia 

§  329a.  IJesson    v.    Noyes,    C.    C.      Coal   Co.   v.   Cliarles,    C.    C.    A.,   251 

A.,  245  Fed.  46.  Fed.    83;    U.    S.    v.    Atlantic    Coast 

2  Owings    V.    Hull,    9    Pot.    607,    8      Line  Co.,  224  Fed.  160,  and  whether 

1640 


J;  :i29aj 


JUDICIAL   NOTICE 


l»i41 


such  a  court  is  accustomed  to  try 
issues  of  fact  by  a  jury,  U.  S.  v. 
Atlantic  Coast  Line  Co.,  224  Fed. 
160.  Acts  which  provide  for  the 
construction,  operation  and  lease  of 
railroads  are  public  acts  of  which 
the  courts  take  judicial  notice. 
Western  &  A.  R.  Co.  v,  Roberson, 
C.  C.  A.,  61  Fed.  592.  That  a  rail- 
road company  has  been  incorporated 
by  a  State  statute,  Peterborough  R. 

B.  V.  Boston  &  M.  R.  R.,  C.  C.  A., 
239  Fed.  97.  That  the  Baltimore 
&  Ohio  Railroad  Company  is  a  com- 
mon carrier  and  that  it  may  be 
presumed  to  do  business  in  Indi- 
ana, Baltimore  &  O.  R.  Co.  v.  Reed, 

C.  C.  A.,  223  Fed.  689.  The  Federal 
courts  will  follow  a  State  statute 
providing  that  judicial  notice  shall 
be  taken  of  every  act  of  the  legis- 
lature whether  public  or  private. 
Case  V.  Kelly,  133  U.  S.  21,  23  L. 
ed.  513.  They  may  take  judicial 
notice  of  the  State  statutes  which 
were  in  force  before  the  adoption  of 
the  Federal  Constitution.  Loree  v. 
Abner,  C.  C.  A.,  57  Fed.  159.  They 
will  also  take  judicial  notice  of  any 
rule  of  law  established  by  the  de- 
cisions of  the  State  courts.  La- 
mar v.  Micou,  114  U.  S.  218,  29 
L.  ed.  94,  such  as  the  law  of  the 
road  in  the  same  or  in  another  State, 
Lane  v.  Sargent,  C.  C.  A.,  217  Fed. 
'2'A7.  But,  it  has  been  held,  not 
always  of  a  rule  of  ptaetice.  Yar- 
nell  v.  Felton,  104  Fed.  161;  Ran- 
dall v.  New  England  Order  of  Pro- 
tection, 118  Fed.  782.  Nor  of  a 
municipal  ordinance.  This  must  be 
pleaded  and  proved.  Choctaw,  O. 
&  G.  R.  Co.  v.  Hamilton,  182  Feil. 
117. 

They    may    take   notice   of   a    for- 
eign   statute    regulating    navigation. 


The  New  York,  175  U.  S.  187,  44 
L.  ed.  126.  And  of  public  statutes 
of  a  foreign  nation  while  exercising 
jurisdiction  over  territory  since  ac- 
quired by  the  United  States.  V.  S. 
V.  Perot,  98  U.  S.  428,  25  L.  ed. 
251;  U.  S.  V.  Chaves,  159  IJ.  S. 
4.j2,  40  L.  ed.  215;  Bouldin  v. 
Phelps,  30  Fed.  547;  Sandoval  v. 
Priest,  C.  C.  A.,  210  Fed.  814.  That 
tlie  civil  law  is  the  foundation  of 
the  jurisprudence  of  a  foreign 
country,  Barrielle  v.  Bettman,  199 
Fed.  838;  Panama  Elec.  Ry.  Co.  v. 
Myers,  C.  C.  A.,  249  Fed.  19,  and 
that  consequently  there  is  no  pre- 
sumption that  the  laws  are  the  same 
as  those  of  the  common  law;  but 
not  of  any  of  the  details  of  the 
foreign  laws  as  to  the  right  of  heirs 
to  collect  a  claim  due  their  ances- 
tors without  appointment  of  a  per- 
sonal representative.  Barrielle  v. 
Bettman,  191  Fed.  858.  Otherwise 
they  do  not  take  judicial  notice  of 
foreign  statutes.  Liverpool  &  G. 
W.  Co.  v.  Phoenix  Ins.  Co.,  129 
U.  S.  397,  32  L.  ed.  788;  Coghlan 
V.  South  Carolina  R.  Co.,  142  U.  S. 
101,  35  L.  ed.  951. 

The  courts  take  judicial  notice 
of  the  seals  of  State  of  foreign 
nat-ons,  but  not  of  their  inferior 
(IP]  artments,  officers  and  their  seals. 
Schoerken  v.  Swift  &  (".  &  B.  Co., 
7  Fed.  469,  471.  Nor  of  the  local 
laws  of  the  various  tribes  in  the 
Indian  Territory.  Wilson  v.  Owens, 
C.  C.  A.,  86  Fed.  571.  Cf.  Davison 
v.  Gibson,  C.  C.  A.,  56  Fed.  443. 
Nor,  it  has  been  held,  of  the  local 
rules  and  regulations  of  mines  even 
when  they  are  recognized  by  the 
mining  laws  of  the  United  States. 
Meyer  v.  Stevens,  78  Fed.  787.  Nor 
of    the    rules    and    ordinances    of    a 


1642 


EVIDENCE 


[§  329a 


State  in  another  Federal  district.*  Of  treaties  of  the  United 
States,^  of  the  proceedings  and  reports  of  commissioners  ap- 
pointed thereunder.^  Of  the  recognition  by  the  United  States 
of  the  de  facto  governments  of  foreign  countries.''^  Of  procla- 
mations of  the  President  of  the  United  States.^  Of  the  decisions 
of  the  Executive  Departments  concerning  matters  within  their 
respective  jurisdictions.^     Of  executive  regulations  authorized 

Groeck,  68  Fed.  609.  The  decision 
of  the  Secretary  of  War  that  a 
stream  is  navigable.  U.  S.  v. 
Brewer-Elliott  Oil  &  Gas  Co.,  249 
Fed.  609,  619.  The  regulations  of 
the  Secretary  of  War  under  the  Se- 
lect Service  Act.  U.  S.  v.  Casey, 
247  Fed.  363.  The  date  of  the 
draft  under  that  act.  U.  S.  v. 
Sugarman,  245  Fed.  604.  Corre- 
spondence between  State  and  Fed- 
eral officers  concerning  swamp  lands. 
Kirby  v.  Lewis,  39  Fed.  66;  Pero- 
vich  V.  Perry,  C.  C.  A.,  167  Fed. 
789,  a  telegram  signed  by  the  sur- 
name of  the  Attorney  General  was 
presumed  to  be  authentic. 

The  custom  of  issuing  and  dating 
land  patents  several  years  after  the 
payment  of  the  purchase-money  and 
the  issue  of  the  certificates  of  entry. 
Bigelow  v.  Chatterton,  C.  C.  A.,  51 
Fed.     614.      The    activities    of    the 
Bed    Cross   during   the   war.     U.  *S. 
V.  Negeler,  252  Fed.  217,  220.     But 
7iot.,  it  has  been   held,  of  the  filing 
of   the   map   of   a  railroad   route   in 
the  Interior  Department.     McKeoin 
V.    No.    Pac.    K.    Co.,    45    Fed.    464. 
.  Nor    of    the    issue    of    letters-patent 
for   inventions.     Bottle   Seal   Co.    v. 
De  La  Vergne  B.  &  S.  Co.,  47  Fed. 
59.      Of    the    seals    of    the    Depart- 
ment  of   Labor,    37    St.    at   L.    736, 
Comp.     St.,     §  932 ;     the     Interstate 
Commerce  Commission,  24  St.  at  L. 
385,  Comp.  St.,  §  8586;  and  the  Fed- 
eral   Trade    Commission,    38    St.    at 
L.  717,  Comp.  St.,  §  8836a;  and  the 


religious  body,  such  as  the  Presby- 
terian Church.  Barclay  v.  Hayes, 
208   Fed.  319,  324. 

3  Such  as  an  act  of  Congress  au- 
thorizing the  construction  of  a 
bridge.  Pennsylvania  Ey.  Co.  v. 
Baltimore  &  N.  Y.  Ry.  Co.,  37  Fed. 
129. 

4  Mather  v.  Stokely,  218  Fed. 
764;  Williams  v.  William  B. 
Scaife  &  Sons  Co.,  227  Fed.  922. 

6  Lacroix  Fils  v.  Sarrazin,  15  Fed. 
489. 

6  Daigle  V.  U.  S.,  C.  C.  A.,  237 
Fed.  159. 

7  Oetjen  v.  Central  Leather  Com- 
pany, 246  U.  S.  297. 

8  A  public  proclamation  of  gen- 
eral pardon  and  amnesty.  Jenkins 
V.  Collard,  145  U.  S.  546,  36  L.  ed. 
812.  Of  the  acts  of  the  Executive 
Department  in  relation  to  a  Guano 
island.  Jones  v.  U.  S.,  137  U.  S. 
202,  34  li.  ed.  691.  Of  proclama- 
tions concerning  a  blockade  and  of 
the  practice  in  the  Navy  Depart- 
ment in  regard  to  captures.  The 
Paqueta  Habana,  175  U.  S.  677, 
44  L.  ed.  320.  Of  the  necessity  to 
take  possession  and  control  of  rail- 
roads during  the  war.  Meyer  v. 
Louisville  &  N.  R.  Co.,  247  Fed. 
893.  Of  an  executive  order  taking 
possession  of  ships  owned  by  ene- 
mies. The  Kaiser  Wilhelm  II,  C. 
C.  A.,  246  Fed.  786. 

9  Such  as,  the  withdrawal  of  the 
Secretary  of  the  Interior  of  public 
land  from  sale.       S.  Pac.  R.  Co.  v. 


§  329a] 


JUDICIAL  NOTICE 


1643 


by  acts  of  Congress  which  have  the  force  of  statute. i°  Of  the 
boundaries  of  the  State  or  county  where  they  hold  their  sessions, 
of  the  judicial  districts  and  of  the  municipal  subdivisions  within 
such  State,  and  of  tlic  distance  from  the  State  capital  to  any 
State  subdivision  when  estimated  by  a  public  survey.^^  Of  the 
boundaries  of  all  the  States. ^^  Of  all  proceedings  in  the  same 
court  with  the  .same  parties,^^  or  in  connected  litigation  even 


U.  S.  Shipping  Board,  39  St.  at  L. 
729,  Conip  St.,  §  8146b. 

10  Caha  v.  U.  S.  153  U.  S.  211, 
222,  38  L.  ed.  415,  419;  Ex  parte 
Lowe,  177  Fed.  789,  795;  Leonard 
V.  Lennox,  181  Fed.  760.  Of  the 
regulations  of  the  Post-master  Gen- 
eral, under  statutory  authority  as 
to  the  mailings  of  poisons.  Bruce 
V.  U.  S.,  C.  C.  A.,  202  Fed.  98.  The 
authority  of  post  office  inspectors 
to  demand  money  order  funds.  Fos- 
ter V.  U.  S.,  C.  C.  A.,  256  Fed.  207. 
But  not  of  the  regulations  of  the 
Light  House  Board.  Smith  v.  Hako- 
pee,  C.  C.  A.,  97  Fed.  974. 

11  Hoyt  V.  Russell,  117  U.  S.  401, 
29  L.  ed.  914.  Of  the  boundaries 
of  counties  within  the  district.  Ross 
V.  Fort  Wayne,  C.  C.  A.,  63  Fe<l. 
466,  469;  Bhiefield  W.  &  Imp.  Co. 
V.  Sanders,  C.  C.  A.,  63  Fed.  333. 
That  certain  counties  are  within 
the  district  in  which  the  action  is 
])rought.  XT.  S.  V.  Stainward,  207 
Fed.  198.  Of  the  county  where  an 
offense  was  committed  after  evi- 
dence of  its  location  with  reference 
to  a  city,  a  river  and  certain  rail- 
roads. Bradley  v.  United  States, 
C.  C.  A.,  254  Fed.  289.  That  Kenly, 
North  Carolina  is  about  10  miles 
south  of  Sniithfield  on  the  main  line 
of  the  Atlantic  Coast  Line  Railroad. 
U.  S.  V.  Atlantic  Coast  Line  Co., 
224  Fed.  160.  That  there  are  sev- 
eral school  houses  within  four  miles 
of  a  point  in  the  city  of  Memphis, 
Tennessee.      Laughter    &    Fisher    v. 


McLain,  229  Fed.  280.  Of  the  exis- 
tence or  non-existence  in  a  State 
of  a  port  of  entry,  at  which  Euro- 
peans can  be  landed.  Ex  parte 
Lair,  177  Fed.  789,  795.  That  Ashe- 
ville,  N.  C,  is  distant  more  than 
one  hundred  miles  from  Dubutjue, 
Iowa.  Mut.  B.  L.  I.  Co.  v.  Robin- 
son, C.  C.  A.,  22  L.R.A.  325,  58 
Fed.  723.  Of  the  States  in  which  a 
railroad  chartered  by  Congress  is 
situated.  Farmers'  L.  &  Tr.  Co. 
v.  No.  Pac.  R.  Co.,  69  Fed.  871, 
881. 

12  Thornton  v.  Peters,  9  Fed.  517. 

ISDimmick  v.  Tompkins,  194  U. 
S.  540,  48  L.  ed.  1110,  1113;  Wil- 
son V.  Calculagraph  Co.,  C.  C.  A., 
153  Fed.  961;  Be  Sussman,  190 
Fed.  111.  Contra,  U.  S.  v.  Mc- 
Mahon,  175  Fed.  296.  Of  an  order 
denying  a])plication  for  a  certiorari 
in  a  proceeding  between  the  same 
parties.  Dimmick  v.  To7nj)kins,  194 
U.  S.  540,  548,  48  L.  ed.  1110.  Of 
the  date  of  filing  a  petition  for  an 
adjudication  in  bankruptcy.  Hall  v. 
Glenn,  247  Fed.  997.  Of  proceed- 
ings ui>on  a  former  appeal  in  the 
same  case.  Wilson  v.  Calculagraph 
Co.,  C.  C.  A.,  153  Fed.  961.  Contra. 
Merriman  v.  Chicago,  T>.  &  V.  U. 
Co.,  C.  C.  A.,  120  Fed.  240.  Even  it 
has  been  held  upon  an  a])plication 
for  a  habeas  corpus,  of  tiie  alHrm- 
aiue  of  a  previous  order  deny- 
ing the  writ  to  the  same  petitioner. 
Be  Durant,  84  Fed.  314;  and 
of     all     proceedings     between     the 


1644 


EVIDENCE 


[§  329a 


when  the  parties  are  not  the  same  ^*  snch  as  a  test  case.^^  Of  the 
historj^  and  state  of  an  act  or  process  the  manufacture  of  which 
is  generally  known. ^^     Of  the  facts  of  history,  general  ^'^  and 


same  parties  upon  another  appeal 
in  a  suit  for  the  same  relief.  Bien- 
ville Water  Supply  Co.  v.  Mobile, 
186  U.  S.  212,  217,  46  L.  ed.  1132, 
1134;  Cushman  Paper  Box  Mach. 
Co.  V.  Goddard,  C.  C.  A.,  95  Fed. 
664,  66.5,  37  C.  C.  A.,  221.  See 
11    L.R.A.    (N.S.)    616. 

14  U.  S.  Fidelity  &  Guaranty  Co. 
V.  Sandoval,  .223  U.  S.  227,  233,  56 
L.  ed.  415,  418;  De  Beam  v.  Safe 
Deposit  &  Tr.  Co.,  233  U.  S.  24. 

It  has  been  held  that  the  Federal 
courts  will  take  judicial  notice  in 
collateral  proceedings  of  their  own 
orders  appointing  receivers.  Pit- 
kin v.  Cowen,  91  Fed.  559.  Of  the 
proceedings  in  the  suit  in  which 
such  an  appointment  was  made. 
Louisville  Tr.  Co.  v.  Cincinnati,  C. 
C.  A.,  76  Fed.  296,  318.  Of  the 
tiling  of  a  petition  in  bankruptcy 
upon  an  application  in  the  same 
proceeding.  Be,  Goldberg,  117  Fed. 
692,  694.  Of  previous  applications 
and  orders  in  the  same  bankruptcy 
proceeding.  Be  Sussman,  190  Fed. 
111.  Of  the  terms  of  an  order  re- 
storing property  to  the  defendant. 
Baltimore  &  O.  R.  Co.  v.  Burris,  C. 
C.  A.,  Ill  Fed.  882,  884.  When 
sitting  in  admiralty,  of  proceedings 
in  the  same  court  in  bankruptcy 
affecting  the  custody  of  the  prop- 
erty. Hudson  Oil  &  Supply  Co.  v. 
Booraem,  216  U.  S.  604,  54  L.  ed. 
636.  See  The  Falcon,  C.  C.  A., 
177  Fed.  916.  But  not  in  general 
of  the  pendency  of  other  proceed- 
ings in  the  same  court.  Be  Mander- 
son,  C.  C.  A.,  51  Fed.  501.  Nor  of 
the  decisions  upon  the  facts  in  other 
cases.  Stewart  v.  Masterson,  131 
TJ.   S.  151,   33   L.   ed.   114.     But  see 


De  Beam  v.  Safe  Deposit  and  Trust 
Co.,  233  U.  S.  24.  Nor  whether 
an  assignment  in  England  by  a 
party  for  the  benefit  of  creditors 
was  voluntary  at  common  law  or 
statutory.  Be  Berthoud,  231  Fed. 
529.  A  Federal  court  will  take 
judicial  notice  that  several  clauses 
of  a  will  have  been  considered  and 
construed  by  the  highest  court  of 
the  state.  Barker  v.  Eastman,  192 
Fed.  659.  Upon  an  appeal  from 
an  allowance  of  a  claim  in  a  fore- 
closure suit  in  which  the  appellant 
described  himself  as  ' '  the  person 
having  trustee  of  defendant 's  prop- 
erty, ' '  the  court  of  review  refused 
to  take  judicial  notice  of  the  or- 
ders of  the  court  below  in  the  same 
suit  directing  the  sale  of  the  prop- 
erty or  of  the  proeeedings  there- 
under. Fitzgerald  v.  Evans,  C.  C. 
A.,  49  Fed.  426.  Courts  will  not 
take  judicial  notice  of  decisions 
of  the  Interstate  Commerce  Com- 
mission unless  the  official  reports 
are  offered  in  the  manner  required 
by  statute.  Eobinson  v.  Baltimore 
&  Ohio  R.  R.  Co.,  222  U.  S.  506, 
56  L.  ed.  288.     See  supra,  §  77f. 

A  court  will  usually  take  notice 
of  the  dates  of  its  own  sessions. 
George  C.  De  Lacy  v.  William  F. 
Kelly,   147    App.   Div.    (N.   Y.)    37. 

15  Rumf  ord  Chemical  Works  v. 
Hygienic  Chemical  Co.,  159  Fed.  436, 

16  Brown  v.  Piper,  91  U.  S.  37, 
23  L.  ed.  200;  King  v.  Galium,  109 
U.  S.  99,  3  Sup.  Ct.  85,  27  L.  ed. 
870;  Heaton  P.  B.  F.  Co.  v. 
Schlochtmeyer,  69  Fed."  592;  s.  c, 
C.  C.  A.,  72  Fed.  520;  Charles  Boldt 
Co.  V.  Turner  Bros.  Co.,  C.  C.  A., 
199   Fed.   139;    H.   B.    Smith   &   Co. 


S  '629a  \ 


JUDICIAL    NOTICE 


1645 


local."    Of  scieiice,^^  chemistry ,20  natural  hi.stor}',^!  geography 

Seattle   liarhor  have   for  vears  be 


22 


V.  Southington  Mfg.  Co.,  235  Fed. 
160,  163.  Especially  of  the  state 
of  the  art  when  disclosed  by  the 
court's  own  records  in  another  case. 
Cushman  P.  B.  Mach.  Co.  v.  God- 
dard,  C.  C.  A.,  95  Fed.  664.  See 
S  ,367,  infra;  Whitzel  v.  Berman,  C. 
C.  A.,  212  Fed.  734,  736,  per  Coxe, 
J.:  "We  think,  however,  that  no 
authority  can  be  found  for  the  in- 
troduction for  the  first  time  in  an 
appellate  court  of  eleven  patents 
dealing  with  a  complicated  struc- 
ture, with  no  word  of  explanation 
regarding  them  except  from  counsel 
at  the  argument  and  in  the  brief. 
The  duty  of  an  appellate  court  is  to 
ascertain  whether  the  court  below 
has  fallen  into  error  and  it  would  be 
manifestly  unfair  to  the  appellee 
and  to  the  judge  to  reverse  his  de- 
cree upon  documents  which  were  not 
in  evidence  and  which  he  never 
saw. ' ' 

17  Of  the  presence  in  Congress  of 
representatives  chosen  at  a  particu- 
lar election.  Jones  v.  Montague,  194 
r.  S.  147,  153,  48  L.  ed.  913,  915; 
Richardson  v.  Chesney,  218  U.  S. 
487,  54  L.  ed.  1121.  Of  the  exis- 
tence of  war  between  the  United 
States  and  another  country  at  any 
time.  Stephens  v.  U.  S.,  C.  C.  A., 
261  Fed.  590.  Of  the  existence  of 
civil  war  in  a  foreign  State.  Under- 
hill  v.  Hernandez,  168  Fed.  U.  S. 
250,  42  L.  ed.  456.  That  the  Do- 
minion of  Canada  is  a  British  pos- 
session. Ex  parie  Lane,  6  Fed.  34; 
Lumley  v.  Wabash  Ry.  Co.,  71  Fed. 
21;  but  see  s.  c,  C.  C.  A.,  76  Fed. 
66,  69.  But  not  it  has  been  held, 
of  the  fact  that  during  the  Civil 
War  the  courts  of  a  county  were 
closed.     Cross  v.  Sabin,  13  Fed.  308. 

18  That      the     lands     surrounding 


Seattle  liarhor  have  for  years  been 
selected  and  known  as  the  site  of  a 
city.  Ex  parte  Davidson,  57  Fed. 
883.  But  not  of  the  facts  stated  in 
reports  and  messages  of  Governors 
to  State  legislatures.  Houston  &  T. 
C.  Ry.  Co.  v.  Texas,  177  U.  8.  66, 
94,  44  L.  ed.  673,  686.  But  see 
Coeur  d'Alene  C.  &  M.  Co.  v.  Min- 
ers' Union,  19  L.R.A,  382,  51  Fed. 
260.  Nor  of  a  report  of  a  State 
auditor  concerning  the  amounts  of 
the  various  kinds  of  property  sub- 
ject to  taxation.  First  Nat.  Bank 
V.  Chapman,  173  U.  S.  205,  43  L.  ed. 
669.  Nor  an  established  custom  of 
State  ofiicors  to  assess  property  for 
taxation  at  less  than  its  actual  value. 
New  York  v.  Barker,  179  U.  S.  279. 
Contra,  Railroad  &  Tel.  Cos.  v. 
Board  of  Equalizers,  85  Fed.  362. 

19  In  a  suit  for  the  infringement 
of  a  i)atent  the  court  will  take 
judicial  notice  of  all  matters  of 
jieneral  scientific  knowledge;  all 
matters  of  common  knowledge,  and 
all  matters  in  common  use;  such  as 
mechanical  devices  which  are  of 
common  knowledge  among  all ;  the 
nature  of  a  patented  invention;  and 
as  a  deduction  from  these  whether 
an  invention  claimed  is  patentable. 
Lutcn  V.  Allen,  254  Fed.  587. 

20  Of  tlie  facts  of  chemistry  con- 
tained in  the  United  States  Phaiino- 
copoeia.  Melanson  v.  V.  S.,  C.  V. 
A.,  256  Fed.  78.;.  That  cocaine  is 
a  derivative  of  cocoa  leaves,  Ihid. 
That  heroine  and  morphine  are  de 
rivatives  of  opium.  Ibid.  Contra. 
That  opium  is  not  grown  or  pro- 
duced in  the  United  States.  United 
States  V.  Yee  Fing,  222  Fed.  1.34 
United  States  v.  Brown,  224  Fed 
735.  That  crude  glycerine  is  a  prod- 
ut-t  derived   from   animal   fats.     Illi 


1646 


EVIDENCE 


[§  329a 


and  of  the  manner  of  transacting  business,23  which  are  usually 


nois  Cudahy  Packing  Co.  v.  Kansa* 
City  Soap  Co.,  247  Fed.  556.     That 
a  "whiskey  cocktail "  is  an  intoxi- 
cating drink.     U.  S.  v.  Ash,  75  Fea. 
651.     But   not   that   a   beverage   go- 
ing through  a  malting  process  which 
contains    no    malt    is    not    a    malt 
liquor.     Leisy  Brewing  Co.  v.  Atchi 
son,  225   Fed.   753,  nor  that  a  bev- 
erage containing  less  than  one-third 
of  one  percent  of  alcohol   is  intoxi- 
cating.    Ibid.     The   Supreme   Court 
of    the    United    States    has    unani- 
mously  held   that   "champagne  is  a 
beverage   singularly   grateful  to   the 
taste. ' '     DeBary  v.  Arthur,  93  U.  S. 
420,   423,   23   L.  ed.  936,  937.     But 
not    that    there    is    any    substantial 
difference     between     lead     or     other 
soft  metal  when  wrought  or  drawn. 
McCloskey  v.  Du  Bois,  8  Fed.  710, 
712. 

21  That  the  imported  native  sheep 
of  all  countries  produce  fleeces  the 
value  of  which  is  depreciated  by  an 
excess  of  hair.  Lyon  v.  Marine,  C. 
C.  A.,  55  Fed.  964. 

22  Of  the  general  topography, 
characteristics  and  climatic  condi- 
tions of  the  territory  within  its  jur- 
isdiction, such  as  that  a  place  is  in 
a  remote  and  very  sparsely  settled 
part  of  Alaska  transportation  from 
which  in  the  latter  part  of  Septem- 
ber is  about  to  close,  resulting  in  the 
departure  therefrom  of  many  who 
wish  to  go  out  for  the  season.  Camp- 
bell v.  U.  S.,  C.  C.  A.,  221  Fed.  186. 
That  the  pasturage  upon  uninclosed 
western  lands  is  very  slight  evi- 
dence of  possession.  "Whitney  v.  U. 
S.,  167  U.  S.  529,  42  L.  ed.  263. 

That  the  State  of  Sonora  in  the 
United  States  of  Mexico  is  a  large 
country  containing  numerous  cities. 
U.  S,  v.  Albert  Steinfeld  &  Co.,  209 


Fed.  904.  That  all  Frenchmen  are 
not  born  in  France,  nor  all  Germans 
born  in  Germany,  all  Italians  in 
Italy,  all  Japanese  in  Japan  and  all 
Chinese  in  China.  U.  S.  v.  Sisson, 
230  Fed.  974. 

That  a  river  is  navigable  between 
two   important   cities.     Lands   v.   A. 
Cargo  of  227   Tons  of  Coal,  4  Fed. 
478.     But  not  it  seems,  that  a  river 
is    navigable.      U.    S.   v.   Brewer-El- 
liott Oil  &  Gas  Co.,  249   Fed.   609, 
or  non-navigable  at  a  certain  point. 
U.    S.   V.    Eio   Grande   D.   &   I.   Co., 
174  U.  S.  690,  698,  43  L.  ed.  1136, 
]139.     Nor  of  the  navigability  of  a 
river  or  lake  of  insignificant  capac- 
ity,   such    as    Big    Lake    and   Little 
River     in     Northeastern     Arkansas. 
Harrison  v.  Fite,  C.  C.  A.,  148  Fed. 
781.      The    meandering    of    a    river 
upon  a  public  map,  in  view  of  the 
practice   of   public   surveyors  is  evi- 
dence,   but   not   conclusive   evidence, 
of  its  navigability.    U.  S.  v.  Brewer- 
Elliott    Oil    &    Gas    Co.,    249    Fed. 
609.     It  has  been  held  that  a  judge 
in   admiralty   may   use   his   personal 
observation  and  experience  in  deter- 
mining   the    strength    and   effect    of 
cross-currents   in   a   certain   channel. 
The    Eleanore,    C.    C.    A.,    248    Fed. 
472.      Whether   a   State   Court   may 
take   judicial   notice   of   the  naviga- 
bility of  a  stream,  is  a  question  of 
local  law,  which  cannot  be  reviewed 
by  the  Supreme  Court  of  the  United 
States,   because   it   deprives   the   un- 
successful   litigant    of   his   right    of 
trial    by    jury.      Wear    v.    State    of 
Kansas,    245    U.    S.    154,    38    Sup. 
Ct.  55,  —  L.  ed.  — . 

23  That  it  is  the  custom  and  the 
duty  of  a  railroad  agent  to  sell 
tickets  on  demand  for  any  railroad, 
over  the  line  of  which,  coupon  tickets 


330] 


ADMISSIONS 


1647 


known  in  the  community  where  the  court  is  lield.   And  in  general 
of  all  facts  of  which  judicial  notice  is  taken  hy  other  courts.^* 

§330.  Admissions.  Admissions  upon  the  record  are  either 
actual  or  constructive.  Actual  admissions  are  made  either  in 
the  pleadings  or  hy  agreement.  Every  statement  of  a  fact  ma- 
terial to  the  issues  made  in  the  pleadings,^  affidavits,^  or  other 


may  be  issued  from  the  agent 's  line 
and  the  intervening  connections. 
General  Inv.  Co.  v.  Lake  Shore  & 
M.  S.  Ry.  Co.,  226  Fed.  976.  The 
increasing  difficulty  of  assessment 
insurers  to  continue  an  existence 
because  of  the  increasing  age  of  the 
survivors  and  the  consequent  en- 
hanced death  rate  wliich  discourages 
new  members.  Sherg  v.  Merchants 
Life  Ins.  Co.,  2.*}7  Fed.  484.  That 
expensive  patented  machinery  made 
up  of  many  parts,  manufactured  for 
a  particular  plant  hut  not  installed, 
has  no  staple  value.  Fisher  Hy- 
draulic Stone  &  Machinery  Co.  v. 
Warner,  C.  C.  A.,  2X1  Fed.  527. 

24  Not  of  all  statements  in  en- 
cyclopaedias, dictionaries  and  text- 
books which  are  not  matters  of  com- 
mon knowledge.  Kaolatype  Eng. 
Co.  V.  Hoke,  ao  Fed.  444. 

§  330.  1  No.  Pac.  R.  Co.  v.  Paine, 
119  U.  S.  561,  30  L.  ed.  513.  But 
see  Smith  v.  Davison,  41  Fed.  172. 
It  has  been  held  that  an  admission 
in  a  pleading  may  be  offered  in  evi- 
dence, although  it  has  been  amended 
so  as  to  withdraw  same.  Green- 
hall  v.  Carnegie  Tr.  Co.,  180  Fed. 
812;  Ranken  v.  Probey,  136  App. 
Div.  (N.  Y.)  134.  But  it  is  not 
conclusive.  Ibid.  An  admission  in 
an  unverified  pleading  in  another 
suit  which  was  signed  only  by  an 
attorney  cannot  Ix^  admitted  in  evi- 
dence. Delaware  Co.  Com'rs  v.  Die- 
bold  S.  &  L.  Co.,  133  U.  S.  473,  33 
L.  ed.  674.  See  Creal  v.  Gallup,  C. 
C.    A.,    231    Fed.    76;    Oregon    &    C. 


R.  Co.  v.  Grubissich,  C.  C.  A.,  206 
Fed.  577.  Statements  in  a  plead- 
ing, verified  by  a  party  in  another 
suit,  are  admissible  in  evidence. 
Balloch  v.  Hooper,  146  U.  S.  363, 
36  L.  ed.  1008;  Pope  v.  Aliis,  115 
U.  S.  363,  29  L.  ed.  393;  Cook  v. 
Barr,  44  N.  Y.  156;  Illinois  Cent. 
R.  Co.  v.  Norris,  C.  C.  A.,  245  Fed. 
926.  But  see  U.  S.  Gramaphone 
Co.  V.  Nat.  Gramaphone  Corp.,  107 
Fed.  129;  Am.  Coat  Pad  Co.  v. 
Phojnix  Pad  Co.,  C.  C.  A.,  113  Fed. 
629,  632;  Keith  Lumber  Co.  v. 
Houston  Oil  Co.,  C.  C.  A.,  257  Fed. 
1.  Except  in  a  criminal  prosecution 
or  in  an  action  to  enforce  a  pen- 
alty or  forfeiture.  U.  S.  R.  S., 
§  860 ;  Daly  v.  Brady,  69  Fed. 
285.  An  attorney  has  been  allowed 
to  testify  that  the  admission  was 
made  as  a  matter  of  form,  with- 
out information  as  to  its  truth 
and  in  order  to  raise  a  question  of 
law.  Ranken  v.  Probey,  136  App. 
Div.  (N.  Y.)  134.  The  record  on 
appeal  in  an  action  in  a  State  court, 
including  evidence,  was  held  inad- 
missible in  an  action  in  a  Federal 
court  between  two  of  the  defend- 
ants, in  which  the  issues  were  not 
the  same.  Rinehart  &  Dennis  Co.  v. 
Childress  &  Taylor,  C.  C.  A.,  257 
Fed.  37.  As  to  the  admissibility  of 
testimony  by  a  party  in  another 
case,  see  Cimiotti  Unhairing  Co.  v. 
Bowsky,  113  Fed.  698;  s.  c,  113 
Fed.  699. 

For    the    construction    of    an    ad- 
mission,   see    l^nion    Casualty    Co.    v. 


164S 


EVIDENCE 


[§  380 


documents  used  in  support  of  the  claim  of  any  party  to  a  suit, 
who  is  of  full  age,  whether  sworn  to  or  not,^  ma}'  be  used  as 
evidence  against  him  upon  the  hearing.  An  admission  in  a 
pleading  *  is  conclusive  and  cannot  be  Avithdrawn  or  modified 
by  the  party  who  makes  it  unless  the  proceeding  is  amended. 
The  filing  of  the  general  replication  did  not  waive  the  right 
to  rely  on  admissions  in  an  answer  or  plea.^  The  statement  by 
a  defendant  that  he  believes,  or  is  informed  and  believes,  that  a 
certain  fact  occurred,  is  treated  as  an  admission,  unless  coupled 
with  some  clause  to  prevent  its  being  so  considered.^  For  it  is 
a  rule  in  equity  that  M^hat  the  defendant  believes,  the  court 
will  believe  in  such  a  ease.'  This  rule,  however,  does  not  apply 
to  the  statement  of  a  defendant  that  he  believes  that  a  paper  was 
executed  as  charged  in  the  bill.^  Admissions  in  an  answer  made 
on  behalf  of  an  infant  in  such  a  case  cannot  be  used  against 
him,^  unless  he  adopts  the  answer  after  he  has  reached  his 
majority.^®  An  admission  of  one  defendant,  whether  in  his 
answer  or  otherwise,  is  not  evidence  against  any  of  his  co-de- 
fendants,^^ who   is  not  his  partner, ^^  or   who   does   not   derive 


Gray,  C.  C.  A.,  114  Ted.  422;  Gen- 
eral Ace.  Fire  &  L.  Assur.  .  Corp. 
V.  Pacific  Coast  C.  Co.,  C.  C.  A., 
247  FM.  416.  An  admission  that 
a  town  made  a  contract  admits  that 
it  had  power  to  make  it.  Planking 
ton  V,  Gray,  C.  C.  A.,  63  Fed.  415. 

2  Hyman  v.  "Wheeler,  29  Fed.  347 ; 
Tugman  v.  National  S.  S.  Co.,  30 
Fed.  802,  Nat.  S.  S.  Co.  v.  Tug- 
man,  143  U.  S.  28,  36  L.  ed.  63. 
An  affidavit  offered  by  a  party  in  a 
litigation  may  be  admitted  as  evi- 
dence against  him  upon  the  trial 
although  it  is  made  upon  informa- 
tion and  belief.  Chicago  &  N.  W. 
Ey.  Co.  V.  Ohle,  117  U.  S,  123; 
c'f.  Carey  v.  Williams,  79  Fed.  906. 

3  Smith  v.   Potter,  3  Wis.  432. 

4  Turner  Const.  Co.  v.  Union  Ter- 
minal Co.,  C.  C.  A.,  248  Fed.  120; 
Clark-Montana  R.  Co.  v.  Butte  & 
Superior  Copper  Co.,  233  Fed.  543. 
The   court  may  refuse  to  accept   an 


admission  in  a  eullusi\  e  case.  L. 
P.  Larson,  Jr.,  Co.  v.  Wm.  Wrigley, 
Jr.,  Co.,  C.  C.  A.,  253  Fed.  914. 

5  Cavender  v.  Cavender,  8  Fed.  641. 

6  Potter  v.  I'otter,  1  Ves.  Sen. 
274;   Hill  v.  Binney,  6  Ves.  738. 

V  Potter  V.  Potter,  1  Ves.  Sen. 
274;    Hill  v.  Binney,  6  Ves.  738. 

8  Potter  v.  Potter,  1  Ves.  Sen. 
274;  Davies  v.  Davies,  3  Deg.  &  Sni. 
698. 

9  Leigh  v.  Ward,  2  Vent.  72;  Ee- 
clcston  v.  Petty,  Carth.  79;  Savage 
v.  Carroll,  1  B.  &  B.  548,  553; 
Wrotesley  v.  Bendish,  3  P.  Wms. 
235.  See  Kingsbury  v.  Buckner, 
134  U.  S.  650,  680,  33  L.  ed.  1047, 
1059. 

lOHinde's  Ch.   Pr.  422. 

H  Leeds  v.  Marine  Ins.  Co.,  2 
Wheat.  380,  4  L.  ed.  266;  Clark's 
Ex'rs  v.  Van  Riemsdyk,  9  Cranch, 
153,  3  L.  ed.  688. 

12  Crosse    v.    Bedingfield,    12    Sim- 


;$:5.']1]  rONSTRUCTIVK    ADMISSIONS  1640 

title  from  liiiii.^^  An  admission  of  facts  by  a  demurrer  was  of 
no  effect  after  the  demurrer  liad  been  withdrawn  or  overruled.^* 
The  parties  to  a  suit  may,  l\v  an  agrement  signed  by  them- 
selves or  their  solicitors  or  made  in  open  court  by  their  coun- 
sel, admit  any  fact  as  proven,  or  allow  testimony  to  be  taken 
in  any  manner,  unless  they  thus  commit  an  act  repugnant  to 
public  policy,^^  but  not  as  to  a  question  of  law.^^  An  attorney 
of  record  has  implied  authority  to  make  such  a  stipulation. ^'^ 
Where  it  had  been  stipulated  that  certain  evidence  should  be 
treated  as  if  taken  and  afterwards  a  commission  .was  issued, 
which  it  was  claimed  was  inconsistent  with  the  stipulation,  it 
was  held  that  the  stipulated  evidenrc  coukl  only  l)e  expunged 
by  a  motion  before  the  hearing,  and  that  an  objection  to  it  at 
the  hearing  should  be  overruled. ^^  No  agi-eement  between  coun- 
sel will  ordinarily  be  enforced  unless  reduced  to  writing  or  made 
in  open  court. ^^  A  stipulation  made  by  a  party  who  is  repre- 
sented by  an  attorney  may  be  disregarded.'^" 

§331.  Constructive  admissions.  Constructive  admissions 
are  those  which  are  implied  by  law  from  a  party's  act.  Under 
the  former  practice  a  constructive  admission  was  made  by  the 
plaintiff  when  he  set  the  caus(^  down  foi-  a  hearing  upon  bill  and 

ons,     35;      Clark's     Ex'rs    v.     Van  Ey.  Co.,  243  U.  S.  281;   Bear  River 

Riemsdyk,  9  Craneli,  153,  156,  3  L.  Paper  &  Bag  Co.   v.  City  of  Petos- 

ed.  688,  689.  key,  C.   C.  A.,   241  Fed.  53. 

13  Field  v.  Holland,  6  Cranch,  8,  17  Christy  v.  Atchison,  T.  &  S.  F. 
3  1..  ed.  136;  Osborn  v.  Bank  of  U.  Ry.  Co.,  C.  C.  A.,  235  Fed.  255.  As 
S.,  9  Wheat.  738,  6  L.  ed.  204.  as  to  the  power  of  the  next  friend 

14  Anheuser-Busch  B.  Co.  Ass'n  v.  of  an  infant  to  stipulate,  see  Kings- 
Bond,  66  Fed.  653;  Illinois  Cent.  Imvy  v.  Buekner,  134  U.  S.  650, 
R.  Co.  V.  Norris,  C.  C.  A.,  245  Fed.  680,  33  L.  ed.  1047,  1059.  Supra. 
926.  But  see  Washington  &  C.  Ry.  SS  90,  106.  As  to  the  power  of  a 
Co.  V.  Mobile  &  O.  R.  Co.,  C.  C.  A.,  receiver  to  bind  the  estate  by  a 
255  Fed.   12.  stipulation,    or    admission,    see   Bos- 

15  Barker  v.  Dixie,  Reports  temp.  worth  v.  Terminal  R.  R.  Ass'n  of  St. 
Hardwicke,  252;  Owen  v.  Thomas,  Louis,  174  V.  S.  182,  43  L.  ed.  941: 
3  M.  &  K.  353,   357;    Nixon  v.   Al-  .^upra,  §311. 

bion  Ins.  Co.,  L.  R.  2  Ex.  38;   Ly-  18  Dickerson  v.  Mathoson,  50  Fed. 

man  v.  Kansas  C.  &  A.  R.  Co.,  101  73,  75. 

Fed.    636.      For    a    ease    where    the  19  Evans   v.   State   Nat.    Bank,   19 

court    refused    to    relieve    a    party  Fed.   676;    Lee  v.  Simpson,  42  Fed. 

from    a   stipulation,   see   McNeill   v.  434. 

Andes,  40  Fed.  45.  20  Bonifield  v.   Thorp    (D.  C^ .  71 

16  Swift  &  Co.  V.   Hookin.ir  Vallev  Fed.  924. 


1650 


EVIDENCE 


[§332 


answer  only ;  or  when,  in  his  bill,  he  did  not  expressly  waive  an 
answer  under  oath.  In  the  former  case,  he  admitted  for  the 
purposes  of  the  -suit  that  all  the  allegations  in  the  answer  re- 
sponsive to  his  bill  were  true ;  ^  in  the  latter,  that  all  were  true 
which  he  could  not  contradict  by  the  testimony  of  two  witnesses, 
or  of  a  single  witness  with  corroborating  circumstances.^  This 
rule  did  not  apply,  however,  unless  the  allegations  in  the  answer 
were  made  positively.^  Thus,  a  denial  according  to  the  defend- 
ant's recollection  and  belief  was  insufficient  for  this  purpose.* 
So  was  an  allegation  upon  information  and  belief.^  It  has  been 
said  that  this  rule  is  still  in  force,^  and  applies  to  denials  by  a 
defendant  whose  testimony  under  the  State  statute  was  incom- 
petent,''' but  does  not  apply  to  allegations  in  the  answer  which 
were  not  responsive.^ 

Constructive  admissions  are  also  made  by  a  default  in  plead- 
ing.^ Averments  in  a  bill  not  denied  in  an  answer  are  taken  as 
confessed  except  when  the  defendant  is  an  infant,  a  lunatic,  or 
other  person  non  compos  and  not  under  guardianship. ^° 

It  has  been  held  by  several  State  courts  that  where  a  judgment 
by  default  was  entered  against  a  partj^  such  judgment  was  com- 
petent as  an  admission  in  favor  of  a  third  person  in  another 
suit." 

§332.  Documentary  evidence  in  general.  Documentary  evi- 
dence consists  of  all  matters  not  contained  in  depositions  or 
affidavits,   which   are   submitted   to   the  court   in   the   shape   of 


§  331.  1  U.  S.  V.  Seott,  3  Woods, 
334;  Kennedy  v.  Baylor,  1  Wash. 
(Va.)   162. 

2  Clark's  Ex'rs  v.  Van  Eiemsdyk, 
9  Cianch,  153,  160,  3  L.  ed.  688, 
690;  Union  Bank  of  G.  v.  Geary,  5 
Pet.  99,  110,  8  L.  ed.  60,  64;  Seitz 
V.  Mitchell,  94  U.  S.  580,  582,  24 
L.  ed.  179,  180;  Vigel  v.  Hopp,  104 
IT.  S.  441.     See  §  153,  supra. 

3  Carpenter  v.  Providence  Wash- 
ington Ins.  Co.,  4  How.  185,  11  L. 
ed.  931;  Taylor  v.  Luther,  2  Sumn. 
228;   Berry  v.  Sawyer,  19  Fed.  286. 

4  Taylor  v.  Luther,   2   Sumn.  228. 

5  Berry   v.   Sawyer,   19  Fed.  286. 


BKirkpatriek  v.  M 'Bride,  202 
Fed.  144. 

7  Ibid. 

8  Ibid. 

9Eq.  Eule   16,  mpra,  §§171,  172. 

10  Eq.  Eule  30. 

11  Ellis  V.  Jameson,  17  Me.  235; 
Cragin  v.  Carleton,  21  Me.  492; 
Eisenlord  v.  Clum,  126  N.  Y.,  552, 
27  N.  E.  1024,  12  L.E.A.  §36;  Mil- 
lard V.  Adams,  1  Misc.  E.  431,  21 
N.  Y.  Supp.  424;  1  Greenleaf  on  Ev- 
idence, §  427a,  16  Cyc.  971.  Contra, 
Miller  v.  Journal  Company  (Mis- 
souri, December,  1912),  152  S.  W. 
40. 


§332] 


DUCUMENTARY  EVIDENCE 


1651 


written  documents.  Tlie  rules  reyulatin<r  its  admission  are  sub- 
stajitially  the  same  in  etjuity  as  at  eonnnon  law.^ 

In  e(|uity,  however,  uiuh'r  the  former  practice  such  docu- 
ments as  merely  rcfjuired  proof  of  their  execution  or  of  the 
liandwriting  contained  in  ihein  might  Ije  admitted  in  evidence 
at  the  hearing  of  the  cause  if  acromijanied  hy  an  affidavit  of 
these  facts,  provided  that  an  order,  which  was  granted  as  of 
course,  had  been  obtained  and  served  ui)on  the  opposite  side  at 
least  two  days  before.^  In  some  cases,  the  courts  then  per- 
mitted the  proof  of  sucli  documents  by  word  of  iiioulh  under 
oath  at  the  hearing,  when  their  existence  and  execution  was 
not  denied  by  the  answer.*'  There  seems  to  be  no  rea.son  now 
why  this  cannot  be  done  even  wlien  the  answer  denies  their 
execution.* 

Evidence  that  a  letter  properly  addressed,  postage  prepaid, 
was  placed  in  a  post  office  or  Government  letter  box,  estab- 
lishes a  presumption  that  it  was  received.^  The  denial  of  the 
party  to  who  it  was  addressed  that  he  received  such  a  letter 
is  not  conclusive  but  raises  a  question  of  fact  for  the  jury.^ 

Although  usually  a  judicial  record  is  not  admissible  as  evi- 
dence against  a  stranger,'  it  is  admissible  when  it  is  a  link  in 
the  chain  of  title  of  the  party  who  offers  it.^  The  best  evi- 
dence of  a  judgment  is  the  record  itself  or  a  copy  duly  certi- 
fied or  exandned  in  accordance  with  the  law,  unless  there  is 
proof  of  its  destruction.^     When  the  decree  contains  sufficient 


§332.  iLake  v.  Philips,  1  Ch. 
E.  110;  Stevens  v.  Cooper,  1  J.  Ch. 
(N.  Y.)  425,  429,  7  Am.  Dec.  499, 
and   eases   cited. 

2  Clare  v.  Wood,  1  Hare,  314. 
For  the  English  practice  of  admit- 
ting exhibits  upon  the  hearing,  see 
Wood  V.  Strickland,  2  Mer.  461. 
Quoted  with  ajiproval  in  Utah 
Const.  Co.  V.  Montana  R.  Co.,  145 
Fed.  981,  983. 

'  3  Wood  V.  Mann,  2  Sumn.  316; 
Nesmith  v.  Calvert,  1  W.  &  M.  34; 
Atty.  Gen.  v.  Pearson,  7  Sim.  290, 
303. 

4  Eq.  Rule  46,  §  352,  infra. 

6  Weniger  v.   Success  Mining  Co., 


C.  C.  A.,  227  Fed.  548;  General  Ace. 
Fire  &  L.  Assur.  Corp.  v.  Pacific 
Coast  C.  Co.,  C.  C.  A.,  247  Fed.  416; 
U.  S.  v.  Feldman,  C.  C.  A.,  247  Fed. 
482. 

6  Il.id,  N.  Y.  &  Phila.  C.  &  C.  Co. 
v.  Meyersdale  Coal  Co.,  C.  C.  A.,  217 
Fed.  747. 

7  See  supra,  §§186,  186a-187. 

8  Virginia  &  West  Virginia  Coal 
Co.  v.  Charles,  251  Fed.  83,  115. 

9  Kalloch  V.  Hoagland,  C.  C.  A., 
239  Fed.  252;  infra,  SS  333m,  333o, 
350a.  An  office  copy  of  a  irill  iiot 
under  seal  was  admitted  as  an  an- 
cient document.  Pineland  Club  v. 
Robert,  C.  C.  A.,  213  Fed.  545.     As 


1652  EVIDENCE  [§  332 

recitals,  it  is  admissible  without  the  remainder  of  the  roll.^" 

The  English  rule  was  that  in  a  suit  against  the  heir-at-law  to 
establish  the  validity  of  a  will,  all  the  witnesses  to  the  will  who 
were  alive,  sane,  and  within  the  jurisdiction  of  the  court,  must 
be  examined ;^^  and  the  testator's  sanity  must  be  proved  af- 
firmatively.^2  This  rule  did  not,  however,  apply  to  suits  to 
establish  the  trusts  of  a  will,  or  to  appoint  a  new  trustee,  or 
in  any  other  case  when  the  validity  of  the  will  was  not  directly  in 
issue.  ^^ 

Under  a  rule  of  court  requiring  the  parties  to  an  action  for 
the  recovery  of  real  property  to  tile  copies  of  their  abstracts  of 
title,  in  order  to  enable  the  court  to  learn  whether  they  trace 
their  title  from  a  common  source,  and,  if  so,  to  limit  the  proofs 
to  subsequent  conveyances  and  transactions;  the  fact  that  an 
entry  in  an  abstract  is  admitted  in  evidence  as  showing  a  source 
of  title  common  to  both  parties  does  not  I'ender  the  subsequent 
entries  admissilile  as  evidence  in  favor  of  the  proponent  of 
such  abstract.^* 

It  has  been  held  that  entries  in  the  books  of  a  corporation 
showing  a  transfer  of  stock  to  a  person  and  payment  by  him  of 
instalments  of  the  subscription  tliereto  are  not  prima  facie  evi- 
dence that  he  is  a  stockholder.^^     In  a  criminal  prosecution  for 

to   docket  entries,  see  Easkin   v.   U.  Pineland   Club   v.  Eobert,  C.   C.   A., 

S.,  C.   C.   A.,  209  Fed.   740.     As  to  213  Fed.  545 ;  Virginia  &  West  Vir- 

transcripts    of    stenograpiiers'    min-  ginia  Coal  Co.   v.  Charles,  251  Fed. 

utes,  see  Raskin  v.  U.  S.,  C.  C.  A.,  33. 

209  Fed.  740 ;  Lueders  v.  U.  S.,  C.  15  Carey  v.  Williams,  C.  C.  A.,  79 
C.  A.,  210  Fed.  419;  N.  Y.  Life  Ins.  p^^,^|  ggg '  g^^t  see  Turubull  v.  Pay- 
Co.  V.  Neasham,  C.  C.  A.,  250  Fed.  ^^^^^   95   ^^     g    ^^g^   24   L.   ed.   437; 

''^^-  Liggett  V.  Glenn,   C.  C.  A.,  51  Fed. 

10  Virginia  &  West  Virginia  Coal        .,gj_     ^^^^  ^^^^.^^  -^  ^j^^  ^^^1^^  ^^  ^ 

Co.  V.  Charles,  C.  C.  A.,  251  Fed.  83.  , .  .     x        • -, 

'  '  corporation   are   competent   evidence 


against    its    officers    and    employees, 
upon  proof   of  such  connection  and 


llBootle     V.     Blundell,     19     Ves. 
494b,  505. 

12  Harris  v.  Ingledew,  3  P.  Wms.  ...  .  ,  .       -j. 

o    A4.1     m  tamiharity    therewith   as   to   justify 
91 ;   Wallis  v.  Hodgeson,  2  Atk.  56.  •'  j         j 

ISBootle     V.     Blundell,     19     Ves.  an  inference  of  actual  acquaintance 

494b,   505;    Concannon    v.   Cruise,   2  with  their  contents.     Foster  v.  U.  S., 

Molloy,  332.  ^-  ^-  ^•'  ^'^^  ^^^^-  ^^^-     Where  the 

14  Davis  V.  Jennie  Bros.,  C.  C.  A.,  leceiver  of  a  State  court  refused  to 

152  Fed.  696.     As  to  ancient  deeds,  o^ey  a  subpcena  for  the  production 

see    Houston    Oil    Co.    of    Texas    v.  of  certain  books,  secondary  evidence 

Goodrich,   C.    C.   A.,    213   Fed.    136;  of     their     contents     was     admitted. 


§332j 


DOCUMENTAKY  EVIDENCE 


1653 


defrauding  the  United  States,  it  was  held:  that  entries  of  tlie 
weights  made  by  city  weighers,  wliirh  were  recorded  in  books 
by  checkers  employed  by  a  corporation  in  whicli  the  defeiuhiiit 
was  employed,  were  achnissible  when  they  were  so  far  as  i)os- 
sible  authenticated  by  the  persons  who  made  tlie  entries,  and  it 
was  shown  that  statements  of  the  weights  sliowing  a  discrepancy 
between  these  amounts  and  those  at  wliicli  the  same  merchandise 
was  entered  by  the  Government  had  been  brought  to  the  atten- 
tion of  the  defendants ;  ^^  and  that  dock  books  kept  by  assistant 
weighers  in  the  custom  service  were  admissible.^''  The  rub- 
which  governed  the  admissibility  of  entries  in  books,  made  Iiy 
private  parties,  "with  some  exceptions,  i-('(|uires  for  the  iidmis- 
sibility  of  the  entries,  not  nici-cly  that  they  should  be  contem- 
poraneous witli  the  facts  to  whieli  they  relate,  but  that  they 
sluill  be  made  by  parties  having  knowledge  of  the  fai-ts.  n\\d  Ix' 
corroborated  by  their  testimony  if  living  and  jiccessiltic,  oi-  by 
]n-oof  of  their  liandwriting.  if  dead,  or  insane,  or  hcxoiul  ihc 
jurisdiction  of  the  court.  "^* 


Foster  v.   U.  S.,  C.  C.  A.,  178  Fed. 
165. 

16Heike  v.  U.  S.,  C.  C.  A.,  192 
Fed.  83,  aff'd  227  U.  S.  131,  144, 
57  L.  ed.  450;  Parker  v.  U.  S.,  C. 
C.   A.,   203   Fed.   950. 

17  Ibid. 

18  Field,  J.,  ill  Chaffee  &  Co.  v. 
U.  S.,  18  Wall.  516,  541,  21  L.  ed. 
908,  612.  See  Carlin  v.  Conlon,  106 
App.  Div.  (N.  Y.)  204.  See  Bates 
V  Breble,  151  U.  S.  149,  155,  14 
Sup.  Ct.  227,  38  L.  ed.  106,  criticized 
in  Wigmore  on  Evidence,  sect.  754; 
Carlin  v.  Conlon,  106  App.  Div.  N. 
Y.  204,  in  whieli  the  author  was 
counsel;  hut  see  Mississippi  River 
Logging  Co.  V.  Robson,  C.  C.  A.,  69 
Fed.  773;  Insurance  Co.  v.  Weides,  9 
Wall.  677,  19  L.  ed.  810,  s.  C,  14 
Wall.  375,  20  L.  ed.  894;  Raburn  v. 
Queen  City  Savings  Bank  &  Tr.  Co., 
C.  C.  A.,  171  Fed.  609;  Rutan  v. 
Johnson  &  Johnson,  231  Fed.  369, 
:!78-380,  aff'd  C.  C.  A.,  231  Fed.  369, 

Fed.  Prac.  Vol.  11—34 


376;  Moliue  Flow  Co.  v.  Rock  Island 
Plow  Co.,  C.  C.  A.,  212  Fed.  727; 
Pineland  Club  v.  Robert,  C.  C.  A., 
213  Fed.  545.  When  an  account  in 
one  of  a  person 's  books  is  received 
as  a  declaration  against  his  interest 
and  it  is  proved  that  it  is  incomplete, 
accounts  in  otlier  books  kept  by  him 
should  Ijc  received  if  they  tend  to 
replace  or  correct  it,  although  the 
latter  are  with  individuals  and  the 
former  with  the  firm  of  which  they 
are  members.  Sheatz  v.  Markley, 
C.  C.  A.,  249  Fed.  315.  As  to 
Ledger  Sheels,  Watson  Nav.  Co.  v. 
United  Engineering  Works,  C.  C.  A., 
213  Fed.  293;  Spaiiu  v.  L'nited 
States,  C.  C.  A.,  252  Fed.  517.  As 
to  Inventories,  Thrush  v.  Fullhart, 
C.  C.  A.,  210  Fed.  1 ;  Rutan  v.  John- 
son &  Johnson,  231  Fed.  369,  379; 
\'irginia  &  West  Virginia  Coal  Co.  v. 
Charles,  251  Fed.  S3;  Insurance  Co. 
V.  Weides,  14  Wall.  375,  380.  As  to 
iime   cards,   Wisconsin    Steel   Co.    v. 


1654 


EVIDENCE 


[§332 


A  paper  slioiild  be  tendered  to  the  counsel  for  the  adversary 
after  its  identification,  before  or  upon  its  offer  in  evidence.^* 
Tt  has  been  held  that  when  a  party  inspects  a  document  which 
he  has  compelled  his  adversary  to  produce  under  a  subpoena 
duces  tecum,  and  then  fails  to  offer  it  in  evidence,  his  adversary 
may  put  it  in. 2° 

Where  a  book  or  document  contains  relevant  and  irrelevant 
matters,  the  matter  that  is  irrelevant  should  be  concealed  and 
sealed  before  it  is  submitted  to  the  jury.^^  Where  the  relevant 
parts  of  a  document  were  of  little  evidential  value  and  were 
inseparably  mixed  with  matters  inadmissible  and  highly  preju- 
dicial the  materiality  was  merged  in  the  prejudice  and  the 
document  was  not  received.^^  Upon  hearsay  evidence  of  the 
destruction  of  a  public  record,  secondary  evidence  of  its  con- 
tents was  admitted.^^ 

An  objection  to  the  admission  of  a  copy  is  cured  by  the  sub- 
sequent introduction  of  the  original.^* 

An  objection  that  a  document  admitted  in  evidence  is  not 
restricted  as  to  probative  form  by  the  court  is  waived  unless 
made  at  the  time  it  is  admitted. ^^ 

It  has  been  held  that  a  general  offer  of  documentary  evi- 
dence, without  any  statement  of  its  purpose,  is  insufficient  to 
support  an  exception  to  the  exclusion  of  it.^^     It  has  been  said 


Maryland  Steel  Co.,  C.  C.  A.,  203 
Fed.  403;  Breitmayer  v.  U.  S.,  C. 
C.  A.,  249  Fed.  929;  One  Locomotive 
Co.  V.  Hawl)leau,  Mass.,  105  N.  E. 
371.  Diaries,  De  Witt  v.  Skinner, 
C.  C.  A.,  232  Fed.  443.  As  to  Bap- 
tismal Eeco-rds,  Plielan  v.  U.  S.,  C. 
C.  A.,  249  Fed.  43.  As  to  oral  evi- 
dence by  an  interpreter  as  to  ac- 
count books  in  a  foreign  language, 
see  George  v.  Meyers,  C.  C.  A.,  241 
Fed.  653. 

lOPrdjun  v.  U.  S.,  C.  C.  A.,  237 
Fed.  799.  For  a  case  vs^here  it  was 
held  no  error  to  refuse  a  request  by 
counsel  that  a  translation  be  read  or 
shown  to  him  before  it  was  read  to 
the  jury,  see  Ibid. 

20  Edison  El.  L.  Co.  v.  U.  S.  El.  L. 


Co.,  45  Fed.  55.     But  see  Treadwell 
V.  Lennig,  50  Fed.  872. 

21  Bates  V.  Breble,  151  U.  S.  149, 
158,  14  Sup.  Ct.  277,  38  L.  ed.  106. 

22  Harrison  v.  U.  S.,  C.  C.  A.,  200 
Fed.  662,  665. 

23  Denver  &  E.  G.  E.  E.  Co.  v. 
Ariz.  &  Col.  E.  E.  Co.,  233  U.  S. 
601 ;  Norma  Mining  Co.  v.  MacKay, 
C.  C.  A.,  241  Fed.  640;  Virginia  & 
West  Virginia  Coal  Co.  v.  Charles, 
C.   C.   A.,   251   Fed.   83. 

24  Lauderdale  County  v.  Kittel,  C. 
C.  A.,  229  Fed.  593. 

26  Lauderdale  County  v.  Kittel,  C. 
C.  A.,  229  Fed.  593. 

26  Canada-Atlantic  &  Plant  S.  S. 
Co.  V.  Flanders,  C.  C.  A.,  145  Fed. 
875. 


§  332a]  PROOF  OP  handwriting  1655 


s 


that  a  party  who  has  fraudulently  altered  documents  which  he 
offers  in  evidence  is  thereby  debaiTcd  from  all  relief  in  eciuity.^''' 

§  332a.  Proof  of  handwriting,  in  the  absence  of  a  statute, 
as  a  general  rule,  tiie  genuineness  of  handwriting  cannot  be 
determined  by  comparing  it  with  any  other  numuscript  of  tlie 
party  except  other  papers  admitted  to  be  in  his  handwriting, 
which  are  in  evidence  for  some  other  purpose. ^ 

The  act  of  February  26,  1913,  provides,  "In  any  proceeding 
before  a  court  or  judicial  officer  of  tlie  United  States  where 
the  genuineness  of  the  handwriting  of  any  person  nuiy  be  in- 
volved, any  admitted  or  proved  handwriting  of  such  person 
shall  be  competent  evidence  as  a  basis  for  comparison  by  wit- 
nesses, or  by  the  jury,  or  court,  or  officer  conducting  such  pro- 
ceeding, to  prove,  or  disprove  such  genuineness."  ^  This 
statute  applies  to  criminal  as  well  as  to  civil  eases. ^ 

Proof  of  the  genuineness  of  the  handwriting  admitted  as  a 
basis  of  comparison  may  be  made  either  directly  or  by  infer- 
ence.* A  notebook  containing  entries  of  a  personal  nature  which 
was  found  in  the  possession  of  the  defendant  was  admitted  for 
the  purpose  although  he  denied  that  the  book  was  his.5  ^ 
copy  of  a  letter,  the  address  and  signature  being  in  initials 
only  found  in  the  office  of  a  corporation  in  which  a  party  was 
an  officer  but  not  in  his  possession  was  excluded.^  A  man  who 
has  only  once  seen  another  write  can  testify  to  the  latter 's 
signature  and  handwriting.''' 

It  has  been  held  that  a  party  cannot  introduce  in  his  own  be- 
half letters  written  subsequent  to  one  offered  by  his  opponent, 
under  the  rule  that,  where  part  of  a  letter  or  document  or  con- 
versation is  received,  the  wbole  may  come  in  for  purposes  of 
explanation  which  rule  has  been  extended  to  admit  prior  letters 
referred  to  in  the  letter  admitted.* 

27Horton  v.  MeKce,  73  Fed.  556.  3  Dean    v.    U.    S.,    C.    C.    A.,    24(5 

§  :5:52a.     1  Hickory  v.  U.  S.,  151  U.  Fed.   5G8. 

S.  30:},  38  L.  ed.  170.     See  Moore  v.  4  Ibid. 

U.  S.,  91  U.  S.  271,  23  L.  ed.  346;  6  Ibid. 

Sogers  V.  Eittor,  12  Willi.  317,  20  L.  6  Myrick    v.    Unito.l    States,    219 

ed.   417.  I^cil-  1- 

2  The    Act    of  Feb.    26,    1913,    37  7  Murray   v.   United   States,   C.   C. 

St.    at    L.    68:5,  ch.    79,    Conip.    St.        A.,   247   Fed.   874. 
s  ]47i_  8  Varley    Duplex    Ma^Miet    Co.    v. 


1650  EVIDENCE  [§  332h 

Before  the  enactment,  a  Federal  court  followed  an  analogous 
statute  of  the  State.^ 

§332b.  Proof  of  messages  by  telephone.  The  courts  ordi- 
narily require  that  messages  by  telephone  be  proved  by  a  wit- 
ness, who  has  heard  them  sent  at  either  end  and  then  recog- 
nized the  speaker.!  But  some  authorities  argue  for  the  more 
liberal  rule,  that  business  usages  should  be  recognized  and  it 
should  be  presumed  that  the  speaker  is  the  person  whom  he  rep- 
resents himself  to  be.^ 

When  a  telephone  is  sent  through  another,  his  statements  over 
the  wire,  like  those  of  any  other  agent  are  evidence  against  the 
person  whom  he  represents. ^  In  an  action  for  criminal  con- 
versation where  the  wife  testified  to  sending  telephone  message 
to  defendant  to  meet  her,  it  was  held  competent  for  the  hus- 
band to  testify  to  the  contents  of  the  message  handed  to  him 
by  mistake.*  The  better  opinion  seems  to  be  that  upon  proof 
that  a  witness  has  called  up  a  party  at  the  number  given  by 
ihe  telephone  company  he  can  testify  to  the  statements  made 
liy  the  person  who  answered  him.^ 

§332c.  Proof  of  telegrams.  Telegrams  from  a  postmaster 
to  the  Postmaster-General  are  competent  evidence  of  the  facts 
therein  stated  presumed  to  be  within  the  sender's  official 
knowledge.! 

Telegrams  do  not  prove  themselves,  and  are  ordinarily  in- 
admissible without  evidence  that  they  were  sent  by  the  persons 
whose  names  are  signed  to  the  copies  delivered.'^ 

A  telegram  purporting  to  be  signed  by  a  cabinet  officer  of 
the  United  States  ^  and  during  the  Great  War  cablegrams  pur- 

Ostheimer,   C.   C.  A.,   159   Fed.   655.  4  Ibid. 

9  Green    v.    Tevwilliger,    56    Fed.  5  Globe  Printing  Co.   v.   Stahl,   21] 

384,  393.  Mo.  App.  451,  458. 

§  332b.     1  People   v.   McCane,   143  §  332e.     1  U.  S.  v.  McCoy,  193  U. 

N.   Y.   455;    Wigmore   on   Evidence,  S.  593,  48  L.   ed.   805. 

§§  669,  2155,  and  cases  cited.  2  Drexel  v.  True,  C.  C.  A.,  74  Fed. 

2  See  Wigmore  Evidence,  §§  669,  12.  See  Dunbar  v.  U.  S.,  156  IT.  S. 
2155;  Wolfe  v.  Missouri  Pac.  Ry.  185,  195,  196,  39  L.  ed.  390,  394; 
Co.,  97  Mo.  473,  481;  Godiar  v.  Na-  s.  c,  60  Fed.  75. 

tional     Bank,     225     111.     572,     574;  3  Perovitz  v.  Perry,  C.  C.  A.,  167 

Bencli   &   Bar,   Jan.   1908  and  cases       Fed.  789   (tlie  Attorney  General), 
cited. 

3  Harper  v.  Harper,  C.  C.  A.,  252 
Fed.  39. 


§33:]  I         H()(JKS    AM)    TAl-KKS    I\    KXKCITIVK    DKPARTMF.NTS  lli')J 


porting;  to  bo  sifiiied  by  officers  of  Eui-opeaii  •jovenimciits  *  wore 
admitted   wilhoiit   further   proof  and    in   ihc  aliseiiee  c.f  eontra- 

diction. 

Where  the  governmenl  soiijrht  to  prove  a  telej?rain  allefred 
to  have  been  sent  by  aecused  as  an  ineriminating  circumstance, 
the  message  filed  at  the  sending  offii-e  was  lield  to  be  tiie  original, 
and  proof  of  its  loss  or  destruction  was  required  before  second- 
ary evidence  of  its  contents  was  admissilile.^ 

§333.  Evidence  of  books  and  papers  in  the  Executive  De- 
partments—In general.  The  Revised  Statutes  of  tlie  United 
States  provide  as  follows  eoncorning  the  admission  of  docu- 
mentary evidence:  -'Copies  of  any  books,  records,  papers,  or 
documents  in  any  of  the  Executive  Departments,  authenticated 
under  the  seals  of  siich  Depai'tnuMits,  respectively,  shall  be  ad- 
mitted  in   evidence   e(iually   with   the   originals   thereof."  ^ 

Such  are  documents  used  as  evidence  in  a  couil  mai'tuil  m 
the  Navy,  which  have  been  filed  in  the  Navy  Department  in 
pursuance  of  the  statute.^  Accounts  and  papers  filed  in  the 
office  of  the  Quartormastor-Genoral,  and  applirations  fci'  pen- 
sions, may  thus  be  proved.' 

The  original  canceled  register  of  a  lost  vessel  has  hcon  lirld 
to  come  within  the  statute.* 

A  letter  from  the  l^resident's  secretary  to  a  senator  stating 

a  commutation  of  a  sentence,  is  not  evidence  thereof.     It  must 

be  proved  by  a  warrant  of  commutation  or  a  certified  co])y.^ 

The  mode  of  authentication  prescribed   by  the  statute  must 

be    strictlv    followed.^      The    words,    '-papoi-s    or    documents." 


4  Agency  of  Canadian  Car  &  F. 
Co.  V.  American  Can  Co.,  25;i  Feci. 
152. 

5  Montgomery  v.  F.  S.,  C.  C.  A., 
219  Fed.  162. 

§333.  lU.  S.  R.  S.,  §882.  See 
Barney  v.  Schneider,  9  Wall.  248, 
19  L.  ed.  648;  Chadwick  v.  U.  S., 
3  Fed.  750;  Block  v.  U.  S.,  7  Ct. 
CI.  406;  U.  S.  V.  Liddle,  2  Wash. 
205;  U.  S.  V.  Benner,  1  Bald.  234; 
White  V.  St.  Guirons,  Minor  (Ala.), 
331,  12  Am.  Doc.  56;  Catlett  v.  Pac. 
Ins.  Co.,  1  Paine,  594;  Bleecker  v. 
Bond,    3   Wash.    529;    Thompson    v. 


Smith,  2  Hoiul,  :i2ii;  Wctmorc  v.  I'. 
S.,  1(1  Pet.  647,  !)  L.  od.  567;  Wick- 
liffc  V.  Hill,  3  Litt.  (Ky.)  3:Ui. 

2  Cohii  V.  V.  S..  r.  C.  A.,  258  Fed. 
355. 

3  Thoiii]  soil  v.  Smith,  2  Bond,  :'.20. 
See  Crowell  v.  Hopkinson,  45  X. 
H.  9. 

4  Catlett  V.  Pacific  Ins.  Co.,  1 
Paine,  612.  See  Bleecker  v.  Bond. 
3   Wash.   29. 

bl<:.r  pnrtf  Harlan,   180   Fed.   119. 

6  Smith  V.  r.  S.,  5  Pet.  291,  300. 
S  I.,  ed.  i;Ui.  133;  Block  v.  IT.  S.. 
7   Ct.   (M.    406;    Bleecker   v.   Bond.   .". 


1658 


EVIDENCE 


[§333 


mean  only  such  as  are  made  by  an  officer  and  an  agent  of  the 
government  in  the  discharge  of  his  official  duty;  and  copies  of 
such  are  not  competent  evidence  unless  it  was  the  duty  of  the 
officer  to  file  the  originals.'  In  cases  described  in  section  886 
of  the  Revised  Statutes,  proof  must  be  given  in  accordance 
with  the  provisions  of  that  section.*  The  original  papers  may 
also  be  put  in  evidence.^  In  cases  where  the  government  is  a 
party,  duly  authenticated  copies  should  be  procured  and  the 
fees  therefor  paid,  and  a  mere  notice  to  produce  the  original 
is  not  sufficient.!®  Papers  which  were  a  part  of  the  archives  of 
the  late  so-called  "Confederate  Government"  must  be  proved 
by  proper  testimony. 

A  certified  copy  of  a  record,  which  is  made  competent  evi- 
dence by  statute,  establishes  a  presumption  that  the  original 
was  in  tlie  pul)lic  office  when  the  copy  was  made,  and  is  not 
overcome  by  testimony  that  seven  years  later  the  original  can- 
not be  found" there."  If  the  officer  having  charge  of  the  paper 
certifies  that  the  copy  is  correct,  and  the  head  of  a  department 
certifies  to  the  officer's  character,  the  paper  is  sufficiently  au- 
thenticated, provided  that  the  seal  from  the  department  is  at- 
tached thereto.12  In  the  case  of  documents  filed  in  the  Treas- 
ury Department,  an  authentication  under  the  seal  of  that  de- 
partment and  the  signature  of  the  -Secretary  and  the  Assistant 
Secretary  of  the  Treasury  is  sufficient.i^  A  certified  copy  of 
a  ship's  manifest,  delivered  to  the  inspection  officers  as  a  report 
under  26  St.  at  L.  1085,  and  preserved  in  the  immigration  office, 
containing  a  list  of  the  alien  immigrants  on  board,  with  their 
names,  nationality,  last  residence  and  destination,  is  competent 
evidence  concerning  the  identity  of  an  individual.^*     A  pass- 


Wash.  531;  U.  S.  V.  Harrill,  MeAll. 
243;  Wiekliffe  v.  Hill,  3  Litt.  (Ky.) 
330.     ' 

7  Block  V.  U.  S.,  7  Ct.  CI.  406. 

8  Chadwicke  v.  U.  S.,  3  Fed.  750 ; 
White  V.  St.  Guirons,  Minor  (Ala.), 
331;  U.   S.  V.  Humason,  8  Fed.   71. 

9  Bruce  v.  Manchester  &  K.  R. 
Co.,  19  Fed.   342. 

10  Barney  v.  Schneider,  9  Wall. 
248,  19  L.  ed.  648;  Chadwick  v.  U. 
S.,  3   Fed.   750;    U.   S.  v.   Scott,  25 


Fed.  470;  TJ.  S.  v.  Banner,  1  Bald. 
234;  U.  S.  V.  Perchman,  7  Pet.  51, 
8  L.  ed.  604;  Winn  v.  Patterson,  9 
Pet.  663,  9  L.  ed.  266;  James  v. 
Gordon,   1   Wash.   333. 

11 U.  S.  V.  Brelin,  C.  C.  A.,  166 
Fed.  104;  Phelan  v.  U.  S.,  C.  C.  A., 
249   Fed.   43. 

12  Ballew  V.  U.  S.,  160  U.  S.  187, 
40  L.  ed.  388. 

13  Chadwicke  v.  U.  S.,  3  Fed.  750. 
HMcInerney   v.   U.   S.,    C.    C.   A., 


§  333a]  RECORDS  ix  the  treasury  department  UioH 

port  issued  by  the  Secretary  of  State  ^vas  held  not  to  be  evi- 
dence of  the  citizenship  of  the  person  wlio  received  it."  A 
certificate  of  a  State  census  enumerator  for  the  information 
of  the  governor,  compilations  in  the  report  of  the  State  au- 
ditor and  a  certificate  to  the  auditor  by  the  county  clerk,  are 
not  competent  evidence.^® 

"The  only  evidence  of  a  refusal  to  accept,  or  of  a  resifrnation 
of  the  office'  of  President  or  Vice-F'resident,  shall  be  an  instru- 
ment in  writing,  declaring  the  same,  and  subscribed  by  the 
person  refusing  to  accept  or  resigning,  as  the  case  may  be,  and 
delivered  inio  tlic  ot^ce  of  the  Secretary  of  State."  ^^ 

§  333a.  Evidence  of  books  and  papers  in  the  Treasury  De- 
partment. In  accordance  Avith  the  Revised  Statutes  copies  of 
books  records,  papers  and  documents  in  the  Department  of  the 
Treasury  authenticated  under  the  seal  of  the  Department  and 
admitted  in  evidence,  e.iually  Avith  the  originals.^  Printed 
books,  showing  the  miscellaneous  receipts  and  disbursements  of 
the  Government  printed  from  the  written  records  of  the  De- 
partment, and  used  as  original  records  in  the  daily  business 
of  the  Department  and  produced  from  its  custody  are  com- 
petent evidence  without  authentication  by  the  seal.^  They  may 
be  admitted  in  evidence  to  prove  both  payment  and  non-pay- 

ment. 

"Copies  of  any  documents,  records,  books  or  papers  in  the 
office  of  the  Solicitor  of  the  Treasury,  certified  by  him  under  the 
seal  of  his  olTfice,  or,  when  his  office  is  vacated,  by  the  officer  act- 
ing as  Solicitor  for  the  time,  shall  be  evidence  equally  with  the 

originals. "  *  ^   i  i 

"Every  certificate,  assignment,  and  conveyance  executed  by 
the  Comptroller  of  the  Currency,  in  pursuance  of  law,  and 
sealed  with  his  seal  of  office,  shall  be  received  in  evidence  m  aU 

143  Fed.  729.    But  see  U.  S.  v.  Wil-  §  333a.     IT.     S.     R.     S.,     §882, 

son,  60  Fed.   890,   896.  ^^0,  §  333. 

1    Edsell   V.   D.    Charlie   Mark,   C.  2  Chesapeake    &    Delaware    Canal 

C.  A     179  Fed.  292.  Co.  v.  U.  S.,  250  U.  S    124,  affirnung 


16  Coffin  V.  Bo"ard  of  Commission-       C.  C.  A.,  240  Fed.  903 
ers.  of    Kearney    County,    114    Fed.  3  Ibid 

518. 

17  U.  S.  R.  S.  §  151,  Pierce's  Fed 
Code  3424. 


4U.   S.   R.   S.,   §883. 


1660  EVIDENCE  [§  333a 

places  and  courts ;  and  all  copies  of  papers  in  his  office  certified 
by  him  and  authenticated  by  the  said  seal  shall  in  all  cases  be 
evidence  equally  with  the  originals.  An  impression  of  such 
seal  directly  on  the  paper  shall  be  as  valid  as  if  made  on  wax 
or  wafer. ' '  ^ 

"Copies  of  the  organization  certificate  of  any  national  bank- 
ing association,  duly  certified  by  the  Comptroller  of  the  Cur- 
rency, and  authenticated  by  his  seal  of  office,  shall  be  evidence 
in  all  courts  and  places  within  the  jurisdiction  of  the  United 
States  of  the  existence  of  the  association,  and  of  every  matter 
Avhieh  could  be  proved  by  the  production  of  the  original  certi- 
ficate. ' '  ^  Such  a  certificate  is  sufficient  in  the  absence  of  any 
evidence  that  there  is  any  other  national  bank  of  the  same  name 
at  the  same  place.''' 

"When  suit  is  brought  iii  any  case  of  delinquency  of  a  revenue 
officer,  or  other  person  accountable  for  public  money,  a  transcript 
from  the  books  and  proceedings  of  the  Treasury  Department 
certified  by  the"  Secretary  and  Assistant  Secretary  "and  au- 
thenticated under  the  seal  of  the  Department,  or,  when  the  suit 
involves  the  accounts  of  the  War  or  Navy  Departments,  certified 
b}^  the  Auditors  respectively  charged  with  the  examination 
of  those  accounts  and  authenticated  under  the  seal  of  the 
Treasury  Department  shall  be  admitted  as  evidence,  and  the 
court  trying  the  cause  shall  be  authorized  to  grant  judgment 
and  award  execution  accordingly.  And  all  copies  of  bonds, 
contracts,  or  other  papers  relating  to,  or  connected  with,  the 
settlement  of  any  account  between  the  United  States  and  an 
individual,  when  certified"  by  the  Register  or  by  such  Auditor 
as  the  case  may  be  "to  be  true  copies  of  the  original  on  file, 
and  authenticated  under  the  seal  of  the  Department,  may  be 
annexed  to  such  transcripts,  and  shall  have  equal  validity,  and 
be  entitled  to  the  same  degree  of  credit  which  would  be  due 
to  the  original  papers  if  produced  and  authenticated  in  court : 
provided,  that  where  suit  is  brought  upon  a  bond  or  other 
sealed  instrument,  and  the  defendant  pleads  '  non  est  factum/ 
01-  makes  his  motion  to  the  court,  verifying  such  plea  or  motion 

5U.   S.  E.   S.,   §884.  Mass.  521;  Merchants '  Nat.  Bank  v. 

6U.    S.   R.    S.,   §885;    First   Nat.  Glendon    Co.,    120    Mass.    97. 

Bank  v.  Kidd,  20  Minn.  234 ;  Wash-  ?  Washington    Co.    Nat.    Bank    v. 

ington    Co.    Nat.    Bank   v.    Lee,    112  Lee,   112   Mass.   521. 


§  333a]  RECORDS  IN  THE  TRF.AsrUV   |)1.1\I{1.\11.\T  KiOl 

by  Ills  oath,  tlic  court  may  take  tlie  same  iuti)  coiisicU'ratioii, 
and,  if  it  appears,  to  lie  necessary  for  tin-  attainnifnt  of  justice, 
may  require  the  production  of  tlie  original  bond,  contract,  or 
other  paper  specified  in  such  affidavit."  ^  This  section  applies 
to  sureties  as  well  as  to  principals.^  It  applies  only  to  suits 
against  persons  accountable  for  public  moneys  as  such."  It 
does  not  apply  to  an  action  on  the  official  bond  of  a  sujx'riii- 
tendent  of  the  mint  for  failure  to  keej)  safely  property  in- 
trusted to  his  care.^^ 

"There  are  two  kinds  of  transcripts  which  the  statute  au- 
thorizes the  proper  officer  to  certify.  First,  a  transcripl  from 
the  'books  and  proceedings  of  the  treasury;'  and  second,  'copies 
of  bonds,  contracts,  and  other  papers,  etc.,  which  reuuiin  on 
file,  and  relate  to  the  settlement.'  Under  the  first  head  are 
included  charges  of  moneys  advanced  or  paid  by  the  depart- 
ment to  the  agent,  and  an  entry  of  items  suspended,  rejected, 
or  placed  to  his  credit.  These  all  appear  upon  the  books 
of  the  department.  The  decision  made  on  the  vouchers  ex- 
hibited, and  the  statement  of  the  amount,  constitute,  in  part. 
the  proceedings  of  the  treasury.  Under  the  second  head  copies 
of  papers  which  remain  on  file,  and  which  have  a  relation  to  the 
settlement,  may  be  certified.  Tn  this  case  it  is  essential  that 
the  officer  certify  that  the  transcripts  'are  true  copies  of  the 
originals  which  remain  on  file.'  "  ^^  "An  account  stated  at  the 
Treasury  Department  which  does  not  arise  in  the  ordinary 
mode  of  doing  business  in  that  department  can  derive  no  ad- 
ditional validity  from  being  certified  under  the  act  of  Congress. 
Such  a  statement  can  only  be  regarded  as  establishing  items  for 
moneys  disbursed  through  the  ordinary  channels  of  the  de- 
partment, where  the  transactions  are  shown  l)y  its  books.     In 

8U.   S.   R.   S.,   §886,  as  amended  10  1'.  S-  v.  Eadowitz,  8  Rep.  268. 

by  28  Stat.  764,  809;  Bechtel  v.  U.  See  U.  S.  v.  Griffitli,  2  Craiieh,  C.  C. 

S.,  101  U.  S.  597,  25  L.  ed.  1019;  U.  666. 

S.  V.  Bell,  111  U.  S.  477,  28  L.  ed.  H  T.  S.  v.  Bosbyshell   (D.  C),  73 

477;  U.  S.  V.  Stone,  106  U.  S.  525,  Ft'd.   61(3. 

27  L.  ed.   168;   Moses  v.  U.  S.,  166  12  Smith  v.  U.  S.,  5  Pet.  291.  800, 

V.  S.  571,  598,  41  L.  ed.  1119,  1129;  801,  8  L.  ed.  180,  188,  per  Mr.  Jus- 

U.  S.  V.  Pierson,  C.  C.  A.,  145  Fed.  ^i^-^'  M 'Lean. 
814. 

9U.   S.  V.  Gausseu.   fO  Wall.    198, 
22  L.  ed.  41. 


1662 


EVIDENCE 


[§  333a 


these  cases,  the  officers  may  well  certify,  for  they  must  have 
official  knowledge  of  the  facts  stated.  But  where  moneys  come 
in  to  the  hands  of  an  individual,  as  in  the  ease  under  consider- 
ation, the  books  of  the  treasury  do  not  exhibit  the  facts,  nor 
can  they  be  officially  known  to  the  officers  of  the  department. 
In  this  ease,  therefore,  the  claim  must  be  established  not  by 
the  treasury  statement,  but  by  the  evidence  on  which  that  state- 
ment was  made. "  ^^  A  transcript  from  the  books  may  be  evi- 
dence of  charges  for  moneys  advanced  or  paid  by  the  depart- 
ment to  the  agent,  and  claims,  suspended,  rejected,  or  placed 
to  his  credit ;  but  not  of  moneys  received  by  him  for  the  benefit 
of  the  United  States  from  other  sources  than  the  department.^* 
A  transcript  showing  the  moneys  expended  by  the  officers  in 
supplying  the  default  of  the  contractor  to  carry  out  his  contract 
is  competent  evidence.^^  The  certificate  should  show  that  the 
transcript  exhibits  the  final  adjustment  of  the  debits,  as  shown 
not  by  mere  copies  of  original  papers  on  the  files,  but  upon  the 
books  and  records  of  the  department. ^^  It  seems  that  the  bal- 
ances struck  by  the  treasury  and  charged  as  such  are  not  evi- 
dence, but  that  the  items  should  be  stated. i'''  The  errors  made  in 
striking  the  balance  may  be  proved  by  the  defendant  by  the 
procuring  of  the  original  vouchers,  or  otherwise. ^^  The  defend- 
ant by  accepting  the  credits  given  him  does  not  waive  the  ob- 
jection to  the  items  on  the  debit  side.^^  The  government  need 
not  show  that  the  party  had  notice  of  the  adjustment  or  of  the 


13  U.  S.  V.  Buford,  3  Pet.  12,  29, 
7  L.  ed.  585,  590,  per  Mr.  Justice 
M  'Lean. 

14  U.  S.  V.  Buford,  3  Pet.  12,  7 
L.  ed.  585;  U.  S.  v.  Jones,  8  Pet. 
375,  8  L.  ed.  979. 

15  U.  S.  V.  Griffith,  2  Cranch,  C.  C. 
666. 

16  U.  S.  V.  Pinson,  102  U.  S.  548, 
26  L.  ed.  226;  Tiernan  v.  Jackson, 
5  Pet.  592,  8  L.  ed.  239;  U.  S.  v. 
Buford,  3  Pet.  12,  7  L.  ed.  585; 
Cox  V.  U.  S.,  6  Pet.  172,  8  L.  ed. 
359;  U.  S.  V.  Jones,  8  Pet.  375,  8 
L.  ed.  979;  Gratton  v.  U.  S.,  15  Pet. 
336,  10  L.  ed.  759;  Hoyt  v.  U.  S., 
10  How.  109,  13  L.  ed.  348;   Bruce 


V.  U.  S.,  17  How.  437,  15  L.  ed.  129. 

17  U.  S.  V.  Edwards,  1  McLean, 
347;  IT.  S.  v.  Jones,  8  Pet.  375,  8 
L.  ed.  979 ;  Gratiot  v.  U.  S.,  15  Pet. 
336,  10  L.  ed.  759;  Hoyt  v.  U.  S., 
10  How.  109,  13  L.  ed.  348;  U.  S. 
V.  Martin,  2  Paine,  68;  U.  S.  v. 
Gaussen,  19  Wall.  198,  22  L.  ed.  41; 
U.  S.  V.  Smith,  35  Fed.  490;  U.  S. 
V.  Van  Zandt,  2  Cranch,  C.  C.  338; 
U    S.  V.  Kuhn,  4  Cranch,  C.  C.  401. 

ISSoule  V.  U.  S.,  100  U.  S.  8, 
25  L.  ed.  536;  Bruce  v.  U.  S.,  17 
How.  437,  15  L.  ed.  129;  U.  S.  v. 
Stone,  106  U.  S.  525,  27  L.  ed.  163. 

19  U.  S.  V.  Jones,  8  Pet.  375,  8 
L.   ed.   979. 


§  333a]  RECORDS  in  the  treartry  department  lfi63 

balance  against  liim  in  llic  transcript.^"  'rreasiuy  statements 
arc  only  prinui  facie  evidence  of  the  correctness  of  the  balance. 
The  accountiiifi;  ofYicei-  may  correct  mistakes  and  restate  bal- 
ances.2^  "The  statute  says  that  a  transcript  from  the  books 
shall  be  admitted  as  evidence.  A  transcript  or  a  transcribing 
is  substantially  a  copy.  A  copy  from  the  books  and  not  of 
the  books,  shall  be  admissible  in  evidence.  An  extract  from  the 
books,  a  portion  of  the  books,  when  authenticated  to  be  a  copy, 
may  be  given  in  evidence.  While  a  garbled  statement  is  not 
evidence,  or  a  mutilated  statement,  wherein  the  debits  shall  be 
presented  and  the  credits  suppressed,  or  perhaps  a  statement 
of  results  only,  it  still  seems  to  1)0  clear  that  it  is  not  necessary 
that  every  account  with  an  individual,  and  all  of  every  account, 
shall  be  transcribed  as  a  condition  of  the  admissibility  of  any 
one  account.  The  statement  presented  should  be  complete  in  i1- 
self,  perfect  for  what  it  purports  to  represent,  and  give  bolh 
sides  of  the  account  as  the  same  stands  upon  the  books. "^^  \ 
copy  of  a  bond  certified  b}'  the  Secretaiy  of  the  Treasury  with- 
out the  certificate  of  the  register  and  auditor  is  insufficient.^' 
"Upon  the  trial  of  any  indictment  against  any  person  for  em- 
bezzling public  moneys,  it  shall  be  sufficient  evidence,  for  the 
purpose  of  showing  a  balance  against  such  person,  to  produce 
a  transcript  from  the  books  and  proceedings  of  the  Treasury 
Department,  as  provided  by  the  preceding  section."^* 

An  assessment  bv  the  commissioner  of  internal  revenue, 
after  a  finding  that  a  distiller  has  not  accounted  for  all  sjiirils 
produced  by  him,  is  prima  facie  evidence  of  its  validity. ^^  The 
rules  and  regulations  concerning  the  internal  revenue,  which 
are  prescribed  and  promulgated  b}'  the  Treasury  Department, 
have  no  force  as  rules  of  evidence  in  an  action  to  collect  an 
assessment  for  internal  revenue. ^^ 

20  Watkins  v.  U.  S.,  9  Wall.  759,       Ex  parte  Eandolph,  2  Broe-k.  44. 

19   L.   ed.   820.  22  U.  S.  v.  Gausscn,  19  Wall.  212, 

21  Soule    V.    U.    S.,    100    U.    S.    8,  214,  22  L.  ed.  4;{,  por  Justieo  Hunt. 
11,    25   L.    ed.    536,    537;    U.    S.    v.  23  U.  S.  v.  Huuiasoii,  S  Fed.  71. 
Ecksford,    1    How.    250,   263,    11    L.  24  U.  S.   R.   S.,   §887.     See  U.   S. 
ed.   120,   125;    U.   S.  v.   Eggleson,  4  v.  Gaussen,   19  Wail.  198,  22  L.  ed. 
Saw.  201;   U.  S.  v.  Hunt,  105  U.  S.  41. 

183,  187,  26  L.  ed.  1037,  1039.     But  25  V,  S.  v.  Colo,  134  Fed.  697. 

see  U.  S.  V.  Collier,  3  Blatchf.  325;  26  U.  S.  v.  Cole,  134  Fed.  697. 


1664  EVIDENCE  [§  333b 

§  333b.  Evidence  of  books  and  papers  in  the  Post  Office  De- 
partment. Copies  of  books,  records,  papers  and  documents  in 
the  Post  Office  Department  are  admitted  in  evidence  equally 
with  the  originals  when  authenticated  under  the  seal  of  the 
Department.!  The  records  of  a  Post  Office  are  presumptively 
correct.^ 

"Copies  of  the  quarterly  returns  of  postmasters  and  of  any 
papers  pertaining  to  the  accounts  in  the  office  of  the  sixth  au- 
ditor, and  transcripts  from  the  money-order  account-books  o£ 
the  Post  Office  Department,  when  certified  by  the  sixth  auditor 
under  the  seal  of  his  office  shall  be  admitted  as  evidence  in  the 
courts  of  the  United  States,  in  civil  suits  and  criminal  prose- 
cutions; and  in  any  civil  suit,  in  case  of  delinquency  of  any 
postmaster  or  contractor,  a  statement  of  the  account,  certified  as 
aforesaid,  shall  be  admitted  in  evidence,  and  the  court  shall  be 
authorized  thereupon  to  give  judgment  and  award  execution, 
subject  to  the  provisions  of  law  to  proceedings  in  such  civil 
suits.  "3 

"In  all  suits  for  the  recovery  of  balances  due  from  post- 
masters, a  copy,  duly  certified  under  the  seal  of  the  sixth 
auditor,  of  the  statement  of  any  postmaster,  special  agent,  or 
other  person,  employed  by  the  Postmaster-General,  or  the  au- 
ditor for  that  purpose,  that  he  has  mailed  a  letter  to  such  de- 
linquent postmaster,  at  the  postoffiee  where  the  indebtedness 
accrued,  or  at  his  last  usual  place  of  abode ;  that  a  sufficient  time 
has  elapsed  for  said  letter  to  have  reached  its  destination  in  the 
ordinary  course  of  the  mail,  and  the  payment  of  such  balance 
has  not  been  received,  within  the  time  designated  in  his  in- 
structions, shall  be  received  as  sufficient  evidence  in  the  courts 
of  the  United  States  or  other  courts,  that  a  demand  has  been 
made  upon  the  delinquent  postmaster;  but  when  the  account  of 
a  late  postmaster  has  been  once  adjusted  and  settled,   and  a 

§333b.     lU.     S.     K.     S.,     §882,  v.    Harrill,    McAll.    243;    U.    S.    v. 

snpra,    §  333.  Hodge,  13  How.  478,  14  L.  ed.  231; 

2Kenney   v.  U.   S.,  C.   C.  A.,   254  U.  S.  v.  HiUrad,  3  McLean,  324;  U. 

Fed.  262.  S.    v.    Wilkinson,    12    How.    246,    13 

3U.    S.    K.    S..    §889;    U.    S.    v.  L.  ed.  974;   U.  S.  v.  McCoy,  193  U, 

Dumas,    149    U.    S.    278,   37    L.    ed.  S.   593,  48   L.  ed.   805;   Postmaster- 

734;    U.   S.   V.   Carlowitz,   C.   C.   A.,  General  v.  Rice,  Gilp.  554;  Lawrence 

80  Fed.  852;   Soule  v.  U.  8.,  100  U.  v.   U.   S.,  2   McLean,   581;    U.  S.   v. 

S    S,   11,  25   L.  ed.  536,  5;;7;    U.  S.  Snyder,  14  Fed.  5.54. 


>;  3.'i3bJ  HECUKDS  IN'   THE  I'UST  OFFICE  DEl'AKT.M  ENT  Kit'-'i 

demand  has  been  made  for  the  balance  appearing  to  be  due, 
and  afterward  allowances  are  made  on  credits  entered,  it  shall 
not  be  necessary  to  make  a  further  demand  for  the  new  balance 
found  to  be  due."*  Upon  the  trial  of  a  postmaster  for  pre- 
senting a  false  account  in  a  report  of  cancellation  of  stamps 
the  court  .ulmitted  the  teslimony  of  an  inspector  who  had  ex- 
amined the  lecoi'ds  of  many  offices  of  the  same  class  as  to  the 
ratio  of  sales  to  cancellation  of  stamps  there  recoi'ded,  as  to 
the  ratio  belvvccn  sucli  sales  and  cancellations  in  the  defendant's 
po.st  office  before  the  latter "s  api)ointment,  and  that  there  were 
no  industrial  plants  in  the  vicinity  to  be  supplied  with  postage 
stamps  from  other  oiifices,  although  llic  records  of  no  other 
post  office  were  produced.^ 

A  finding  by  the  Postmaster  General,  that  a  contractor  has 
abandoned  the  performance  of  his  contract  is  privui  facie  evi- 
dence of  that  fact.^ 

"Whenever  the  sender  shall  so  re(|uest,  a  receipt  shall  be  taken 
on  the  delivery  of  any  registered  mail  matter,  showing  to  whom 
and  when  the  same  was  delivered,  which  receipt  shall  be  re- 
turned to  the  sender,  and  be  received  in  llic  courts  as  priuia  fcicie 
evidence  of  such  delivery. ' '  "^ 

"It  shall  be  the  duty  of  every  owner,  president,  treasurer, 
secretary,  director,  or  other  officer  or  agent  of  any  cottonseed- 
oil  mill,  manufacturing  establishment,  refinery,  or  warehouse, 
where  cottonseed  products  are  produced,  mamifactured,  or 
stored,  when  requested  by  the  Director  of  the  Census  or  by  any 
special  agent  or  other  employee  of  the  Bureau  of  the  Census 
acting  under  Ihe  instructions  of  the  said  director,  to  furnish 
completely  and  correctly,  to  the  l)est  of  his  knowledge,  all  of 
the  information  concerning  the  quantity  of  cotton  seed  re- 
ceived, consumed,  or  on  hand,  and  the  (|uantity  of  crude  and  re- 
fined oil,  cake  and  meal,  hulls,  and  liiitcrs  produced,  and  the 
quantity  of  these  products  shipped  and  on  hand.  The  request 
of  the  Director  of  the  Census  for  information  concerning  the 
quantity  of  cotton  .seed  received,  consumed,  and  on  hand,  the 

4  r.  S.   H.  S.,  S  890.  7  r.    S.    R.    S.,    §3928,    ameiKU'd. 

5  Kciiiu'v   V.    r.   8.,   C.   C.   A.,   2.14        .M:iy  i':!.   liMo.  <-li.  2.1."\  'AG  St.  at  L. 
Kc(i.  2<i2.  I  U'k   Coiiip.   St.    5i  7410. 

6  1'.  S.  V.  M.-Coy,  1!);;  u.  S.  .J!).:, 
(i(M,    IS    L.  ,m1.  805,  808. 


1666  EVIDENCE  [§  333c 

quantity  of  crude  oil  shipped,  and  the  quantity  of  crude  oil 
consumed  and  stocks  on  hand  may  be  made  in  writing  or  by  a 
visiting  representative,  and  if  made  in  writing  shall  be  for- 
warded by  registered  mail,  and  the  registry  receipt  of  the  Post 
Office  Department  shall  be  accepted  as  prima  facie  evidence 
of  such  demand. ' '  * 

"The  Postmaster-General  may,  upon  evidence  satisfactory  to 
him  that  any  person  or  company  is  engaged  in  conducting  any 
lottery,  gift,  enterprise,  or  scheme  for  the  distribution  of 
money,  or  of  any  real  or  personal  property  by  lot,  chance,  or 
drawing  of  any  kind,  or  that  any  person  or  company  is  con- 
ducting any  other  scheme  for  obtaining  money  or  property  of 
any  kind  through  the  mails  by  means  of  false  or  fraudulent  pre- 
tenses, representations,  or  promises,  forbid  the  payment  by  any 
postmaster  to  said  person  or  company  of  any  postal  money- 
orders  drawn  to  his  or  its  order,  or  in  his  or  its  favor,  or  to  the 
agent  of  any  such  person  or  company,  whether  such  agent  is 
acting  as  an  individual  or  as  a  firm,  bank,  corporation,  or  asso- 
ciation of  any  kind,  and  may  provide  by  regulation  for  the 
return  to  the  remitters  of  the  sums  named  in  such  money- 
orders. 

"But  this  shall  not  authorize  any  person  to  open  any  letter 
not  addressed  to  himself. 

"The  public  advertisement  by  such  person  or  company  so 
conducting  any  such  lottery,  gift  enterprise,  scheme,  or  device, 
that  remittances  for  the  same  may  be  made  by  means  of  postal 
money-orders  to  any  other  person,  firm,  bank,  corporation,  or 
association  named  therein  shall  be  held  to  be  prima  facie  evi- 
dence of  the  existence  of  said  agency  by  all  the  parties  named 
therein ;  but  the  Postmaster-General  shall  not  be  precluded  from 
ascertaining  the  existence  of  such  agency  in  any  other  legal 
way. ' '  ^ 

§  333c.  Evidence  of  books  and  papers  in  the  Department  of 
the  Interior — In  general.  Copies  of  books,  records,  papers,  and 
documents  in  the  Department  of  the  Interior  are  admitted  in 
evidence  equally  with  the  originals  when  authenticated  under 

8  (August  7,  1916,  c.  274,  §  3,  39  Sept.  19,  1890,  ch.  908,  §  3,  26  St. 
St.  at  L.  437,  Comp.  §  443-4c.)  at  L.  466,  Comp.  St.  §  7573. 

9U.    S.    E.    S.,    §4041,    amended, 


§  33.3d]  EVIDENCE  OF  LAND  TITLES  1667 

the  seal  of  the  Department.^  Applications  for  pensions  and 
other  records  and  papers  in  the  Pension  Hureau  may  thns  be 
proved.^ 

"A  copy  of  any  return  of  a  contract  returned  and  filed  in 
the  returns-office  of  the  Department  of  Interior,  as  provided  by 
law,  when  certified  l)y  Hie  clerk  of  said  office  to  be  full  and  com- 
plete, and  when  authenticated  by  the  seal  of  the  Department, 
shall  be  evidence  in  any  prosecution  against  an  officer  for  falsely 
and  corruptly  swearing  to  the  affidavit  required  by  law  to  be 
made  by  such  officer  in  making  his  return  of  any  contract  as 
required  by  law,  to  said  returns-office."  ^ 

§333d.  Evidence  of  books  and  papers  in  the  Land  Office 
and  as  to  land  grants  and  tax  sales.  ' "  Copies  of  any  records, 
books,  or  papers  in  the  General  Land  Office,  authenticated  by 
the  seal  and  certified  by  the  Commissioner  thereof,  or,  when  his 
office  is  vacant,  by  the  principal  clerk,  shall  be  evidence  equally 
with  the  originals  thereof.  And  literal  exemplifications  of  any 
such  records  shall  be  held,  when  so  introduced  in  evidence,  to 
be  of  the  same  validity  as  if  the  names  of  the  officers  signing 
and  countersigning  the  same  had  been  fully  inserted  in  such 
record."^  The  section  determines  the  question  of  competency 
but  not  of  materiality.^  It  only  applies  to  official  documents.^ 
The  words,  "evidence  equally  with  the  originals,"  do  not  mean 
that  in  all  cases  the  copy  shall  have  the  same  probative  force  as 
the  original,  and  that  on  a  question  as  to  some  particular  word 
or  figure,  the  copy  shall  be  as  convincing  as  the  original;  it 
merely  requires  the  copy  to  be  regarded  as  of  the  same  class  in 
the  grades  of  evidence,  as  to  written  and  parol,  and  primary 
and  secondary.'* 

"The  Commissioner  of  the  General  Land  Office  shall  cause 
to  be  prepared,  and  shall  certify,  under  the  seal  of  the  office, 
such  copies  of  records,  books,  and  papers  on  file  in  his  oflfiee 

§  333e.     1  U.  S.  R.  S.,  §  882,  supra,  2  Howard  v.  Perrin,  200  U.  S.  71, 

§333.  7:?,  r,0   L.   od.  374,  376. 

2  Phelaud  V.  U.   S.,  C.  C.  A.,  249  3  Block  v.  U.  S.,  7  Ct.  CI.  406. 

Fed.  43.  *  Campbell    v.    Laclede    Gas    Co., 

3U.    S.   R.   S.,    §888.      See  U.   S.  119  U.   S.   445,  449,  30   L.  ed.   459, 

R.  S.,  3744.  460.     See  Gait   v.   Galloway,  4   I'et. 

§  333d.     1  U.   S.   R.   S.,   §  891.  331,  7  L.  ed.  876. 


1668 


t:VIDENCE 


[§33M 


as   may  be   applied   for,   to   be   used   in   evidence   in   courts   of 
justice."^ 

"Literal  exemplifications  of  any  records  which  have  been  or 
may  be  granted  in  virtue  of  the  preceding  section  shall  be 
deemed  of  the  same  validity  in  all  proceedings,  whether  at  law 
or  in  equity,  wherein  such  exemplifications  are  adduced  in  evi- 
dence, as  if  the  names  of  the  officers  signing  and  countersigning 
the  same  had  been  fully  inserted  in  such  record."^ 

' '  Copies  of  any  patents,  records,  books,  or  papers  in  the  Gen- 
eral Land  Office  authenticated  by  the  seal  and  certified  by  the 
recorder  of  such  Office  shall  be  evidence  equally  with  the  orig- 
inals thereof  to  the  same  force  and  effect  as  when  certified  by 
the  Commissioner  of  said  Office."  '^ 

A  party  is  not  deprived  of  his  title  because  of  a  defective 
record,  if  he  has  a  perfect  patent.  A  perfect  record  of  a  per- 
fect patent  proves  the  grant;  but  a  perfect  record  of  an  im- 
perfect patent,  or  an  imperfect  record  of  a  perfect  patent,  has 
no  such  effect.  In  such  a  case,  if  a  perfect  patent  has  in  fact 
issued,  it  must  be  proved  in  some  other  way  than  by  the  record.* 
The  defective  record  in  the  General  Land  Office  does  not  de- 
prive a  party  of  his  rights,  and  the  contents  of  the  original  may 
be  shown  if  the  record  or  transcript  is  not  a  true  copy.^  "The 
names  need  not  be  ful]y  inserted  in  the  record,  but  it  must  ap- 
pear in  some  form  that  the  names  were  actually  signed  to  the 
patent  when  it  issued."  i°  A  perfect  record  of  a  perfect  patent 
is  presumptive  evidence  of  its  delivery  to  and  acceptance  by  the 
grantee."  An  entry  in  the  books  of  the  Land  Office,  that  the 
balance  of  the  purchase-money  was  paid  by  the  person  "to  whom 


5  IT.  S.  R.  S.,  §  2469.  This  statute 
and  U.  S.  E.  S.,  §  891,  do  not  forbid 
the  testimony  of  a  witness  from  a 
tract  book  used  in  his  office  which  is 
not  certified  by  the  commissioner. 
Jesse  D.  Carr  Land  &  Live  Stock  Co. 
V.  U.  S.,  C.  C.  A.,  118  Fed.  821. 

6  U.  S.  R.  S.,  §  2470.  A  certifi- 
cate by  a  commissioner  after  he  has 
made  an  adjudication  is  inadmis- 
sible, unless  a  copy  of  the  adjudica- 
tion is  annexed.  U.  S.  v.  Lew  Poy 
Dew,  119  Fed.  786. 


7.33  St.  at  L.  185,  Pierce's  Fed. 
Code   §7570. 

SMcGarrahan  v.  Mining  Co.,  96 
U  S.  316,  323,  24  L.  ed.  630,  635; 
Campbell  v.  Laclede  Gas  Co.,  119 
IT.  S.  445,  449,  30  L.  ed.  459,  460. 

9  Culver  v.  Uthe,  133  U.  S.  655, 
33  L.  ed.  776. 

10  McGarrahan  v.  Mining  Co.,  96 
IT.  S.   316,  323,  24  L.  ed.  630,  635. 

11  Ibid. 


§  338d]  EVIDENCE  OF  LAND  TITLES  1669 

the  patent  had  issued,"  is  some  evidence  that  a  patent  issued, 
although  no  patent  is  produced. ^^  A  certificate  by  a  receiver 
that  a  party  has  made  full  payment  is  evidence  that  such  party 
has  taken  the  steps  necessary  for  a  pre-emption."  The  tract 
book  of  a  local  land  office  is  prima  facie  evidence  that  the  lands 
therein  shown  to  be  public  lands  are  such.^*  A  book  prepared 
by  the  Commissioner  of  the  General  Land  Office,  as  a  substitute 
for  the  original  tract  book  of  a  local  land  office  which  has  been 
destroyed,  and  sent  by  him  to  the  register  and  receiver  of  the 
latter  office  for  official  use  is  admissible  in  evidence  without 
authentication  or  certification  by  the  Commissioner.^^  A  copy 
of  a  plat  and  description  duly  authenticated  is  admissible.^^ 
A  connected  plat  of  sundry  tracts  of  land  made-  and  put  to- 
gether by  an  officer  of  the  Land  Office,  which  is  not  the  copy  of 
any  record  in  such  office,  is  not  competent  evidence.^' 

Under  this  statute  a  certified  copy  of  the  records  of  the  Land 
Office  at  Washington,  concerning  the  location  of  a  land  warrant 
containing  a  description  of  the  various  acts  of  the  register  and 
receiver  at  the  Land  Office  at  Chicago,  and  of  the  locator  in 
regard  to  the  location,  showing  that  the  land  was  subject  to 
location  at  the  time,  and  that  the  land  warrant  was  properly 
delivered  up  and  deposited  with  the  Commissioner  of  the  Land 
Office,  is  admissible  in  evidence.^^ 

A  map  which  states  on  its  face  that  it  was  issued  from  the 
General  Land  Office  under  the  authority  of  the  Secretary  of 
the  Interior  is  admissible  without  further  authentication.*^ 

The  hydrographic  maps  of  the  United  States  coast  and  Geo- 
detic survey  are  entitled  to  full  credence  as  to  all  that  they 
purport  to  show ;  ^o  but  a  Circuit  Court  of  Appeals  affirmed  the 
ruling  of  the  trial  court  in  excluding  such  a  map  and  a  photo- 
graph of  a  coast  line  made  several  years  after  the  date  of  the 

12  Willis  V.  Bucher,  3  Wash.  C.  C.  17  Griffith  v.  Truckhonier,  Pet.  C. 
369.  C.  166. 

13  McDonald  v.  Edmonds,  44  Cal.  18  Culver  v.  Ulthe,  133  U.  S.  655. 
328.  33  L.  ed.  776. 

14  Jesse  D.  Carr  Land  &  Live  19  Stewart  v.  U.  S.,  C.  C.  A.,  21 
Stock  Co.  V.  U.  S.,  C.  C.  A.,  118  Fed.  Fed.  41,  45. 

821.  20  U.  S.  V.  Roniaine,  C.  C.  A.,  255 

15  Tbid.  Fed.  253. 

16  Harris    v.    Barnett,    4    Blatchf. 
369. 

Fed.  Prac.  Vol.  11—35 


1870  EVIDENCE  [§  333d 

facts  in  controversy  in  the  absence  of  evidence  that  there  had 
been  no  change.^^ 

A  map  of  property,  prepared  by  an  agent  to  aid  in  selling 
it,  is  admissible  as  evidence  of  an  act  of  ownership  by  his  prin- 
cipal.^^ 

A  copy  of  a  survey  certified  by  the  register,  by  the  proper 
judge  and  by  the  Secretary  of  State  under  the  great  seal  was 
admitted  in  evidence.^^ 

The  field  notes  of  government  surveyors  are  not  conclusive.^* 
A  discrepancy  between  them  and  the  calls  for  quantity  will 
discredit  them.^^ 

' '  It  shall  be  lawful  for  any  keeper  or  person  having  custody 
of  laws,  judgments,  orders,  decrees,  journals,  correspondence, 
or  other  public  documents  of  any  foreign  government  or  its 
agents,  relating  to  the  title  to  lands  claimed  by  or  under  the 
United  States,  on  the  application  of  the  head  of  one  of  the  De- 
partments, the  Solicitor  of  the  Treasury,  or  the  Commissioner 
of  the  General  Land  Office,  to  authenticate  copies  thereof  under 
his  hand  and  seal,  and  to  certify  them  to  be  correct  and  true 
copies  of  such  laws,  judgments,  orders,  decrees,  journals,  cor- 
respondence, or  other  public  documents,  respectively ;  and  when 
such  copies  are  certified  by  an  American  minister  or  consul, 
under  his  hand  and  seal  of  office,  to  be  true  copies  of  the  orig- 
inals, they  shall  be  sealed  up  by  him  and  returned  to  the  So- 
licitor of  the  Treasury,  who  shall  file  them  in  his  office,  and 
cause  them  to  be  recorded  in  a  book  kept  for  that  purpose.     A 
copy  of  any  such  law,  judgment,  order,   decree,  journal,  cor- 
respondence or  other  public  document,  so  filed,  or  of  the  same  so 
recorded  in  said  book,  may  be  read  in  evidence  in  any  court, 
where  the  title  to  land  claimed  under  or  by  the  United  States 
may  come  into  question,  equally  with  the  originals."  ^6 

'"'The  official  seals  heretofore  authorized  to  be  provided  for 
the  offices  of  the  surveyors-general  of  Oregon,  California,  and 

21  Beach  Front  Hotel  Co.  v.  Sooy,  Co.,  C.  C.  A.,  254  Ted.  656. 
C.  C.  A.,  210  Fed.  265.  25  Ibid. 

22  Virginia  &  West  Virginia  Coal  26  U.   S.   R.   S.,   §907;    Ten   Cases 
Co.  V.  Charles,  251  Fed.  83,  111.  v.  U.  S.,  34  Fed.  101;   Chadwick  v. 

23  Smith  V.  Ridden,  5  Harr.  (Del.)  U.  S.,  3  Fed.  753;  Williams  v.  U.  S., 
321^  137  U.   S.   113,   136,   .34  L.  ed.   590, 

24  U.    S.    V.  Redondo   Development  597. 


§  333d  J  EVIDENCE  OF  LAND  TITLES  1671 

Louisiana  shall  continue  to  be  used ;  and  any  copy  of  or  extract 
from  the  plats,  field-notes,  records,  or  other  papers  on  file  in 
those  offices,  respectively,  when  authenticated  by  the  seal  and 
signature  of  the  proper  surveyor-general,  shall  be  evidence  in 
all  cases  in  which  the  original  would  l)e  evidence."^' 

"Any  copy  of  a  plat  of  survey,  or  transcript  from  the  rec- 
ords of  tlic  office  of  surveyor-general  of  Louisiana,  duly  certi- 
fied by  him,  shall  be  admitted  as  evidence  in  all  the  courts  of 
the  United  States  and  the  Territories  thereof.  "^8 

"All  official  books,  papers,  instruments  of  writing,  docu- 
ments, archives,  official  seals,  stamps,  or  dies,  which  have  been 
heretofore  authorized  1)y  law  to  be  collected  and  deposited  in 
the  surveyor-general's  office  in  California,  shall  lie  safel.v  and 
securely  kept  by  such  surveyor-general  in  the  archives  of  his 
office;  and  copies  thereof,  authenticated  by  the  surveyor-general 
'under  his  seal  of  office,  shall  be  evidence  in  all  cases  where  the 
originals  would  be  evidence. ' '  ^^ 

The  certificate  of  the  Secretary  of  the  Spanish  Governor  of 
Florida  is  prima  facie  evidence  of  the  existence  of  a  grant  of 
land.30 

A  party  claiming  under  a  tax  deed,  must  affirmatively  show 
that  every  requisite  to  its  legal  execution  was  performed  unless 
it  was  the  result  of  a  judicial  proceeding  or  there  was  long  and 
open  possession  thereunder. ^^ 

"It  shall  be  the  duty  of  every  t-tiUector  to  keep  a  record  of  all 
sales  of  land  made  in  his  collection-district,  whether  by  himself 
or  his  deputies,  or  by  another  collector,  in  which  shall  be  set 
forth  the  tax  for  which  any  such  sale  was  made,  the  dates  of 
seizure  and  sale,  the  name  of  the  party  assessed  and  all  pro- 
ceedings in  making  said  sale,  amount  of  fees  and  expenses,  the 
name  of  the  purchaser  and  the  date  of  tlic  deed ;  and  said  rec- 
ord shall  be  certified  by  tlie  officer  making  the  sale.  And  on 
or  before  the  fifth  day  of  each  succeeding  month  he  shall  trans- 
mit a  copy  of  such  record  of  the  preceding  month  to  the  Com- 

27  U.  S.  B.  S.,  §  2224,  Comp.  St.  30  U.  S.  v.  Wiggins,  14  Pet.  334, 
§4458.                                                           10   L.   ed.  481;    U.   S.   v.  Acosta,   1 

28  U.   S.  K.   S.,   §2225,   Comp.   St.       How.  24,  11  L.  ed.  3.".. 

§  4459.  31  Virginia  &  West  Virginia  Coal 

29  U.   S.   M.   8.,   §2229,  Conij).   St.       Co.  v.  Cliarlos,  251  Fed.  s::,  119. 
§  4464. 


1672  EVIDENCE  [§  333d 

missioner  of  Internal  Kevenue.  And  it  shall  be  the  duty  of 
every  deputy  making  sale,  as  aforesaid,  to  return  a  statement 
of  all  his  proceedings  to  the  collector,  and  to  certify  the  record 
thereof.  In  case  of  the  death  or  removal  of  the  collector,  or  the 
expiration  of  his  term  of  office  from  any  other  cause,  said  rec- 
ord shall  be  delivered  to  his  successor  in  office ;  and  a  copy  of 
every  such  record,  certified  by  the  collector,  shall  be  evidence  in 
any  court  of  the  truth  of  the  facts  therein  stated. ' '  ^^ 

"Upon  any  sale  of  real  estate  to  satisfy  an  assessment  for  in- 
ternal revenue  the  deed  of  sale  given  in  pursuance  of  the  pre- 
ceding section  shall  be  prima-facie  evidence  of  the  facts  therein 
stated;  and  if  the  proceedings  of  the  officer  as  set  forth  have 
been  substantially  in  accordance  with  the  provisions  of  law, 
shall  be  considered  and  operate  as  a  conveyance  of  all  the  right, 
title,  and  interest  the  party  delinquent  had  in  and  to  the  real 
estate  thus  sold  at  the  time  the  lien  of  the  United  States 
attached  thereto. ' '  '^ 

Where  the  plaintiff  derived  his  title  by  a  deed  of  the  desig- 
nated collectors  of  the  Federal  Direct  Tax  of  1916,  the  court 
admitted  an  extract  from  the  Senate  Journal  duly  authenti- 
cated which  showed  the  nomination  and  confirmation  of  the 
grantor  as  collector  of  direct  taxes  although  it  did  not  show 
that  he  was  appointed  designated  collector.^*  A  recital  in  a  tax 
deed  that  the  sale  had  been  advertised  in  a  newspaper  author- 
ized to  publish  the  laws  of  the  United  States  created  no  pre- 
sumption that  such  newspaper  was  so  authorized.^^ 

Papers,  purporting  to  be  original  tax  receipts  for  payments 
more  than  thirty  years  before,  when  produced  from  the  posses- 
sion of  the  party  who  made  the  payments  are  admissible  as 
evidence  of  such  payments  ^^  and  of  acts  of  ownership  by  the 
payer.^'i'  Deeds  and  powers  of  attorney  for  the  sale  of  land 
are  admissible  as  acts  of  ownership. ^^  Deeds  of  bargain  and 
sale  create  no  presumption  of  possession.^^ 

32  U.    S.    R.    S.,    §3203,    amended  35  Ibid. 

March  1,  1879,  c.  125,  §  3,  20  St.  at  ■    36  Virginia  &  West  Virginia  Coal 

L.  332,  Comp.  St.  §  5925.  Co.  v.  Charles,  251  Fed.  83,  111. 

33  U.  S.  E.  S.,  §  3199,  Comp.   St.  37  Ibid. 
§  5921.  38  Ibid. 

34  Virginia  &  West  Virginia  Coal  39  Ibid. 
Co.  V.  Charles,  251  Fed.  83. 


§  333e]  EVIDENCE  OF  MATTERS  IN  THE  PATENT  OFFICE  1673 

"In  all  trials  about  the  right  of  property  in  which  an  Indian 
may  be  a  party  on  one  side,  and  a  white  person  on  the  other, 
the  burden  of  proof  shall  rest  upon  the  white  person,  whenever 
the  Indian  shall  make  out  a  presumption  of  title  in  himself 
from  the  fact  of  previous  possession  or  ownership."  *° 

§333e.  Evidence  of  matters  in  the  Patent  Office.  "Written 
or  printed  copies  of  any  records,  books,  i)apers,  or  drawings 
belonging  to  the  patent  office,  and  of  letters-patent  authenti- 
cated b}'  the  seal  and  certified  by  the  commissioner  or  acting 
commissioner  thereof,  shall  be  evidence  in  all  cases  wherein  the 
originals  could  be  evidence ;  and  any  person  making  application 
therefor  and  paying  the  fee  required  by  law,  shall  have  certi- 
fied copies  thereof."  ^  Printed  copies  which  are  not  certified  are 
inadmissible.'' 

A  transcript  of  certain  documents  on  file  is  competent,  al- 
though not  a  transcript  of  the  whole  proceedings.^ 

Proof  that  there  is  no  record  must  be  made  by  deposition  or 
attendance  in  court  of  the  proper  officer;  and  a  mere  certificate 
that  diligent  search  has  been  made  is  not  sufficient.* 

It  seems  that  the  court  will  presume  that  a  person  who  signs 
as  "Acting  Commissioner"  holds  such  office,  in  the  absence  of 
evidence  to  the  contrary.*  A  certificate  by  a  commissioner  after 
he  has  made  an  adjud'ication  is  inadmissible,  unless  a  copy  of 
the  adjudication  is  annexed.^ 

"The  printed  copies  of  specifications  and  drawings  of  pat- 
ents, which  the  Commissioner  of  Patents  is  authorized  to  print 
for  gratuitous  distribution,  and  to  deposit  in  the  capitols  of  the 
States  and  Territories,  and  in  the  clerk's  offices  of  the  District 
Courts,  shall  when  certified  by  him  and  authenticated  by  the 
seal  of  his  office,  be  received  in  all  courts  as  evidence  of  all  mat- 
ters therein  contained. ' '  "^ 

40  U.    S.    E.    S.,    §2126,    Pierce's  Am.     Depot     Co.     v.     Sheldon,     17 

Fed.  Code   §5725.  Blatchf.    210;    Stone   v.   Palmer,   28 

§  333e.     1 U.    S.   E.   S.,    §  892,   29  Mo.  539. 

St.  at  L.  692.     Cf.  Edison  E.  L.  Co.  6  Woodworth   v.    Hall,   1    Wood   & 

V.  U.  S.  E.  L.  Co.,  44  Fed.  294.  M.  248. 

2  National    Cash    Eegister    Co.    v.  6  U.  S.  v.  Lew  Poy  Dew,  119  Fed. 

Gratigny,  C.  C.  A.,  213  Fed.  463.  786. 

SToohey  v.  Harding,  1  Fed.   174.  7U.    S.    E.    S.,    §894.      29   St.   at 

4Stoner  v.  Ellis,  6  Ind.  152;  Bui-  L.  693.     Cf.  U.  S.  E.  S.,  §4898. 
lock  V.  Wallingford,  55  N.  H.  619; 


1674 


EVIDENCE 


[§  333e 


An  assignment  of  a  patent  cannot  be  proved  by  an  abstract 
showing  its  record  in  the  patent  office.®  The  original  or  a  copy 
duly  proved  must  be  produced.^  An  assignment  of  a  patent 
executed  in  a  foreign  country  in  pursuance  of  the  laws  of  the 
United  States  is  valid  although  it  fails  to  comply  with  the  re- 
quirements of  the  laws  of  the  foreign  country.^"  ''If  any  such 
assignment,  grant,  or  conveyance  of  any  patent  shall  be  ac- 
knowledged before  any  notary  public  of  the  several  States  or 
Territories  or  the  District  of  Columbia,  or  any  commissioner  of 
the  United  States  circuit  court,  or  before  any  secretary  of  lega- 
tion or  consular  officer  authorized  to  administer  oaths  or  per- 
form notarial  acts  under  section  seventeen  hundred  and  fifty 
of  the  Revised  Statutes,  the  certificate  of  such  acknowledg- 
ment, under  the  hand  and  official  seal  of  such  notary  or  other 
officer,  shall  be  prima  facie  evidence  of  the  execution  of  such 
assignment,  grant  or  conveyance. ' '  *^ 

"Copies  of  the  specifications  and  drawings  of  foreign  letters- 
patent,  certified  as  provided  in  tiie  preceding  section,  shall  be 
prima  facie  evidence  of  the  fact  of  the  granting  of  such  let- 
ters-patent, and  of  the  date  and  contents  thereof.  "^^ 

Ordinarily,  the  issue  of  a  patent  is  prima  facie  evidence  that 
the  patentee  was  the  first  discoverer  or  inventor  of  the  thing 
patented  Avhich  can  be  disputed  only  by  proof  beyond  a  rea- 
sonable doubt.  13  It  has  been  said  that  this  rule  does  not  apply 
to  combinations  of  materials  ordinarily  used  for  structural  pur- 


poses 


14 


8  Johnston  v.  Southern  Well 
AVorks  Co.,  C.  C.  A.,  208  Fed.  145. 

9  Ibid. 

10  Linde  Air  Products  Co.  v. 
Morse  Dry  Dock  &  K.  Co.,  239  Ted. 
909. 

11  Mayor,  etc.,  City  of  New  York 
V.  American  Cable  R.  Co.,  C.  C.  A., 
60  Fed.  1016;  Paine  v.  Trask,  C.  C. 
A.,  56  Fed.  233;  Lee  v.  Blandy,  1 
Bond,  361 ;  Brooks  v.  Jenkins,  3 
McLean,  432;  Parker  v.  Haworth, 
4   McLean,  370. 

12  Am.  Graphophonc  Co.  v.  Leeds 
&  Catlin  Co.,  140  Fed.  981.  U.  S. 
R.   S.,   §  893.     A  copy   of   a   French 


patent  certified  by  the  director  of 
the  Conservatoire  Nationale  des  Arts 
(>t  Metiers  of  France,  under  the  seal 
of  that  department,  verified  by  the 
minister  of  foreign  affairs,  under 
their  seals,  but  not  by  the  great 
seal  of  France,  may  be  admitted  in 
evidence.  Schoerken  v.  Swift  C.  & 
B.  Co.,  7  Fed.  469,  471.  See  Deflorz 
V.   Reynolds,   17  Blatchf.  436. 

13  Adamson  v.  Gilliland,  242  U.  S. 
350;  Crone  v.  John  J.  Gibson  Co., 
237  Fed.  637.  S  -e  supra,  §  146,  147, 
277. 

14  Turner  \ .  Lauter  Piano  Co.,  236 
Fed.   2.-)2. 


§  333e]  EVIDENCE  OP^  MATTERS  IX  TilE  I'ATKNT  OFFICE  1675 

In  a  suit  to  restrain  an  infringement  the  record  of  inter- 
ference proceedings  in  the  patent  office  is  admissible  to  strengtli- 
en  the  presumption  of  validity  arising  from  the  allowance  of 
the  patent  ^^  as  regards  the  scope  and  patentaljility  of  tlie  in- 
vention, althougii  the  parties  are  not  the  same,  but  not  to  es- 
tablish prior  inventions. ^^  Testimony  before  the  patent  office, 
in  interference  proceedings  between  the  same  parties,  is  not 
ordinarily  admissible  in  a  suit  to  compel  the  issue  of  a  patent.^' 

Letters  written  by  an  api)licant  for  a  patent,  when  properly 
certified  as  papers  remaining  in  the  departments,  are  admissible 
in  evidence. ^^  The  documents  which  make  up  the  original  pa- 
pers belong  to  the  public  archives,  and  a  dul}'  certified  copy 
thereof  is  competent  evidence,  although  some  of  these  documents 
may  contain  private!  stipulation.s  between  the  parties  con- 
cerned.^^ Putting  in  evidence  the  file  wrapper  of  a  patent  foi- 
which  priority  of  invention  is  claimed,  for  tlie  purpose  of  con- 
tradicting testimony  of  the  inventor  as  to  the  date  of  the  inven- 
tion, does  not  make  the  depositions  contained  therein  evidence 
in  the  case  for  all  purposes.^o 

A  certified  copy  of  a  patent  surrendered  and  canceled  is  ad- 
missible to  show  that  an  improvement  subsequently  patented  is 
not  original,  although  the  certificate  does  not  show  when  it  was 
canceled,  or  how  or  to  what  defect. ^^  A  Circuit  Court  granted  a 
certificate  that  a  certified  copy  of  such  a  paper  would  be  admit- 
ted in  evidence,  subject  to  all  legal  objections,  in  a  suit  in 
equit}'.^^ 

By  the  Trade-Mark  Law,  "That  the  registration  of  a  trade- 
mark under  the  provisions  of  this  Act  shall  be  prima  facie  evi- 
dence of  ownership.  Any  person  who  shall,  without  the  consent 
of  the  owner  thereof,  reproduce,  counterfeit,  copy,  or  colorably 

15  Western  Electric  Co.  v.  Wil-  17  Dover  v.  Greenwood,  154  Fed. 
liams-Abbott  Electric  Co.,  C.  C.  A.,       854. 

83  Fed.  842;   Mihier  Seating  Co.  v.  18  Pettihone  v.  Deringer,  4  Wash. 

Yesbera,    C.    C.    A.,    Ill    Fed.    386;  V    C.   21.1,  219. 

Westinghouse  Electric  &  Mfg.  Co.  v.  19  Hanrick    v.    Barton,    16    Wall. 

Stanley    Instrument    Co.,    C.    C.    A.,  166.  21  L.  ed.  350. 

133  Fed.  167;  Bishop-Baboek-Becker  20  Richardson  v.  Campbell,  72  Ked. 

Co.  V.  Arnholt   &  Schaefer  Brewing  ')2'). 

Co.,  220  Fed.  676.  21  Delano  v.   Scott,  Gilp.  489. 

16  Elliott  &  Co.  V.  Youngatown  22  MacWilliam  v.  Connecticut  Web 
Car  Mfg.  Co.,  180  Fed.  345.  Co.,  119  Fed.  509. 


1676  EVIDENCE  [§  333f 

imitate  any  such  trade-mark  and  affix  the  same  to  merchandise 
of  substantially  the  same  descriptive  properties  as  those  set 
forth  in  the  registration,  or  to  labels,  signs,  prints,  packages, 
wrappers,  or  receptacles  intended  to  be  used  upon  or  in  connec- 
tion with  the  sale  of  merchandise  of  substantially  the  same  de- 
scriptive properties  as  those  set  forth  in  such  registration,  and 
shall  use,  or  shall  have  used,  such  reproduction,  counterfeit, 
copy,  or  colorable  imitation  in  commerce  among  the  several 
States,  or  with  a  foreign  nation,  or  with  the  Indian  tribes,  shall 
be  liable  to  an  action  for  damages  therefor  at  the  suit  of  the 
owner  thereof ;  and  whenever  in  any  such  action  a  verdict  is  ren- 
dered for  the  plaintiff,  the  court  may  enter  judgment  therein 
for  any  sum  above  the  amount  found  by  the  verdict  as  the  actual 
damages,  according  to  the  circumstances  of  the  case,  not  ex- 
ceeding three  times  the  amount  of  such  verdict,  together  with 
the  costs.  "^^ 

He  who  desires  a  copy  of  papers  filed  in  the  patent  office  must 
make  demand  therefor  in  a  proper  manner,  without  insulting 
or  abusing  the  officers ;  but  if  a  second  demand  is  properly  made, 
the  commissioner  cannot  refuse  to  comply  because  of  the  appli- 
cant's previous  improper  conduct.^* 

§333f.  Copjnright  records.  "In  the  case  of  each  entry  the 
person  recorded  as  the  claimant  of  the  copyright  shall  be  en- 
titled to  a  certificate  of  registration  under  seal  of  the  copyright 
office,  to  contain  the  name  and  address  of  said  claimant,  the 
name  of  the  country  of  which  the  author  of  the  work  is  a  citizen 
or  subject,  and  when  an  alien  author  domiciled  in  the  United . 
States  at  the  time  of  said  registration,  then  a  statement  of  that 
fact,  including  his  place  of  domicile,  the  name  of  the  author 
(when  the  records  of  the  copyright  office  shall  show  the  same), 
the  title  of  the  work  which  is  registered  for  which  copyright  is 
claimed,  the  date  of  the  deposit  of  the  copies  of  such  work,  the 
date  of  publication  if  the  work  has  been  reproduced  in  copies 
for  sale,  or  publicly  distributed,  and  such  marks  as  to  class 
designation  and  entry  number  as  shall  fully  identify  the  entr3\ 
In  the  case  of  a  book,  the  certificate  shall  also  state  the  receipt 
of  the  affidavit,  as  provided  by  section  sixteen  of  this  Act,  and 

23  Act  of  Feb.  20,  1905,  33  St.  at  24  Boyden  v.  Burke,  14  How.  575, 

L.  728,  Pierce's  Fed.  Code,  §8822.       14  L.  ed.  548. 


§  333g] 


RECORDS   IN   THE  PENSION   OFFICE 


1677 


the  date  of  the  completion  of  the  printing,  or  the  date  of  the 
publication  of  the  book,  as  stated  in  the  said  affidavit.  The 
register  of  copyrights  shall  prepare  a  printed  form  i'or  the  said 
certificate,  to  be  tilled  out  in  each  case  as  above  provided  for  in 
the  case  of  all  registrations  made  after  this  Act  goes  into  ef- 
fect, and  in  the  case  of  all  previous  registrations  so  far  as  the 
copyright  office  record  books  shall  show  such  facts,  which  cer- 
tificate, sealed  with  the  seal  of  the  copyright  office,  shall,  upon 
payment  of  the  prescribed  fee,  be  given  to  any  person  making 
application  for  the  same.  Said  certificate  shall  be  admitted  in 
any  court  as  prima  facie  evidence  of  the  facts  stated  therein. 
In  addition  to  such  certificate  the  register  of  copyrights  shall 
furnish,  upon  request,  without  additional  fee,  a  receipt  for  the 
copies  of  the  work  deposited  to  complete  the  registration."  ^ 
Prima  facie  proof  of  copyright  is  made  by  the  certificate  and 
the  receipt  for  the  affidavit  required.^ 

"Every  assignment  of  copyright  executed  in  a  foreign  coun- 
try shall  be  acknowledged  by  the  assignor  before  a  consular 
officer  or  secretary  of  legation  of  the  United  States  authorized 
by  law  to  administer  oaths  or  perform  notarial  acts.  The  cer- 
tificate of  such  acknowledgement  under  the  hand  and  official 
seal  of  such  consular  officer  or  secretary  of  legation  shall  be 
prima  facie  evidence  of  the  execution  of  the  instrument."  ^ 

§  333g.  Evidence  of  books  and  papers  in  the  Pension  Bureau 
ajid  presumptions  in  pension  cases.  The  books  and  papers  in 
the  Pension  Bureau  are  proved  by  the  production  of  the  orig- 
inals or  copies  under  the  seal  of  the  Secretary  of  the  Interior.^ 

"All  applicants  for  pensions  shall  be  presumed  to  have  had 
no  disability  at  the  time  of  enlistment;  but  such  presumption 
mav  be  rebutted. ' '  ^ 


§333f.  1  March  4,  1909,  ch.  320, 
§  55,  35  St.  at  L.  1086,  amended 
March  2,  1913,  ch.  97,  37  St.  at  L. 
724,  Comp.   St.   §  9576. 

2  Chautauqua  School  of  Nursing 
V.  National  School  of  Nursing,  211 
Ted.  1014. 

3  Act  of  March  4,  1909,  ch.  320, 
§43,  35  St.  at  L,  1084,  Comp.  St. 
§9564.  See  supra,  §§150,  278; 
infra,  §  389g.     The  evidence  admis- 


sible in  suits  to  restrain  the  in- 
fringement of  copyrights  is  well  dis- 
cussed in  "A  Treatise  on  the  Law 
of  Copyright  and  Literary  Prop- 
erty" by  William  B.  Hale,  13 
Curpus  Juris.   1211-1218. 

§333g.  IIT.  S.  R.  S.,  §882, 
Pheland  v.  U.  S.,  C.  C.  A.,  249  Fed. 
43. 

2  Act  of  March  3,  1885,  ch,  340, 
23  St.  at  L.  362,  Comp.  St.  §  8943. 


1678  EVIDENCE  [§  333h 

"In  considering  claims  filed  under  the  pension  laws,  the  death 
of  an  enlisted  man  or  officer  shall  be  considered  as  sufficiently 
proved  if  satisfactory  evidence  is  produced  establishing  the  fact 
of  the  continued  and  unexplained  absence  of  such  enlisted  man 
or  officer  from  his  home  and  family  for  a  period  of  seven  years, 
during  which  period  no  intelligence  of  his  existence  shall  have 
been  received.  And  any  pension  granted  under  this  Act  shall 
cease  upon  proof  that  such  officer  or  enlisted  man  is  still  liv- 
ing. "^ 

"The  failure  of  any  pensioner  to  claim  his  pension  for  three 
years  after  the  same  shall  have  become  due  sliall  be  deemed 
presumptive  evidence  that  such  pension  has  legally  terminated 
by  reason  of  the  pensioner's  death,  remarriage,  recovery  from 
the  disability,  or  otherwise,  and  the  pensioner's  name  shall  be 
stricken  from  the  list  of  pensioners,  subject  to  the  right  of 
restoration  to  the  same  on  a  new  application  by  the  pensioner, 
or,  if  the  pensioner  is  dead,  by  the  widow  or  minor  children  en- 
titled to  receive  the  accrued  pension,  accompanied  by  evidence 
satisfactorily  accounting  for  the  failure  to  claim  such  pension, 
and  by  medical  evidence  in  cases  of  invalids  who  were  not  ex- 
empt from  biennial  examinations  as  to  the  continuance  of  the 
disability."* 

§333h.  Evidence  of  proceedings  before  the  Interstate  Com- 
merce Commission.  ' '  The  Interstate  Commerce  Commission  may 
provide  for  the  publication  of  its  reports  and  decisions  in  such 
form  and  manner  as  may  be  best  adapted  for  public  informa- 
tion and  use,  and  such  authorized  publications  shall  be  compe- 
tent evidence  of  the  reports  and  decisions  of  the  Commission 
therein  contained  in  all  courts  of  the  United  States  and  of  the 
several  States  without  any  further  proof  or  authentication 
thereof.  The  Commission  may  also  cause  to  be  printed  for 
early  distribution  its  annual  reports. ' '  ^ 

"The  copies  of  schedules  and  classifications  and  tariffs  of 
rates,  fares,  and  charges,  and  of  all  contracts,  agreements,  and 
arrangements  between  common  carriers  filed  with  the  Commis- 

3  Act  of  March  13,  1896,  ch.  54,  St.  at  L.  379,  §14,  as  amended 
29  St.  at  L.  57,  Comp.  St.  §  8978.  March  2,  1889,  25  St.  at  L.  855, 

4  U.  S.  R.  S.,  §  4719,  Comp.  St.  June  29,  1906,  34  St.  at  L.  584,  Feb. 
§  9018.  28,  1920,  41  St.  at  L.  491. 

§  333h.  1  Act  of  Feb.  4,  1887,  24 


§  333h]    INTERSTATE  COMMERCE   COMMISSION'S  PROCEEDINGS     1679 

sion  as  herein  provided,  and  the  statistics,  tables,  and  figures 
contained  in  the  annual  or  other  reports  of  carriers  made  to 
the  Commission  as  required  under  the  provisions  of  this  Act 
shall  be  preserved  as  public  records  in  the  custody  of  the  secre- 
tary of  the  Commission,  and  shall  be  received  as  prima  facie 
evidence  of  what  they  purport  to  be  for  the  purpose  of  investi- 
gations by  the  Commission  and  in  all  judicial  proceedings;  and 
copies  of  and  extracts  from  any  of  said  schedules,  classifications, 
tariffs,  contracts,  agreements,  arrangements,  or  reports,  made 
public  records  as  aforesaid,  certified  by  the  secretary,  under 
the  Commission's  seal,  shall  be  received  in  evidence,  with  like 
effect  as  the  originals."'^ 

By  the  Accident  Reports  Act,  ''It  shall  be  the  duty  of  the 
general  manager,  superintendent,  or  other  proper  officer  of 
every  common  carrier  engaged  in  interstate  or  foreign  com- 
merce by  railroad  to  make  to  the  Interstate  Commerce  Commis- 
sion, at  its  office  in  Washington,  District  of  Columbia,  a  monthly 
report,  under  oath  of  all  collisions,  derailments,  or  other  acci- 
dents resulting  in  injury  to  i)ersons,  equipment,  or  roabed 
arising  from  the  operation  of  such  railroad  under  such  rules 
and  regulations  as  may  be  prescribed  by  the  said  Commission, 
which  report  shall  state  the  nature  and  causes  thereof  and  tlie 
circumstances  connected  therewith:  Provided,  That  hereafter 
all  said  carriers  shall  be  relieved  from  the  duty  of  reporting  ac- 
cidents in  their  annual  financial  and  operating  reports  made 
to  the  Commission."  ^ 

"Any  common  carrier  failing  to  make  such  report  witliin 
thirty  days  after  the  end  of  any  month  shall  be  deemed  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof  by  a  court  of 
competent  jurisdiction  shall  be  punished  by  a  fine  of  not  more 
than  one  hundred  dollars  for  each  and  every  offense  and  for 
every  day  during  which  it  shall  fail  to  make  such  report  after 
the  time  herein  specified  for  making  the  same."* 

"The  Interstate  Commerce  Commission  shall  have  authority 
to  investigate  all  collisions,  derailments,  or  other  accidents  re- 

2  Ibid,      §16,      sub'd      (13)      as  3  Act    of    September    6,    1916,    36 

amended  March  2,  1889,  25  St.  at  L.       St.  at  L.  350,  §  1. 
855,  June  29,  1906,  34  St.  at  L.  584,  4Ibid,   §  2. 

June  18,  1910,  36  St.  at  L.  539,  Feb. 
28,  1920,  41  St.  at  L.  491. 


1680  EVIDENCE  [§  333h 

suiting  in  serious  injury  to  person  or  to  the  property  of  a  rail- 
road occurring  on  the  line  of  any  common  carrier  engaged  in 
interstate  or  foreign  commerce  by  railroad.     The  Commission, 
or  any  impartial  investigator  thereunto  authorized  by  said  Com- 
mission, shall  have  authority  to  investigate  such  collisions,  de- 
railments, or  other  accidents  aforesaid,  and  all  the  attending 
facts,  conditions,  and  circumstances,  and  for  that  purpose  may 
subpoena  witnesses,   administer  oaths,   take  testimony,  and  re- 
quire the  production  of  books,  papers,  orders,  memoranda,  ex- 
hibits, and  other  evidence,  and  shall  be  provided  by  said  car- 
riers with  all  reasonable  facilities:    Provided,  That  when  such 
accident  is  investigated  by  a  commission  of  the  State  in  which 
it  occurred,  the  Interstate  Commerce  Commission  shall,  if  con- 
venient, make  any  investigation  it  may  have  previously  deter- 
mined upon,  at  the  same  time  as,  and  in  connection  with,  the 
State  commission  investigation.     Said  Commission  shall,  when 
it  deems  it  to  the  public  interest,  make  reports  of  such  investi- 
gations, stating  the  cause  of  accident,  together  with  such  recom- 
mendations as  it  deems  proper.     Such  reports  shall  be  made 
public  in  such  manner  as  the  Commission  deems  proper."  ^ 

"That  neither  said  report  or  any  report  of  said  investiga- 
tion nor  any  part  thereof  shall  be  admitted  as  evidence  or  used 
for  any  purpose  in  any  suit  or  action  for  damages  growing  out 
of  any  matter  mentioned  in  said  report  or  investigation."^ 

"The  Interstate  Commerce  Commission  is  authorized  to  pre- 
scribe for  such  common  carriers  a  method  and  form  for  making 
the  reports  hereinbefore  provided. ' '  "^ 

By  the  Boiler  Inspection  Act,  "That  in  the  case  of  accident 
resulting  from  failure  from  any  cause  of  a  locomotive  boiler 
or  its  appurtenances,  resulting  in  serious  injury  or  death  to  one 
or  more  persons,  a  statement  forthwith  must  be  made  in  writ- 
ing of  the  fact  of  such  accident,  by  the  carrier  owning  or 
operating  said  locomotive,  to  the  chief  inspector ;  whereupon  the 
facts  concerning  such  accident  shall  be  investigated  by  the  chief 
inspector  or  one  of  his  assistants,  or  such  inspector  as  the  chief 
inspector  may  designate  for  that  purpose.  And  where  the  loco- 
motive is  disabled  to  the  extent  that  it  can  not  be  run  by  its 
own  steam,  the  part  or  parts  affected  by  the  said  accident  shall 

5  Ibid,  §3.  ■'Ibid,  §5. 

6  Ibid,   §4. 


§  333hJ    INTERSTATE  COMMERCE   COMMISSION'S  PROCEEDINGS      1681 

be  preserved  by  said  carrier  intact,  so  far  as  possible,  without 
hindrance  or  interference  to  traffic  initil  after  said  inspection. 
The  chief  inspector  or  an  assistant  or  the  designated  inspector 
making  the  investigation  shall  examine  or  cause  to  be  examined 
thoroughly  the  boiler  or  part  affected,  making  full  and  detailed 
report  of  the  cause  of  tlie  accident  to  the  chief  inspector, 

"The  Intel-state  Commerce  Commission  may  at  any  time  call 
upon  the  chief  inspector  for  a  report  of  any  accident  embraced 
in  this  section,  and  upon  the  receipt  of  said  report,  if  it  deems 
it  to  the  public  interest,  make  reports  of  such  investigations, 
stating  the  cause  of  accident,  together  with  such  recommenda- 
tions as  it  deems  proper.  Such  reports  shall  be  made  pul)lic  in 
such  manner  as  the  Commission  deems  proper.  Neither  said 
report  nor  any  report  of  said  investigation  nor  any  part  thereof 
shall  be  admitted  as  evidence  or  used  for  any  purpose  in  any 
suit  or  action  for  damages  growing  out  of  any  matter  mentioned 
in  said  report  or  investigation."  ^ 

In  the  case  of  investigations  to  determine  whether  there  has 
been  a  violation  of  the  Clayton  Anti-Trust  Act  made  by  the 
Interstate  Commerce  Commission  as  to  common  carriers,  by 
the  Federal  Reserve  Board  as  to  banks,  banking  associations, 
and  trust  companies,  and  by  the  Federal  Trade  Commission  "as 
to  all  other  character  of  commerce"  "Ihe  findings  of  the  Com- 
mission or  Board  as  to  the  facts,  if  supported  by  testimony, 
shall  be  conclusive."® 

In  a  suit  in  a  District  Court  to  collect  damages  awarded  by 
an  order  of  the  Interstate  Commerce  Commission  "The  findings 
and  order  of  the  Commission  shall  be  prima  facie  evidence  of 
the  facts  therein  stated."  i®  When  no  evidence  is  oflfered  except 
the  order  and  the  finding  of  the  Commission  which  supports 
such  order  there  is  a  prima  facie  ease,  in  favor  of  the  plaintiffs 
right  to   recover,!^   which   cannot  be  rejected  b}'   the   court   or 

8  Act  of  Feb.  17,  1911,  36  St.  at  1920,  41  St.  at  L.  456,  see  supra, 
L.  913,  §8.  §-2a. 

9  Act  of  Oct.  15,  1914,  §11,  38  H  Mills  v.  Lehigh  Valley  E.  R. 
St.  at  L.  730,  supra,  §§  32a,  77a.  Co.,  238  U.  S.  473;  St.  Louis,  S.  W. 

10  Act  of  Feb.  4,  1887,  §  16,  24  Ry.  Co.  v.  S.  Samuels  &  Co.,  C.  C. 
St.  at  L.  379,  as  amended  March  A.,  211  Fed.  588;  Clark  Bros.  Coal 
2,  1889,  25  St.  at  L.  855,  June  29,  Min.  Co.  v.  Pennsylvania  R.  Co.,  238 
1906,    34    St.    at    L.    584,    June    18,  Fed.  642. 

1910,    36    St.    at    L.    539,    Feb.    28, 


1682 


EVIDENCE 


[§  3;33i 


jury  in  the  absence  of  any  contervailing  evidence,!^  ))^^t  where 
the  evidence  before  the  Commission  is  offered  upon  the  trial 
the  court  can  inquire  whether  this  is  sufficient  to  justify  the 
order  and  if  not  should  direct  judgment  for  the  defendant.!^ 
Either  party  may  offer  additional  evidence.^*  The  omis- 
sion from  the  Commission's  report  of  the  evidential  or  pri- 
mary facts,  does  not  affect  its  force  as  creating  a  prwm  facie 
easels  The  finding  is  sufficient  if  it  discloses:  (1)  the  relation 
of  the  parties  as  shipper  and  carrier  in  interstate  commerce; 
(2)  the  character  and  amount  of  the  traffic  out  of  which  the 
claims  arose;  (3)  the  rates  paid  by  the  shipper  for  the  service 
rendered  and  whether  they  were  according  to  the  established 
tariff;  (4)  whether  and  in  what  way  unjust  discrimination  was 
practiced  against  the  shipper;  (5)  whether,  if  there  was  unjust 
discrimination,  the  shipper  was  injured  thereby,  and  if  so,  the 
amount  of  his  damages;  (6)  whether  the  rate  collected  from  the 
shipper  was  excessive  and  unreasonable,  and  if  so,  what  would 
have  been  a  reasonable  rate  for  the  service;  and  (7)  whether, 
if  the  rate  was  excessive  and  unreasonable,  the  shipper  was  in- 
jured thereby,  and  if  so,  the  amount  of  this  damage.^^ 

This  statute  does  not  authorize  the  admission  of  a  copy  of 
testimony  shown  by  a  report  of  the  Commission  to  have  been 
given  by  a  witness,  but  not  otherwise  authenticated.^'^ 

There  is  no  presumption  that  a  carrier  is  violating  the  law 
unless  the  evidence  justifies  such  an  inference  or  there  is  a  find- 
ing of  the  Commission  to  that  eft'eet.^^ 

§333i.  Evidence  of  official  correspondence.  "The  volume 
of  public  documents,  printed  by  authority  of  the  Senate  of 
the  United  States,  containing  letters  to  and  from  various  of- 


12  Meeker  v.  Lehigh  Valley  E.  R. 
Co.,  238  U.  S.  436,  439. 

13  Michigan  Cent.  E.  Co.  v.  Elliott, 
C.  C.  A.,  256  Fed.  78;  Pennsylvania 
R.  E.  Co.  V.  W.  F.  Jaeobi  &  Co.,  242 
U.  S.  89,  where  all  the  evidence  be- 
fore the  commission  was  not  before 
the  court. 

14  Missouri  Pae.  Ey.  Co.  v.  C.  E. 
Ferguson  Sawmill  Co.,  C.  C.  A.,  235 
Fed.  474. 

16  Meeker  &  Co.  v.  Lehigh  Valley 


R.  E.  Co.,  236  U.  S.  412;  Meeker 
&  Co.  V.  Lehigh  Valley  E.  E.,  236 
U.  S.  434;  Mills  v.  Lehigh  Valley 
E.  B.  Co.,  238  U.  S.  473,  reversing 
Lehigh  Valley  E.  E.  Co.  v.  Clark, 
C.  C.  A.,  207  Fed.  717. 

16  Mills    V.    Lehigh   Valley   R.    E. 
Co.,  238  U.  S.  473,  477. 

17  U.  S.  V.  Beading  Co.,  183  Fed. 
427. 

18  Cincinnati  &   Pac.   Ry.  v.  Ran- 
kin, 241  U.  S.  319. 


§  333k]  PROOF  OP  FEDERAL  STATUTES  1683 

ficers  of  state,  eommunicated  by  the  President  of  tlif  United 
States  to  the  Senate,  is  as  competent  evidence  as  the  original 
documents  themselves. ' '  ^ 

"The  design  and  meaning  of  this  rule  is  not  to  convert  in- 
competent and  irrelevant  evidence  into  competent  and  relevant 
evidence  simply  because  it  is  contained  in  an  official  communica- 
tion. Had  the  officer  been  testifying  under  oath,  such  an  asser- 
tion would  have  been  excluded  as  inadmissible,  upon  the  ground 
that  the  statement  itself  implied  the  existence  of  primary  and 
more  original  and  explicit  sources  of  information.  The  courts 
hold  this  rule  which  has  been  invoked  to  be  limited  to  only 
such  a  statement  in  official  documents  as  the  officers  are  bound 
to  make  in  the  regular  course  of  official  duty.  The  statement 
of  extraneous  or  independent  circumstances,  however  naturally 
they  may  be  deemed  to  have  a  place  in  the  narrative,  is  no  proof 
of  such  circumstances,  and  is  therefore  rejected."^ 

§333j.  Evidence  of  proceedings  of  Congress.  ''Extracts 
from  the  journals  of  the  Senate,  or  of  the  House  of  Representa- 
tives, and  of  the  executive  journal  of  the  Senate  when  the  in- 
junction of  secrecy  is  removed,  certified  by  the  secretary'  of  the 
Senate  or  by  the  clerk  of  the  House  of  Kejiresentatives,  shall 
be  admitted  as  evidence  in  the  courts  of  the  United  States,  and 
shall  have  the  same  force  and  effect  as  the  originals  would  have 
if  produced  and  authenticated  in  court."' ^  The  right  to  hold 
an  office  may  thus  be  proved.^ 

§333k.  Evidence  of  Federal  statutes.  "The  edition  of  the 
laws  and  treaties  of  the  United  States,  published  by  Little  & 
Brown,  shall  be  competent  evidence  of  the  several  public  and 
private  acts  of  Congress,  and  of  the  several  treaties  therein 
contained,  in  all  the  courts  of  law  and  equity  and  of  maritime 
jurisdiction,  and  in  all  the  tribunals  and  public  offices  of  the 
United  States,  and  of  the  several   States,  without  any  further 

§3.33i.     IWhiton    v.    Albany  Ins.  Field   v.  Clark,   143  U.   S.  649,  679, 

Co.,  109  Mass.  30.     Cf.  Doe  v.  Roe,  3C  L.  ed.   294,  305;    U.   S.   v.   Burr, 

13  Fla.  602.  159  U.   S.   78,  85,  40  L.  ed.  82,  84; 

2  U.  S.  V.  Corwin,   129  U.   S.  381,  Virginia  &  West  Virginia  Coal  Co., 

386,  32  L.  ed.  710,  711.     Cf.  The  251  Fed.  83,  112,  Conip.  St.  §1508. 

Ship  Parkman,  35  Ct.  CI.  406.  2  A'irginia   &   West    Virginia   Coal 

§333j.     lU.  S.  R.  S.,  §895.  See  Co.,  251  Fed.  83,  112. 


1684  EVIDENCE  [§  333k 

proof  of  authentication  thereof. "  ^  "  The  publication  by  the 
Government  printing  office  of  the  supplements  to  the  Revised 
Statutes  are  prima  facie  evidence  ^  and  the  publication  by  that 
office  of  the  pamphlet  copies  of  the  statutes  and  the  bound 
copies  of  the  acts  of  each  Congress  are  legal  evidence  of  the 
laws  and  treaties  therein  contained  in  all  courts  of  the  United 
States  and  of  the  several  States  therein.  "^ 

"The  Secretary  of  State  is  hereby  charged  with  the  duty  of 
causing  to  be  prepared  for  printing,  publication  and  distribu- 
tion the  revised  statutes  of  the  United  States  enacted  at  this 
present  session  of  Congress;  that  he  shall  cause  to  be  completed 
the  head  notes  of  the  sevetal  titles  and  chapters  and  the  mar- 
ginal notes  referring  to  the  statutes  from  which  each  section 
was  compiled  and  repealed  by  said  revision;  and  references  to 
the  decisions  of  the  courts  of  the  United  States  explaining  or 
expounding  the  same,  and  such  decisions  of  State  courts  as  he 
may  deem  expedient,  with  a  full  and  complete  index  to  the 
same.  And  when  the  same  shall  be  completed,  the  said  Secre- 
tary shall  duly  certify  the  same  under  the  seal  of  the  United 
States,  and  when  printed  and  promulgated  as  hereinafter  pro- 
vided, the  printed  volumes  shall  be  legal  evidence  of  the  laws 
and  treaties  therein  contained,  in  all  the  courts  of  the  United 
States,  and  of  the  several  States  and  Territories."* 

"That  the  certificate  to  the  printed  volume  of  the  revised 
statutes  of  the  United  Staes  required  by  section  two  of  "An  act 
providing  for  publication  of  the  revised  statutes  and  laws  of  the 
United  States,"  approved  June  twentieth,  eighteen  hundred 
and  seventy-four,  shall  be  made  by  the  Secretary  of  State  un-  ^ 
der  the  seal  of  the  Department  of  State,  and  so  much  of  said 
section  as  provides  that  such  certificate  shall  be  under  the  seal 
of  the  United  States,  is  hereby  repealed. ' '  ^ 

§333k.     lU.  S.  E.   S.,   §908.  ed.    957;    Taylor   v.   U.    S.,    3   How. 

2  28   St.   at  L.   601;   26  St.   at  L.  197,    11    L.    ed   559;    Buckley    v   U. 

50;    21   St.  at  L.   308.  S.,    4    How.    251,    11    L.    ed.    961; 

3U.    S.    E.    S.,    §909.      See    also  Cliquot 's   Champagne,   3   Wall.    114, 

Locke  V.  U.  S.,  7  Cranch,  339,  3  L.  18  L.  ed.  116;  U.  S.  v.  Walla  Walla, 

ed.    364;    The    Luminary,    8    Wheat.  44    Fed.    796;     The    Coquitlam,    57 

407,  5  L.   ed.   647;   Wood  v.   U.   S.,  Fed.  706,  714. 

16  Pet.  342,  10  L.  ed.  987;  The  John  4  Act  of  June  20,  1874,  18  St.  at 

Griffin,  15  Wall.   29,   21   L.   ed.   80;  L    113,  Pierce's  Fed.  Code,  §11230. 

Clifton  V.  U.  S.,  4  How.  242,  11  L.  5  An    act    providing    for    the    au- 


§  333  1]  CONSULAR  RECORDS  AND  CERTIFICATES  1685 

§  333 1.  Evidence  of  books  and  papers  in  consular  offices  and 
consular  certificates.  "Copies  of  ull  oflicial  documents  and 
papers  in  the  office  of  any  consul,  vice-consul,  or  commercial 
agent  of  the  United  States,  and  of  all  official  entries  in  the 
books  or  records  of  any  such  officer,  certified  under  the  hand  and 
seal  of  such  officer,  shall  be  admitted  in  evidence  in  the  courts 
of  the  United  States,  "i 

"The  Supervising  Surgeon-Cjieneral  of  the  Marine  Hospital 
Service  shall,  immediately  after  this  act  takes  effect,  examine 
the  quarantine  regulations  of  all  State  and  municipal  boards  of 
health,  and  shall,  under  the  direction  of  the  Secretary  of  the 
Treasury,  cooperate  with  and  aid  State  and  municipal  boards 
of  health  in  the  execution  and  enforcement  of  the  rules  and 
regulations  of  such  boards  and  in  the  execution  and  enforce- 
ment of  the  rules  and  regulations  made  by  the  Secretary  of  the 
Treasury  to  prevent  the  introduction  of  contagious  or  infectious 
diseases  into  the  United  States  from  foreign  countries,  and  into 
one  State  or  Territory  or  the  District  of  Columbia  from  another 
State  or  Territory  or  the  District  of  Columbia:  and  all  rules 
and  regulations  made  by  the  Secretary  of  the  Treasury  shall 
operate  uniformly  and  in  no  manner  discriminate  against  any 
port  or  place;  and  at  such  ports  and  places  within  the  United 
States  as  have  no  quarantine  regulations  under  State  or  nui- 
nicipal  authority,  where  such  regulations  are,  in  the  opinion 
of  the  Secretary  of  the  Treasury,  necessary  to  prevent  the  in- 
troduction of  contagious  or  infectious  diseases  into  the  United 
States  from  foreign  countries,  or  into  one  State  or  Territory 
or  the  District  of  Columbia  from  another  State  or  Territory  or 
the  District  of  Columbia,  and  at  such  ports  and  places  within 
the  United  States  where  quarantine  regulations  exist  under  the 
authority  of  the  State  or  municipality  which,  in  the  opinion  of 
the  Secretary  of  the  Treasury,  are  not  sufficient  to  prevent  the 
introduction  of  such  diseases  into  the  United  States,  or  into  one 
State  or  Territory^  or  the  District  of  Columbia  from  another 
State  or  Territory  or  the  District  of  Columbia,  the  Secretary  of 
the   Treasury   shall,   if   in   his   judgment    it    is   necessary   and 

thcntication   of  the  revised   statutes  December  28,  1874.     18  Stat.  L.  29.S, 

of   the  United   States   and   for   pre-  Pierce's  Fed.  Code,  §  112:U. 
serving  the  originals  of  all  laws  in  §33.31.     1  U.  S.  E.  S.,  §896;   The 

the  Department  of  State.    Approved  Atlantic,  Abbott 's  Adm.  451. 
Fed.  Prae.  Vol.  11—36 


1686  EVIDENCE  [§  3331 

proper,  make  such  additional  rules  and  regulations  as  are  nec- 
essary to  prevent  the  introduction  of  such  diseases  into  the 
United  States  from  foreign  countries,  or  into  one  State  or 
Territory  or  the  District  of  Columbia  from  another  State  or 
Territory  or  the  District  of  Columbia,  and  when  said  rules  and 
regulations  have  been  made  they  shall  be  promulgated  by  the 
Secretary  of  the  Treasury  and  enforced  by  the  sanitary  author- 
ities of  the  States  and  municipalities,  where  the  State  or  munici- 
\)a\  health  authorities  will  undertake  to  execute  and  enforce 
them ;  but  if  the  State  or  municipal  authorities  shall  fail  or 
refuse  to  enforce  said  rules  and  regulations  the  President  shall 
execute  and  enforce  the  same  and  adopt  such  measures  as  in  his 
judgment  shall  be  necessary  to  prevent  the  introduction  or 
spread  of  such  diseases,  and  may  detail  or  appoint  officers  for 
that  purpose.  The  Secretary  of  the  Treasury  shall  make  such 
rules  and  regulations  as  are  necessary  to  be  observed  by  vessels 
at  the  port  of  departure  and  on  the  voyage,  where  such  vessels 
sail  from  any  foreign  port  or  place  to  any  port  or  place  in  the 
United  States,  to  secure,  the  best  sanitary  condition  of  such 
vessel,  her  cargo  passengers,  and  crew ;  which  shall  be  pub- 
lished and  communicated  to  and  enforced  by  the  consular  of- 
ficers of  the  Ignited  States.  None  of  the  penalties  herein  im- 
posed shall  attach  to  any  vessel  or  owner  or  officer  thereof  until 
a  copy  of  this  act,  with  the  rules  and  regulations  made  in  pur- 
suance thereof,  has  been  posted  up  in  the  office  of  the  consul  or 
other  consular  officer  of  the  United  States  for  ten  days,  in  the 
port  from  which  said  vessel  sailed ;  and  the  certificate  of  such 
consul  or  consular  officer  over  his  official  signature  shall  be 
competent  evidence  of  such  posting  in  any  court  of  the  United 
States.  "2 

"All  masters  of  vessels  of  the  United  States,  and  bound  to 
some  port  of  the  same,  are  required  to  take  such  destitute  sea- 
man on  board  their  vessel,  at  the  request  of  consular  officers, 
and  to  transport  them  to  the  port  in  the  United  States  to  which 
such  vessel  may  be  bound,  on  such  terms,  not  exceeding  ten  dol- 
lars for  each  person  for  voyages  of  not  more  than  thirty  days, 
and  not  exceeding  twenty  dollars  for  each  person  for  longer 
voyages,  as  may  be  agreed  between  the  master  and  the  consular 

2  Feb.    15,    1893,    e.    114,    §3,    27 
Stat.  450,  Conip.  St.  §  9158. 


^3;]:]l]  CONSULAR  RECORDS   AM)  CKRTlhMCATES  lUST 

officer.  "When  the  transportation  is  hy  a  sailing  vessel;  and 
the  regular  steerage-passenger  rate,  not  to  exceed  two  cents  per 
mile,  when  the  transportation  is  by  steamer.  And  said  consular 
officer  shall  issue  certificates  for  such  transportation,  which  cer- 
tificates shall  be  assignable  for  collection.  If  any  such  destitute 
seaman  is  so  disabled  or  ill  as  to  be  unable  to  perform  duty,  the 
consular  officer  shall  so  certify  in  the  certificate  of  transporta- 
tion, and  such  additional  compensatioji  shall  be  paid  as  the 
First  Comptroller  of  the  Treasury  shall  deem  proper.  Every 
such  master  who  refuses  to  receive  and  transport  such  seamen 
on  the  request  or  order  of  such  consular  officer  shall  be  liable 
to  the  United  States  in  a  penalty  of  one  hundred  dollars  for 
each  seaman  so  refused.  The  certificate  of  any  such  consular 
officer,  given  under  his  hand  and  official  seal,  shall  be  pre- 
sumptive evidence  of  such  refusal  in  any  court  of  law  having 
jurisdiction  for  the  recovery-  of  the  penalty.  No  master  of  any 
vessel  shall,  however,  be  obliged  to  take  a  greater  number  than 
one  man  to  every  one  hundred  tons  burden  of  the  vessel  on  any 
one  voj'^age,  or  to  take  any  seaman  having  a  contagious  dis- 
ease. ' '  * 

The  certificate  of  a  consul  is  competent  evidence  to  prove 
his  official  acts,  but  not  acts  which  are  not  official  or  not  within 
his  personal  knowledge.*  The  consul's  certificate  is  competent 
to  prove  that  the  ship's  papers  were  lodged  with  him,^  that  a 
seaman  was  discharged  in  a  foreign  court  with  his  own  con- 
sent,^ and  when  it  sets  out  all  the  essential  facts  it  is  prima 
facie  evidence  that  a  master  violated  the  law  in  refusing  to 
receive  a  discharged  seaman  in  a  foreign  port.''  A  consular 
certificate  is  not  competent  to  prove  facts  to  justify  imprison- 
ment of  a  seaman  by  the  master  in  a  foreign  port,^  nor  to  au- 
thenticate the  record  of  the  condemnation  of  a  vessel  in  a  court 
of  vice-admiralty ;  ^  nor  to  prove  a  foreign  law  or  the  correct- 
ness of  a  translation ;  10  nor  to  prove  any  fact  between  third 

Sibid.  239.     Cf.  The  W.  F.  Babcock,  C.  C. 

4  Brown     v.     The     Independence,  A.,  85  Fed.  978. 

Crabbe,  54.  '  Catlett    v.    Pacific    Ins.    Co.,    1 

6U.  S.  V.  Mitchell,  2   Wash.  478.  Paine  594. 

6  Lamb  v.  Briard,  Abb.  Adm.  367.  10  Church   v.   Hubbard,   2   Cranch, 

7  Matthews  v.  Offly,  3  Sumn.  115.  187.  2  T..  od.  249. 

8  .Johnson    v.    Cariolanus,    Crabbe, 


1688  EVIDENCE  [§  333m 

persons,  unless  made  so  by  statute ;  ^^  nor  to  prove  a  copy  of  a 
bill  of  lading  in  another's  possession.^^  A  certificate  with  an 
undecipherable  seal  and  signature  is  not  admissible  in  evi- 
denced^ 

§  333in.  Evidence  of  state  and  territorial  statutes  and  public 
records,  "The  acts  of  the  legislature  of  any  State  or  Terri- 
tory, or  of  any  country  subject  to  the  jurisdiction  of  the  United 
States,  shall  be  authenticated  by  having  the  seals  of  such  State, 
Territory,  or  country  affixed  thereto.  "^ 

"All  records  and  exemplifications  of  books,  which  may  be 
kept  in  any  public  office  of  any  State  or  Territory,  or  of  any 
country  subject  to  the  jurisdiction  of  the  United  States,  not 
appertaining  to  a  court,  shall  be  proved  or  admitted  in  any 
court  or  office  in  any  other  State  or  Territory,  or  in  any  such 
country,  by  the  attestation  of  the  keeper  of  the  said  records  or 
books,  and  the  seal  of  his  office  annexed,  if  there  be  a  seal,  to- 
gether with  a  certificate  of  the  presiding  justice  of  the  court 
of  the  county,  parish,  or  district  in  which  such  office  may  be 
kept,  or  of  the  governor,  or  secretary  of  state,  the  chancellor 
or  keeper  of  the  great  seal,  of  the  State  or  Territory,  or  coun- 
try, that  the  said  attestation  is  in  due  form,  and  by  the  proper 
officers.  If  the  said  certificate  is  given  by  the  presiding  justice 
of  a  court,  it  shall  be  further  authenticated  by  the  clerk  or 
prothonotary  of  the  said  court,  who  shall  certify,  under  his 
hand  and  the  seal  of  his  office,  that  the  said  presiding  justice 
is  duly  commissioned  and  qualified;  or,  if  given  by  such  gov- 
ernor, secretary,  chancellor,  or  keeper  of  the  great  seal,  it  shall 
be  under  the  great  seal  of  the  State,  Territory,  or  country  afore- 
said in  which  it  is  made.  And  the  said  records  and  exemplifi- 
cations, so  authenticated,  shall  have  such  faith  and  credit  given 
to  them  in  every  court  and  office  within  the  United  States  as 
they  have  by  law  or  usage  in  the  courts  or  offices  of  the  State, 
Territory,  or  country,  as  aforesaid,  from  which  they  are 
taken.  "2    This  statute  does  not  apply  to  court  records.^ 

11 U.  S.  V.  Mitchell,  2  Wash.  478;  2  U.    S.    R.    S.,    §906;    Hodge    v. 

The  Aliee,  12  Fed.  923;  Stein  v.  Palms,  C.  C.  A.,  117  Fed.  396.  See 
Bowman,  13  Pet.  209,  10  L.  ed.  129;  also  Snyder  v.  Wise,  10  Pa.  St.  157; 
Levy  V.  Burley,  2  Sumn.  355.  Lawrence  v.   Gauntley,  Cheves   Law 

12  The  Aliee,  12  Fed.  923.  (S.  C.)   7;  King  v.  Dale,  2  111.  513 ; 

18  The  Atlantic,  Abb.  Adm.  451.  Henthorn  v.  Doe,   1   Blackf.    (Ind.) 

§333m.     lU.  S.  R.  S.,  §905.  157;  Russell  v.  Kearney,  27  Ga.  96; 


§  333n]   RECORDS  op  state  and  territorial  courts 


1689 


Where  a  deed  of  land  in  Texas  had  been  executed  in  accord- 
ance with  the  civil  laws  in  Louisiana,  and  a  copy  furnished  to 
the  grantee  as  a  second  original,  this  copy  was  admitted  in  evi- 
dence, upon  proof  by  the  witness  that   he   iiad  examined  the 
originals  on  file  in  the  notary's  book;  that  the  copy  was  a  true 
one ;  that  the  notary  before  whom  the  conveyance  was  executed 
was  dead;  that  the  witness  knew  the  handwriting,  which  was 
genuine;  that  the  witness  knew  the  handwriting  of  one  of  the 
subscribing   wiliicsses;   that    such   witness  was   dead;    and   that 
the   signature   of    such    subscribing   witness   was   genuine.*      A 
pardon  certified  under  the  great  seal  of  the  State  was  admitted 
in  evidence.^     A  copy  of  a  survey  certified  by  the  register,  by 
the  judge,  and  by  the  Secretary  of  State  under  the  great  seal, 
was  admitted  in  evidence.<5     The  clerk's  certificate  should  show 
that  the  judge  is  the  presiding  judge,  or  that  he  is  the  presiding 
judge  for  the  district 7 

§  333n.  Evidence  of  the  records  of  the  State  and  Territorial 
Caurts.  "The  records  and  judicial  proceedings  of  the  courts 
of  any  State  or  Territory,  or  of  any  such  country,  shall  be 
proved  or  admitted  in  any  other  court  within  the  United  States, 
by  the  attestation  of  the  clerk,  and  the  seal  of  the  court  an- 
nexed, if  there  be  a  seal,  together  with  a  certificate  of  the  judge, 
chief  justice,  or  presiding  magistrate,  that  the  said  attestation  is 
in  due  form.  And  the  said  records  and  judicial  proceedings,  so 
authenticated,  shall  have  such  faith  and  credit  given  to  them  in 
every  court  within  the  United  States  as  they  have  by  law  or 
usage  in  the  courts  of  the  State  from  which  they  are  taken."  ^ 
This  statute  applies  to  the  Federal  courts  as  well  as  to  the  State 
courts.^ 


Paca  V.  Dutton,  4  Mo.  371 ;  Kerr  v. 
Jackson,  28  Mo.  :n6;  Grant  v. 
Henry  Clay  Coal  Co.,  80  Pa.  St. 
208;  and  authorities  cited  in 
Bump's  Fed.  Proc,  617-619. 

3  Tarlton  v.  Briscoe,  1  A.  K. 
Marsh.  (Ky.)  67;  U.  S.  E.  S.,  §905; 
Snyder  v.  Wise,  10  Pa.  St.  157;  Law 
V.  Gaultney,  Chcves   (S.  C.)   Law,  7. 

4  White  V.  Bromley,  20  How.  235, 
250,  15  L.  ed.  886,  890. 

6  U.  S.  V.  Wilson,  Baldw.  78. 


eSmitli  V.  Kedden,  5  llarr.   (Del.) 

321. 

7  Paca  V.  Dutton,  4  Mo.  370. 

§  333n.  1  U.  S.  R.  S.,  §  905.  The 
cases  construing  this  section  of  the 
Revised  Statutes  are  very  numerous, 
and  may  be  found  collected  in 
Greenleaf  on  Evidence.  §§504-506. 

ZGormley  v.  Bunyan,  138  U.  S. 
623,  635,  34  L.  ed.  1086,  1090;  Mills 
V.  Duryee,  7  Cranch,  481,  3  L.  ed. 
411;  Gal]>in  v.  Page,  3  Saw.  93. 


1690 


EVIDENCE 


[§  333n 


Printed  copies  of  State  statutes  purporting  to  be  published 
by  authority  of  the  State  have  been  held  to  be  prima  facie  evi- 
dence in  the  courts  of  the  United  States.^ 

It  will  be  presumed  that  the  seal  of  a  State  was  annexed  to 
a  paper  by  the  proper  officer  under  due  authority.*  The  cer- 
tificate must  show  that  the  person  who  signed  it  as  judge  was, 
when  he  signed  it,  the  judge,  chief  justice,  or  presiding  magis- 
trate of  the  court  in  which  the  judgment  is  of  record.^  If  the 
laws  of  a  State  show  that  the  court  in  which  the  judgment  was 
rendered  consisted  of  but  a  single  judge,  it  is  not  material  in 
a  Federal  court  that  the  certificate  to  the  attestation  of  the  clerk 
did  not  show  that  the  certifying  officer  was  the  sole  judge,  chief 
justice,  or  presiding  magistrate.^  The  certificate  of  the  judge 
that  he  is  ''one  of  the  judges"  of  the  court  is  insufficient."^  The 
judge  should  certify  that  the  attestation  is  in  due  form  accord- 
ing to  the  laws  of  the  State.^  If  a  clerk  of  a  court  certifies  at 
the  foot  of  a  paper  which  purports  to  be  a  record  that  the  fore- 
going is  truly  taken  from  the  record  of  proceedings  of  his  court, 
and  if  the  judge,  chief  justice,  or  presiding  magistrate  certifies 
that  such  attestation  of  the  clerk  is  in  due  form  of  law,  it  is  to 
be  presumed  that  the  paper  so  certified  is  in  due  form,  and  is 
a  full  copy  of  the  proceedings  in  the  case,  and  is  admissible  in 
evidence;  but  if  it  proves  to  be  a  mere  transcript  of  minutes 
taken  from  the  docket  of  the  court,  it  is  not  admissible.^ 

If  a  judgment  has  been  recovered  against  a  corporation  by 
a  wrong  name,  there  may  be  a  recovery  in  a  suit  on  such  judg- 
ment in  anotlier  suit  brought  against  it  by  the  proper  name.*" 

This  statute  does  not  prevent  the  admission  of  evidence  to 
prove  that  the  court,  which  rendered  the  judgment  had  no  juris- 
diction over  the  person  or  subject  matter.^^ 


3  Beatrice  v.  Edmiiison,  C.  C.  A., 
117  Fed.  427. 

4  United  States  v.  Johns,  4  Dall. 
412,  1  L.  cd.  888;  s.  c,  1  Wash. 
.363;  U.  S.  V.  Amedy,  11  Wheat. 
392,  6  L.   ed.  502. 

5  Stewart  v.  Gray,  Hemps.  94;  U. 
S.  V.  Biebusch.  1  MeCrary,  42,  32. 

6  Bennett  v.  Bennett,  Deady,  299. 
See  Bohlander  v.  Heikes,  C.  C.  A., 
(April   8,   1909)    Fed.  167. 


7  Stewart  v.  Oray,  Hemps.  94 ; 
Gardner  v.  Lindo,  1  Cranch,  C.  C.  78. 

8  Craig  T.  Brown,  Pet.,  0.  C.  352. 

9  Ferguson  v.  Harwood,  7  Cranch, 
408,  3  L.  ed.  386.  Cf.  Woodbridge  & 
T.  Eng.  Co.  V.  Bitter,  70  Fed.  677. 

10  La  Fayette  Ins.  Co.  v.  French, 
18  How.  404,  15  L.  ed.  451. 

11  Cooper  V.  Brazelton,  C.  C.  A., 
135  Fed.  476,  suprn,  §187. 


§  ;«3oj 


RECORDS  Of   FEDERAL  COURTS 


1G91 


The  statute  does  not  provide  for  the  authenticatiou  of  judi- 
cial proceedings  in  foreign  countries.^^  A  certified  copy  of 
what  purported  to  be  a  judgment  entered  by  a  court  of  British 
Columbia  was  not  admitted  when  authenticated  only  by  the 
certificate  of  the  district  registrar  together  with  an  impress  of 
what  purported  to  be  a  seal  of  the  court  and  a  certificate  of 
the  consul  general  of  the  United  States,  that  the  registrar  was 
duly  appointed  as  such." 

§  333o.  Evidence  of  the  records  of  the  Federal  Courts.  \\  here 
llic  statutes  are  silent,  the  record  of  a  Federal  court   is  proved 
hy  the  original,  or  by  Ihe  production  of  a  copy  certified  by  the 
cierk  to  be  correct  under  the  court  seal,i  or  by  a  copy  sworn  to 
he  correct  by  a  witness  who  has  compared  it  with  the  orignial.^ 
"The  clerk  of  every  court  shall  give  bond,  in  a  sum  to  be  fixed 
and  with  sureties  to  be  approved  by  the  court  which  appoints 
him   faithfully  to  discharge  the  duties  of  his  office,  and  season- 
ably to  record  the  decrees,  judgments,  and  determinations  of 
the  court  of  which  he  is  clerk;  and  a  new  bond  may  be  required 
whenever  the   court   deems   proper   that   such   bond  should  be 
cviven      A  copy  of  every  bond  given  by  a  clerk  shall  be  entered 
on  the  journal  of  the  court  for  which  he  is  appointed,  and  the 
hond  shall  be  deposited  for  safe-keeping  as  the  court  may  di- 
rect.    A  certified  <-opy  of  such  entry  shall  be  prima  facie  proot 
of  the  execution  of  such  bond  and  of  the  contents  thereof."  » 

••The  transcripts  into  new  books,  made  by  the  clerks  of  the 
District  Courts  in  the  several  districts  of  Texas,  Florida,  Wis- 
consin, Minnesota,  Iowa,  and  Kansas,  in  pursuance  of  the  act  of 
June  twenty-seven,  eighteen  hundred  and  sixty-four,  chapter 
one  hundred  and  sixty-five,  from  the  records  and  journals  trans- 
ferred bv  them  respectively,  under  the  said  act,  to  the  clerks 


12  American  Suioty  Co.  of  New 
York  V.  SaiidVierg,  225  Fed.  150. 

13  Ibid. 

§  3330.  1  Kalloch  v.  HoaKland,  C. 
(;.  A.,  239  Fed.  2.")2 ;  Pazier  v.  West- 
cott, '26  N.  Y  14«;  Buller's  Nisi 
Pniis,  226b,  228;  Cowenn  &  Hill's 
v(\.  of  Phillips  on  Evidence,  Vol.  II, 
p.  346;  Greeiileaf  on  Evidence,  Vol. 
I,  §§588,  501;  Chase's  ed.  of  Stev- 
en's on  Evidence,  Art.  77. 


2  Kalloch  V.  Hoagland,  C.  C.  A., 
2.'?9  Fed.  252;  Doe  v.  Ross,  7  M.  & 
W.  106;  Hubbell  v.  Meigs,  ."^O  X.  Y. 
480;  Coweuu  &  Hill's  ed.  of  Phillips 
on  Evidence,  Vol.  II,  p.  344;  Chasers 
ed.  of  Stephen  on  Evidence,  Art.  75. 
Greenleaf  on  Evidence,  Vol.  I,  §  485. 

3  U.  S.  R.  S.,  §  795,  Comp.  St. 
§  1322. 


1692  EVIDENCE  [§  333o 

of  the  Circuit  Courts  in  the  said  districts,  when  certified  by  the 
clerks  respectively,  making  the  same  to  be  full  and  true  copies 
from  the  original  books,  shall  have  the  same  force  and  effect  as 
records  as  the  originals.  And  the  certificates  of  the  clerks  of 
said  Circuit  Courts,  respectively,  of  transcripts  of  any  of  the 
books  or  papers  so  transferred  to  them,  shall  be  received  in  evi- 
dence with  the  like  effect  as  is  made  by  the  clerk  of  the  court 
in  which  the  proceedings  were  had. ' '  * 

"The  transcripts  into  new  books  made  by  the  clerks  of  the 
Circuit  and  District  Courts  for  the  western  district  of  North 
Carolina,  in  pursuance  of  the  act  of  June  four,  eighteen  hun- 
dred and  seventy-two,  chapter  two  hundred  and  eighty-two, 
when  certified  by  the  clerks  respectively,  making  the  same  to  be 
full  and  true  copies  from  the  original  books,  shall  have  the  same 
force  and  effect  as  records  as  the  originals.  And  the  certificates 
of  the  clerks  of  said  Circuit  and  District  Courts  respectively, 
of  transcripts  of  any  of  the  said  transcribed  records,  shall  also 
be  received  in  evidence  with  the  like  effect  as  if  made  by  the 
proper  clerk  from  the  originals  from  which  such  records  were 
transcribed. ' '  ^ 

"When  the  record  of  any  judgment,  decree,  or  other  pro- 
ceeding of  any  court  of  the  United  States  is  lost  or  destroyed, 
any  party  or  person  interested  therein  may,  on  application  to 
such  court,  and  on  showing  to  its  satisfaction  that  the  same 
was  lost  or  destroyed  without  his  fault,  obtain  from  it  an  order 
authorizing  such  defect  to  be  supplied  by  a  duly  certified  copy 
of  the  original  record,  where  the  same  can  be  obtained ;  and  such 
certified  copy  shall  thereafter  have,  in  all  respects,  the  same 
effect  as  the  original  record  would  have  had."^  "When  any 
such  record  is  lost  or  destroyed,  and  the  defect  cannot  be  sup- 
plied as  provided  in  the  preceding  section,  any  party  or  person 
interested  therein  may  make  a  written  application  to  the  court 
to  which  the  record  belonged,  verified  by  aiSdavit,  showing  such 
loss  or  destruction ;  that  the  same  occurred  without  his  fault  or 
neglect;  that  certified  copies  of  such  record  cannot  be  obtained 
by  him;  and  showing  also  the  substance  of  the  record  so  lost 

4  U.  S.  E.  S.,  §  897.  Williams,   20    Wall.    226,   22   L.    ed. 

5  U.   S.  E.   S.,   §  898.  254. 

6  U.    S.    E.    S.,    §  899 ;    Cornett   v. 


§  333o]  RECORDS  OF  FEDERAL  COURTS  1693 

or  destroj'ed,  and  that  the  loss  or  destruction  thereof,  unless 
supplied,  will  or  may  result  in  damage  to  him.  The  court  shall 
cause  said  application  to  be  entered  of  record,  and  a  copy  of  it 
shall  be  served  personally  upon  every  person  interested  therein, 
together  with  a  written  notice  that  on  a  day  therein  stated, 
which  shall  not  be  less  than  sixty  days  after  such  service,  said 
application  will  be  heard;  and  if,  upon  such  hearing,  the  court 
is  satisfied  that  tlie  statements  contained  in  the  application  are 
true,  it  shall  make  the  cause  to  be  entered  of  record  an  order 
reciting  the  substance  and  effect  of  said  lost  or  destroyed  record. 
Said  order  shall  have  the  same  effect,  so  far  as  concerns  the 
party  or  person  making  such  application  and  the  persons  served 
as  above  provided,  but  subject  to  intervening  rights,  which  the 
original  record  would  have  had,  if  the  same  had  not  been  lost  or 
destroyed. ' '  "^ 

"When  any  cause  has  been  removed  to  the  Supreme  Court, 
and  the  original  record  thereof  is  afterward  lost,  a  duly  cer- 
tified copy  of  the  record  remaining  in  said  court  may  be  filed 
in  the  court  room  from  which  the  cause  was  removed,  on  mo- 
tion of  any  party  or  person  claiming  to  be  interested  therein ; 
and  the  copy  so  filed  shall  have  the  same  effect  as  the  original 
record  would  have  had  if  the  same  had  not  been  lost  or  de- 
stroyed." ' 

"In  any  proceedings  in  conformity  with  law  to  restore  the 
records  of  any  court  of  the  United  States  which  have  been  or 
may  be  hereafter  lost  or  destroyed,  the  notice  required  may  be 
served  on  any  non-resident  of  the  district  in  which  .such  court 
is  held  anywhere  within  the  jurisdiction  of  the  United  States, 
or  in  any  foreign  country,  the  proof  of  service  of  such  notice, 
if  made  in  a  foreign  country,  to  be  certified  by  a  minister  or 
consul  of  the  United  States  in  such  country,  under  his  official 
seal.  "9 

"A  certified  copy  of  the  official  return,  or  any  other  official 
paper  of  the  United  States  attorney,  mar.shal,  or  clerk,  or  otlier 
certifying  or  recording  officer  of  any  court  of  the  United  States, 
made  in  pursuance  of  law,  and  on  file  in  any  department  of 
the  government,  relating  to  any  cause  or  matter  to  which  the 
United  States  was  a  party   in   any  such  court,   the  record  of 

7  U.  S.  R.  S.,  §  900.  9  U.   S.   R.   S.,    §  902,   as  amcnaed 

8  U.  S.  R.  S.,  §  901.  by  20  St.  at  L.  277. 


1694  EVIDENCE  [  §  333p 

which  has  been  or  may  be  lost  or  destroyed,  may  be  filed  in  the 
court  to  which  it  appertains,  and  shall  have  the  same  force  and 
effect  as  if  it  were  an  original  report,  return  paper,  or  other 
document  made  to  or  filed  in  such  court;  and  in  any  case  in 
which  the  names  of  the  parties  and  the  date  and  amount  of 
judgment  or  decree  shall  appear  from  such  return  paper,  or 
document,  it  shall  be  lawful  for  the  court  in  which  they  are  filed 
to  issue  the  proper  process  to  enforce  such  decree  or  judgment, 
in  the  same  manner  as  if  the  original  record  remained  in  said 
court.  And  in  all  cases  where  any  of  the  files,  papers,  or  rec- 
ords of  any  court  of  the  United  States  have  been  or  shall  be  lost 
or  destroyed,  the  files,  records,  and  papers  which,  pursuant  to 
law,  may  have  been  or  may  be  restored  or  supplied  in  place  of 
such  records,  files,  and  papers,  shall  have  the  same  force  and 
effect  to  all  intents  and  purposes,  as  the  originals  thereof  would 
have  been  entitled  to. ' '  i® 

"Whenever  any  of  the  records  or  files  in  which  the  United 
States  are  interested  of  any  court  of  the  United  States  have 
been  or  may  be  lost  or  destroyed,  it  shall  be  the  duty  of  the 
attorney  of  the  United  States  for  the  district  or  court  to  which 
such  files  and  records  belong,  so  far  as  the  judges  of  such  courts 
respectively  shall  deem  it  essential  to  the  interests  of  the  United 
States  that  sucli  records  and  files  be  restored  or  supplied,  to 
take  such  steps,  under  the  direction  of  said  judges,  as  may  be 
necessary  to  effect  such  restoration  or  substitution,  including 
such  dockets,  indices,  and  other  books  and  papers  as  said  judges 
shall  think  proper.  Said  judges  may  direct  the  performance, 
by  clerks  of  said  courts  respectively  and  by  the  United  States 
attorneys,  of  any  duties  incident  thereto;  and  said  clerks  and 
attorneys  shall  be  allowed  such  compensation,  for  services  in  the 
matter  and  for  lawful  disbursements,  as  may  be  approved  by 
the  Attorney-General  of  the  United  States,  upon  a  certificate  by 
the  judges  of  said  courts  stating  that  such  claim  for  services 
and  disbursements  is  just  and  reasonable:  and  the  sum  so  al- 
lowed shall  be  paid  out  of  the  judiciary  fund."^^ 

§333p.  Presumptions  in  suits  under  the  anti-trust  laws. 
Whei'e  the  statutes  are  silent  the  presumption  of  innocence  pre- 

10  U.   S.  E.  S.,  §903,  as  amended  11  U.  S.  B.  S.,   §904,  as  amended 

by   20   St.   at   L.    277.  hj  20   St.    at   L.    277. 


§  333q]  presu:mi'tions  under  prohibition  law  1695 

vails;  ^  and  tlic  huidni  of  i)roof  is  upon  the  plaintiff  to  .show- 
that  the  corporation  lias  actod  in  violation  of  the  law.^ 

Jn  proceedings  iji  a  Circuit  Court  of  Appeals  by  the  Inter- 
state Commerce  Commission,  the  P>deral  Keserve  Board  or  the 
Federal  Trade  Commission  1o  enforce  an  order  recjuiring  a  per- 
son to  seize  and  to  desist  from  unlawful  discrimination  in  price 
in  the  course  of  Interstate  or  foreign  commerce  sold  for  use, 
consumption  of  re-sale  within  a  place  under  the  jurisdiction  of 
the  United  States  or  to  divest  itself  of  stock  held  in  violation  of 
the  Claj-ton  Anti-Trust  Act  or  rid  itself  of  directors  ineligible 
under  that  act,  "the  findings  of  the  Commission  or  board  as  to 
the  facts,  if  supi)()i'1ed  by  testimony,  shall  be  conclusive."^ 

Hy  the  act  of  October  15,  1914,  "A  final  judgment  or  decree 
hereafter  rendered  in  any  criminal  prosecution  or  in  any  suit  or 
proceeding  in  equity  brought  by  or  on  behalf  of  the  United 
States  undei-  the  aiiti-ti'ust  laws-  shall  be  prima  facie  evidence 
against  such  defendant  in  any  suit  or  jn-oceeding  brought  by 
any  other  party  against  such  defendant  under  said  laws  as  to 
all  matters  respecting  which  said  judgment  or  decree  would  be 
an  estoppel  as  between  the  parties  thereto:  Provided,  This  sec- 
tion shall  not  apply  to  consent  judgments  or  decrees  entered 
before  any  testimon^^  has  been  taken:  Provided  further,  This 
section  shall  not  apply  to  consent  judgments  or  decrees  rendered 
in  criminal  proceedings  or  suits  in  ecpity  now  pending,  in  which 
the  taking  of  testimony  has  been  commenced  but  has  not  been 
concluded,  jirovided  such  judgments  or  decrees  are  rendered 
before  any  further  testimony  is  taken."* 

Before  this  statute,  a  judgment  against  a  defendant  in  a  pro- 
ceeding instituted  liy  the  United  States  could  not  be  offered  in 
evidence  \n  a  suit  l)y  an  individual  against  him.^  The  statute 
does  not  appl.v  to  acts  committed  before  its  enactment.^ 

§  333q.  Fresumptions  under  the  prohibition  law.  "After 
February  1,  1920,  the  possession  of  liquors  by  any  person  not 

S  :{:{;i|>.     l  CiiuMiniati,      New      Or-  §t  o,    :iS    St.    at     L.    7;{1,    I'oiiip.    St. 

U'fins  &  Texas  Pa"-.   Uy.  Co.  v.  Kau-  S  88;^.jc.     Sec  supra,  i  15hi. 

kin,  241  tl.  S.  ;ai).  6  Buckeye  Powder  Co.  v.  E.  I.  Dn 

2  II, id.  pout  De   Neuiours   Powder   Co.,   248 

3A.t    ol'    O.toher    T.j,    JtU4,    §11,  V.   S.   55. 

:i8  St.  at   L.  7;!0.     See  supra.  §  77g.  6  Il.id. 

4  .v.  t  of  October   l."3,  1914,  cli.  .32:5, 


1696  EVIDENCE  [§333r 

legall}^  permitted  under  this  title  to  possess  liquor  shall  be 
prima  facie  evidence  that  such  liquor  is  kept  for  the  purpose  of 
being  sold,  bartered,  exchanged,  given  away,  furnished,  or 
otherwise  disposed  of  in  violation  of  the  provisions  of  this 
title."! 

The  claimant  of  a  lien  upon  property  seized  under  the  stat- 
ute ^  must  establish  his  claim  by  competent  evidence.' 

§  333r.  Presumptions  as  to  citizenship,  expatriation  and  un- 
lawful entry  into  the  United  States.  "If  any  alien  who  shall 
have  secured  a  certificate  of  citizenship  under  the  provisions 
of  the  Naturalization  Law  shall,  within  five  years  after  the  issu- 
ance of  such  certificate,  return  to  the  country  of  his  nativity, 
or  go  to  any  other  foreign  country,  and  take  permanent  resi- 
dence therein,  it  shall  be  considered  prima  facie  evidence  of  a 
lack  of  intention  on  the  part  of  such  alien  to  become  a  perma- 
nent citizen  of  the  United  States  at  the  time  of  filing  his  appli- 
cation for  citizenship,  and,  in  the  absence  of  countervailing  evi- 
dence, it  shall  be  sufificient  in  the  proper  proceeding  to  authorize 
the  cancellation  of  his  certificate  of  citizenship  as  fraudulent, 
and  the  diplomatic  and  consular  officers  of  the  United  States  in 
foreign  countries  shall  from  time  to  time,. through  the  Depart- 
ment of  State,  furnish  the  Department  of  Justice  with  the 
.names  of  those  within  their  respective  jurisdictions  who  have 
such  certificates  of  citizenship  and  who  have  taken  permanent 
residence  in  the  countrj-  of  their  nativity,  or  in  any  other  for- 
eign country,  and  such  statements,  duly  certified,  shall  be  ad- 
missible in  evidence  in  all  courts  in  proceedings  to  cancel  cer- 
tificates of  citizenship. 

"Whenever  any  certificate  of  citizenship  shall  be  set  aside 
or  canceled,  as  herein  provided,  the  court  in  which  such  judg- 
ment or  decree  is  rendered  shall  make  an  order  canceling  such 
certificate  of  citizenship  and  shall  send  a  certified  copy  of  such 
order  to  the  Bureau  of  Immigration"  and  Naturalization;  "and 
in  case  such  certificate  was  not  originally  issued  by  the  court 
making  such  order  it  shall  direct  the  clerk  of  the  court  to  trans- 
mit a  copy  of  such  order  and  judgment  to  the  court  out  of 
which  such  certificate  of  citizenship  shall  have  been  originally 

§  333q.     1  Ch.  885,  §  36,  Comp.  St.  2  Ihid,  §  26. 

§  10136i/2t.  3  U.  S.  V.  Masters,  264  Fed.  250. 


§  333r]PRESUMPTIONS   OF   CITIZENSHIP   AND   UNLAWFUL   ENTRY1697 

issued.  And  it  shall  thereupon  be  the  duty  of  the  elerk  of  the 
court  receiving  such  certified  copy  of  tlic  order  and  judgment  of 
the  court  to  enter  the  same  of  record  and  to  cancel  such  original 
certificate  of  citizenshij)  upon  the  records  and  to  notify  the 
Bureau  of  Immigration"  and  Naturalization  "of  such  cancella- 
tion. 

"The  provisions  of  this  section  shall  apply  not  only  to  cer- 
tificates of  citizenship  issued  under  the  provisions  of  this  Act, 
but  to  all  certificates  of  citizenship  which  may  have  been  issued 
heretofore  by  any  court  exercising  jurisdiction  in  naturalization 
proceedings  under  prior  laws.  "^ 

"Any  American  citizen  shall  be  deemed  to  have  expatri- 
ated himself  when  he  has  been  naturalized  in  any  foreign  state 
in  conformity  with  its  laws,  or  when  he  has  taken  an  oath  of 
allegiance  to  any  foreign  state. 

"When  any  naturalized  citizen  shall  have  resided  for  two 
years  in  the  foreign  state  from  which  he  came,  or  for  five  years 
in  any  other  foreign  state  it  shall  be  presumed  that  he  ha^ 
ceased  to  be  an  American  citizen,  and  the  place  of  his  general 
abode  shall  be  deemed  his  place  of  residence  during  said  years : 
Provided,  however,  That  such  presumption  may  be  overcome  on 
the  presentation  of  satisfactory  evidence  to  a  diplomatic  or 
consular  officer  of  the  ITnited  States,  under  such  rules  and  regu- 
lations as  the  Department  of  State  may  prescribe:  And  pro- 
vided also,  That  no  American  citizen  shall  be  allowed  to  ex- 
patriate himself  when  this  country  is  at  war."^ 

When  an  alien  is  admitted  by  the  Secretary  of  Commerce 
and  Labor  under  bond  it  will  be  presumed  that  the  matter  came 
before  the  Secretary  in  the  regiilar  course  of  official  business 
and  that  the  Secretary  acted  in  conformity  to  law.^ 

By  the  Chinese  Exclusion  Act  of  :May  5,  1892,  "Any  Chinese 
person  or  person  of  Chinese  descent  arrested  under  the  provi- 
sions of  this  act  or  the  acts  hereby  extended  shall  be  adjudged 
to  be  unlawfully  within  the  United  States  unless  such  person 
shall  establish,  by  affirmative  proof,  to  the  satisfaction  of  such 

§333r.     lAct   of   June    29,    1906,  §2,    34    St.    at    L.    1228,    Comp.    St. 

ch.    3592,    §  15,    34    St.    at    L.    601,  §  3959. 

Comp.  St.  §  4374.    See  supra,  §  151b.  3  Norddcntsiher  Lloyd  v.  U.  S.,  C. 

2  Act  of  March  2,  1907,  ch.  2534,  C.  A.,  213  Fed.  10. 


1698  EVIDENCE  [§  333r 

justice,  judge,  or  commissioner,  his  lawful  right  to  remain  in  the 
United  States."* 

By  the  Act  of  February  5,  1917,  for  the  deportation  of  cer- 
tain classes  of  aliens,  "The  management  of  a  house  of  prostitu- 
tion or  practicing  prostitution  after  such  alien  shall  have  en- 
tered the  United  States,  or  who  shall  receive,  share  in,  or  derive 
benefit  from  any  part  of  the  earnings  of  any  prostitute;  any 
alien  who  manages  or  is  employed  by,  in,  or  in  connection  with 
any  house  of  prostitution  or  music  or  dance  hall  or  other  place 
of  amusement  or  resort  habitually  frequented  by  prostitutes, 
or  where  prostitutes  gather,  or  who  in  any  way  assists  any  pros- 
titute or  protects  or  promises  to  protect  from  arrest  any  prosti- 
tute ;  any  alien  who  shall  import  or  attempts  to  import  any  per- 
son for  the  purpose  of  prostitution  or  for  any  other  immoral 
purpose;  any  alien  who,  after  being  excluded  and  deported  or 
arrested  and  deported  as  a  prostitute,  or  as  a  procurer,  or  as 
having  been  connected  with  the  business  of  prostitution  or  im- 
l^ortation  for  prostitution  or  other  immoral  purposes  in  any  of 
the  ways  hereinbefore  specified,  shall  return  to  and  enter  the 
United  States ;  any  alien  convicted  and  imprisoned  for  a  viola- 
tion of  any  of  the  provisions  of  section  four  hereof;  any  alien 
who  was  convicted,  or  who  admits  the  commission,  prior  to 
entry,  of  a  felony  or  other  crime  or  misdemeanor  involving 
moral  turpitude;  at  any  time  within  three  years  after  entry, 
any  alien  who  shall  have  entered,  the  United  States  by  water 
at  any  time  or  place  other  than  as  designated  by  immigration 
officials,  or  by  land  at  any  place  other  than  one  designated  as 
a  port  of  entry  for  aliens  by  the  Commissioner  General  of  Im- 
migration, or  at  any  time  not  designated  by  immigration  of- 
ficials, or  who  enters  without  inspection,  shall,  upon  the  war- 
rant of  the  Secretary  of  Labor,  be  taken  into  custody  and  de- 
ported: Provided,  That  the  marriage  to  an  American  citizen 
of  a  female  of  the  sexually  immoral  classes  the  exclusion  or 
deportation  of  which  is  prescribed  by  this  Act  shall  not  invest 
such  female  with  Ignited  States  citizenship  if  the  marriage  of 
such  alien  female  shall  be  solemnized  after  her  arrest  or  after 
llic   commission   of  acts   which   make  her   liable   to   deportation 

4.  Aet  of  May  5,  1892,  ch.  60,  §  :!, 
27  St.  at  L.  2.5,  Pierce's  Fed.  Code, 
§  4822. 


§  33lir]l'RESUMrTI(>N.S   of    CITIZENSHII'    AM)    rSLAWFl'L    KNTRV169!) 

under  this  Act :  Provided  further,  That  the  provision  of  tliis 
section  respecting  the  deportation  of  aliens  convicted  of  a 
crime  involving  moral  turpitude  shall  not  apply  to  one  who  has 
been  pardoned,  nor  shall  such  deportation  be  made  or  directed 
if  the  court,  or  judge  thereof,  sentencing  such  alien  for  such 
crime  shall,  at  the  time  of  imposing  judgment  or  passing  sen- 
tence or  within  thirty  daj's  thereafter,  due  notice  having  first 
been  given  to  representatives  of  the  State,  make  a  recommenda- 
tion to  the  Secretary  of  Labor  that  such  alien  shall  not  be  de- 
ported in  pursuance  of  this  Act ;  nor  shall  any  alien  convicted 
as  aforesaid  be  deported  until  after  the  termination  of  his  im- 
prisonment :  Provided  further,  That  the  provisions  of  this  sec- 
tion, with  the  exceptions  hereinbefore  noted,  shall  be  applicable 
to  the  classes  of  aliens  therein  mentioned  irrespective  of  the 
time  of  their  entry  into  the  United  States:  Provided  further. 
That  the  provisions  of  this  section  shall  also  apply  to  the  cases 
of  aliens  who  come  to  the  mainland  of  the  United  States  from 
the  insular  possessions  thereof:  Provided  further,  That  any 
person  who  shall  be  arrested  under  the  provisions  of  this  sec- 
tion, on  the  ground  that  he  has  entered  or  been  found  in  the 
United  States  in  violation  of  any  other  law  thereof  which  im- 
poses on  such  person  the  burden  of  proving  his  right  to  enter 
or  remain,  and  who  shall  fail  to  establish  the  existence  of  the 
right  claimed,  shall  be  deported  to  the  place  specified  in  such 
other  law.  In  every  case  where  any  person  is  ordered  deported 
from  the  United  States  under  the  provisions  of  this  Act,  or  of 
any  law  or  treaty,  the  decision  of  the  Secretary  of  Labor  shall 
be  final.  "5 

"In  order  to  the  faithful  execution  of  the  provisions  of  this 
act,  every  Chinese  person,  other  than  a  laborer,  who  may  be 
entitled  by  said  treaty  or  this  act  to  come  within  the  United 
States,  and  who  shall  be  about  to  come  to  the  United  States, 
shall  obtain  the  permission  of  and  be  identified  as  so  entitled  by 
the  Chinese  Government,  or  of  such  other  foreign  Government 
of  which  at  the  time  such  Chinese  person  shall  be  a  subject,  in 
each  case  to  be  evidenced  by  a  certificate  issued  by  such  Gov- 
ernment, which  certificate  shall  be  in  the  Engli-sh  language,  and 
snail    show   such   permission,   with    Ihe    name   of   the   permitted 

6  Act  of  Feb.  5,  1917,  eh.  29,  §  19, 
;!9  St.  at  L.  889. 


1700  EVIDENCE  [§  333r 

person  in  his  or  her  proper  signature,  and  which   certificate 
shall  state  the  individual,  family,  and  tribal  name  in  full,  title 
or  official  rank,  if  any,  the  age,  height,  and  all  physical  pecu- 
liarities,   former   and   present   occupation    or    profession,   when 
and  where  and  how  long  pursued,  and  place  of  residence  of 
the  person  to  whom  the  certificate  is  issued,  and  that  such  per- 
son is  entitled  by  this  act  to  come  within  the  United  States.   If 
the  person  so  applying  for  a  certificate  shall  be  a  merchant, 
said  certificate  shall,  in  addition  to  above  requirements,  state 
the  nature,  character,  and  estimated  value  of  the  business  car- 
ried on  by  him  prior  to  and  at  the  time  of  his  application  as 
aforesaid :    Provided,  That  nothing  in  this  act  nor  in  said  treaty 
shall  be  construed  as  embracing  within  the  meaning  of  the  word 
'merchant,'   hucksters,    peddlers,    or   those    engaged   in   taking, 
drying,  or  otherwise   preserving  shell  or  other  fish  for  home 
consumption  or  exportation.     If  the  certificate  be  sought   for 
the  purpose  of  travel  for  curiosity,  it  shall  also  state  whether 
the   applicant    intends   to   pass   through   or   travel   within    the 
United  States,  together  with  his  financial  standing  in  the  coun- 
try from  which  such  certificate  is  desired.     The  certificate  pro- 
vided for  in  this  act,  and  the  identity  of  the  person  named 
therein  shall,  before  such  person  goes  on  board  any  vessel  to 
proceed  to  the  United  States,  be  vised  by  the  indorsement  of 
the  diplomatic  representatives  of  the  United  States  in  the  foreign 
country  from  which  said  certificate  issues,  or  of  the  consular 
representative  of  the  United  States  at  the  port  or  place  from 
which  the  person  named  in  the  certificate  is  about  to  depart; 
and  such  diplomatic  representative  or  consular  representative 
whose  indorsement  is  so  required  is  hereby  empowered,  and  it 
shall  be  his  duty,  before  indorsing  such  certificate  as  aforesaid, 
to  examine  into  the  truth  of  the  statements  set  forth  in  said 
certificate,  and  if  he  shall  find  upon  examination  that  said  or 
any  of  the  statements  therein  contained  are  untrue  it  shall  be 
his  duty  to  refuse  to  indorse  the  same.     Such  certificate  vised 
as  aforesaid  shall  be  prima  facie  evidence  of  the  facts  set  forth 
therein,  and  shall  be  produced  to  the  collector  of  customs  of 
the  port  in  the  district  in  the  United  States  at  which  the  per- 
son named  therein  shall  arrive,  and  afterward  produced  to  the 
proper  authorities  of  the  United  States  whenever  lawfully  de- 
manded, and  shall  be  the  sole  evidence  permissible  on  the  part 


§  333s]  PRESUMI'TIOXS  AS  TO  IMI'()RTS  1701 

of  the  person  so  producing  the  same  to  establish  a  right  of 
entry  into  the  United  States;  but  said  certificate  may  be  contro- 
verted and  the  facts  therein  stated  disproved  by  the  United 
States  authorities.'"^ 

§  333s.  Presumptions  upon  the  assessment  and  collection  of 
duties  upon  imports.  By  the  Revised  Statutes  "When  any 
merchandise  is  admitted  to  an  entry  upon  invoice,  the  collector 
of  the  port  in  which  the  same  is  entered  shall  certify  the  same 
under  his  official  seal ;  and  no  other  evidence  of  the  value  of 
such  merchandise  shall  l)e  admitted  on  the  part  of  the  owner 
thereof,  in  any  court  of  the  United  States,  except  in  corrobora- 
tion of  such  entry.  "^ 

In  matters  within  the  jurisdiction  of  the  Board  of  General 
Ajjpraisers,  their  decision,  unless  reversed  upon  appeal  and 
the  decision  of  the  Collector  of  Customs  if  not  appealed  from, 
to  them,  is  conclusive.'^ 

"In  suits  or  informations  brought,  where  any  seizure  is  made 
pursuant  to  any  act  i)roviding  for  or  regulating  the  collection 
of  duties  on  imports  or  tonnage,  if  the  property  is  claimed  by 
any  person,  the  burden  of  proof  shall  lie  upon  such  claimant : 
Provided,  That  probable  cause  is  shown  for  such  prosecution, 
to  be  judged  of  by  the  court.  "^ 

"In  all  suits  or  informations  brought,  where  any  seizure  has 
been  made  pursuant  to  any  Act  providing  for  or  regulating  the 
collection  of  duties  on  imports  or  tonnage,  if  the  property  is 
claimed  by  any  person,  the  burden  of  proof  shall  lie  upon  sudi 
claimant,  and  in  all  actions  or  proceedings  for  the  recovery  of 
the  value  of  merchandise  imported  contrary  to  any  Act  pro- 
viding for  or  regulating  the  collection  of  duties  on  imports  or 
tonnage,  the  burden  of  proof  shall  be  upon  the  defendant :  Pro- 
vided, That  probable  cause  is  shown  for  such  ]>rosecution,  to 
be  judged  of  b}-  the  court."* 

"On  and  after  July  first,  nineteen  liuiulred  and  thirteen,  all 
smoking  opium  i)repared  for  smoking  found  within  the  United 

6  Act  of  May  6,  1882,  eh.  126,  §  6,  2  Supra,   §  76. 

22   St.   at  L.   60,   amoiulod,   July   5,  3  U.  S.  R.  S.,  §009,  Pioree's  Fed. 

1884,  eh.  220,  23  St.  at  L.  116,  Comi).  Co.le,   §  7588. 

8t.    §4293.  *Act  of  Ort.  3,  1913,  cii.   16,   §3. 

§333s.  IF.  S.  R.  S.,  §2852,  38  St.  at  L.  189,  C'omp.  St.  §5791. 
Conip.  St.  §  5540. 

Fed.  Prac.  Vol.  11—37 


1702  EVIDENCE  [§333t 

States  shall  be  presumed  to  have  been  imported  after  the  first 
day  of  April,  Dineteen  hundred  and  nine,  and  the  burden  of 
proof  shall  be  on  the  claimant  or  the  accused  to  rebut  such  pre- 
sumption. ' '  ^ 

§  333t.  Presumptions  upon  the  assessment  and  collection  of 
internal  revenue.  ' '  For  the  purpose  of  the  additional  tax,  the 
taxable  income  of  any  individual  shall  include  the  share  to 
wliich  he  would  be  entitled  of  the  gains  and  profits,  if  divided  or 
distributed,  whether  divided  or  distributed  or  not,  of  all  cor- 
jiorations,  joint  stock  companies  or  associations,  or  insurance 
companies,  however  created  or  organized,  formed  or  fraudulently 
availed  of  for  the  purpose  of  preventing  the  imposition  of  such 
tax  through  the  medium  of  permitting  such  gains  and  profits 
to  accumulate  .instead  of  being  divided  or  distributed ;  and  the 
fact  that  any  such  corporation,  joint-stock  company  or  associa- 
tion, or  insurance  company,  is  a  mere  holding  company',  or  that 
the  gains  and  profits  are  permitted  to  accumulate  beyond  the 
reasonable  needs  of  the  business  shall  be  prima  facie  evidence 
of  a  fraudulent  purpose  to  escape  such  tax;  l)ut  the  fact  that 
the  gains  and  profits  are  in  any  case  permitted  to  accumulate 
and  become  surplus  shall  not  be  construed  as  evidence  of  a 
purpose  to  escape  the  said  tax  in  such  case  unless  the  Secretary 
of  the  Treasury  shall  certify  that  in  his  opinion  such  accumu- 
lation is  unreasonable  for  the  purposes  of  the  business.  When 
i-equested  by  the  Commissioner  of  Internal  Revenue,  such  cor- 
])oration,  joint-stock  company  or  association,  or  insurance  com- 
pany shall  forward  to  him  a  correct  statement  of  such  gains  and 
profits  and  the  names  and  addresses  of  the  individuals  or  share- 
holders who  would  be  entitled  to  the  same  if  divided  and  dis- 
tributed." ^ 

"If  the  Secretary  of  the  Treasury  or  the  Commissioner  of 
Internal  Revenue  shall  have  reason  to  be  dissatisfied  with  the 
return  as  made,  or  if  no  return  is  made,  the  commissioner  is 
authorized  to  make  an  investigation  and  to  determine  the  amount 
of  net  profits  and  may  assess  the  proper  tax  accordingly.  He 
shall  notify  the  person  making,  or  who  should  have  made,  such 
return  and  shall  proceed  to  collect  the  tax  in  the  same  manner 

5Aet  of  Jan.  17,  1914.  ch.  9,  §  P..       1916,    oh.    46:i,    §  .^,    .'59    Stat.    7o8, 
;!8  St.  at  L.  27o,  Comp.  St.  §  8801a.       (,'onii..  St.   §  63:^.6(\ 
§  TiS.St.     1  Act     of     September     8, 


§  333tJ  PRESUMI'TIONS   IX    INTKKNAL   KEVKNUE  CASES  ITdo 

<is  provided  in  this  litlf,  unless  tlie  person  so  notified  shall  tile  a 
wi-itten  request  for  a  hearing  with  the  commissioner  within 
thii'ty  days  after  the  date  of  sncli  notice;  and  on  siich  hearin;r 
the  l)nrden  of  establisliinjr  to  the  satisfaction  of  the  commis- 
sioner that  the  gross  amount  received  or  accrued  or  the  amount 
of  net  profits,  as  determined  by  the  eommissioner,  is  incorrect, 
shall  devolve  ni)on  such  person."  ^ 

"The  absence  of  the  proper  stain])  on  any  package  of  manu- 
factui-cd  tobacco  or  smiff  shall  be  notice  to  all  i)ei-sons  that  the 
tax  has  not  been  paid  thereon,  and  shall  be  ])rima-facie  evidence 
of  the  non-payment  thereof.  And  such  tobaceo  or  snuff  shall  be 
forfeited  to  tlu'  United  States.'"  ^ 

"Whenever  sei/nie  is  made  of  any  distilled  spirits  found  else- 
wiiere  than  \n  a  distilleiy  or  distillery  warehouse,  or  other  ware- 
house for  distilled  spirits  authorized  l)y  law.  or  tlian  in  the  store 
or  place  of  business  of  a  rectifier,  oi'  of  a  wholesale  liquor  dealer, 
or  than  in  transit   fnmi  any  otie  of  said  places;  or  of  any  dis- 
tilled  spirits  found   in   any  one  of  the  ])laces  aforesaid,  or  in 
tiansit  therefrom,  which  have  not  been  received  into  or  sent  out 
thei-efrom  in  confoi-mity  to  law,  oi-  in  i-egard  to  which  any  of  the 
entries  required  by  law  to  be  made  in  the  books  of  the  owner 
of  such  spii'its,  or  of  the  store-keeper,  wholesale  dealer,  or  recti- 
fici-,  have  not  been  made  at  the  time  or  in  the  manner  required, 
or  in   respect  to  which  the  ownci'  or  person  having  possession, 
control,  or  charge  of  said  spirits,  has  omitted  to  do  any  act  i-e- 
quired  to  be  done,  oi-  has  done  or  committed  any  act  prohibited 
in  regard  to  said  spirits,  the  burden  of  proof  shall  be  upon  the 
claimant  of  said  spirits  to  show  that  no  fraiul  has  been  com- 
mitted, and  that  all  the  requirements  of  the  law  in   relation  to 
the  ])aynu'nt  of  the  tax  have  been  complied  with."'* 

r.y  the  Act  of  December  17.  1914,  imi)osing  a  tax  upon  <.pium 

an<l  coca  leaves,  and  their  respective  compounds  and  derivations. 

"It  shall  be  unlawful  for  any  jierson  lun  registered  under  the 

provisions  of  this   Act,  and   who  has   not   i)aid   the  special   tax 

provided  for  by  this  Act,  to  have  in  his  possession  or  under  his 

2  Act    of   Sept.    8,    19K),    eh.    46:5.  4  1'.    S.    |{.    S..    ^  :VAXi,    Cuini..    ^t. 
§:!06,    39   8t.   «t    L.    782,   Comp.   St.        S  (;i::(i. 

§  6:w6yig. 

3  V.  S.  R.  S.,  §  .•5;!7;J,  Pierce's  Fed. 
Coilc,  (J141. 


1704  EVIDENCE  [§  333u 

control  any  of  the  aforesaid  drugs ;  and  such  possession  or  con- 
trol shall  be  presumptive  evidence  of  a  violation  of  this  section, 
and  also  of  a  violation  of  the  provisions  of  section  one  of  this 
Act :  Provided,  That  this  section  shall  not  apply  to  any  employee 
of  a  registered  person,  or  to  a  nurse  under  the  supervision  of  a 
physician,  dentist,  or  veterinary  surgeon  registered  under  this 
Act,  having  such  possession  or  control  by  virtue  of  his  employ- 
ment or  occupation  and  not  on  his  own  account ;  or  to  the  pos- 
session of  any  of  the  aforesaid  drugs  which  has  or  have  been 
prescribed  in  good  faith  by  a  ph^^sician,  dentist,  or  veterinary 
surgeon  registered  under  this  Act ;  or  to  any  United  States,  State, 
county,  municipal,  District,  Territorial,  or  insular  officer  or 
official  who  has  possession  of  any  said  drugs,  by  reason  of  his 
official  duties,  or  to  a  warehouse-man  holding  possession  for  a 
person  registered  and  who  has  paid  the  taxes  under  this  Act ;  or 
to  common  carriers  engaged  in  transporting  such  drugs :  Pro- 
vided further.  That  it  shall  not  be  necessary  to  negative  any  of 
the  aforesaid  exemptions  in  any  complaint,  information,  indict- 
ment, or  other  writ  or  proceeding  laid  or  brought  under  this 
Act ;  and  the  burden  of  proof  of  any  such  exemption  shall  be 
upon  the  defendant. ' '  ^ 

§  33311.  Presumptions  upon  distress  sales.  ' '  When  any 
collector  fails  either  to  collect  or  to  render  his  account,  or  to 
pay  over  in  the  manner  or  within  the  times  provided  by  law,  the 
First  Comptroller  of  the  Treasury  shall,  immediately  after  evi- 
dence of  such  delinquency,  report  the  same  to  the  Solicitor  of 
the  Treasury,  who  shall  issue  a  warrant  of  distress  against  such 
delinquent  collector,  directed  to  the  marshal  of  the  district,  ex- 
pressing therein  the  amount  with  which  the  said  collector  is 
chargeable,  and  the  sums,  if  any,  which  have  been  paid  over  by 
him,  so  far  as  the  same  are  ascertainable.  And  the  said  marshal 
shall,  himself,  or  by  his  deputy,  immediately  proceed  to  levy 
and  collect  the  sum  which  may  remain  due,  with  five  per  centum 
thereon,  and  all  the  expenses  and  charges  of  collection,  by  dis- 
tress and  sale  of  the  goods  and  chattels,  or  any  personal  effects 
of  the  delinquent  collector,  giving  at  least  five  days'  notice  of 
the  time  and  place  of  sale,  in  the  manner  provided  by  law  for 

6  Act  of  December  17,  1914,  ch.  1, 

§  8,  38  Stat.  789,  Comp.  St.  §  6287n. 


§  333v]  MISCELLANEOUS    BURDENS    OF    PROOF  1705 

advertising  sales  of  personal  property  on  execution  in  the  State 
wherein  such  collector  resides.    And  the  bill  of  sale  of  the  officer 
of  any  goods,  chattels,  or  other  personal   property,   distrained 
and  sold  as  aforesaid,  shall  be  conclusive  evidence  of  title  to  the 
purchaser,  and  prinia-facie  evidence  of  the  right  of  the  officer  to 
make  such  sale,  and  of  the  correctness  of  his  proceedings  in  sell- 
ing the  same.    And  for  want  of  goods  and  chattels,  or  other  per- 
sonal effects  of  such  collector,  sufficient  to  satisfy  any  warrant 
of  distress,  issued  as  aforesaid,  the  real  estate  of  such  collector, 
or  so  much  thereof  as  may  be  necessary  for  satisfying  the  said 
warrant,  after  being  advertised  for  at  least  three  weeks  next 
before  the  time  of  sale,  in  not  less  than  three  public  places  m 
the   collection   district,   and   in   one   newspaper   printed   in   the 
county  or  district,  if  any  there  be,  shall  be  sold  at  public  auction 
by  the  marshal  or  his  deputy.    Upon  such  sale,  the  marshal  shall 
make  and  deliver  to  the  purchaser  of  the  premises  sold  a  deed 
of  conveyance  thereof,  to  be  executed  and  acknowledged  in  the 
manner  and  form  prescribed  by  the  laws  of  the  State  in  which 
said  lands  are  situated,  and  said  deed  so  made  shall  invest  the 
purchaser  wath  all  the  title  and  interest  of  the  defendant  named 
in  said  warrant,  existing  at  the  time  of  the  seizure  thereof.    And 
all  moneys  that  may  remain  of  the  proceeds  of  such  sale  of  per- 
sonal or  real  property,  after  satisfying  the  said  warrant  of  dis- 
tress, and  paying  the  reasonable  costs  and  charges  of  sale,  shall 
be  returned  to  the  proprietor  of  the  property  sold  as  aforesaid."  ^ 

"The  deed  of  sale  given  in  pursuance  of  the  preceeding  sec- 
tion shall  be  prima-facie  evidence  of  the  facts  therein  stated; 
and  if  the  proceedings  of  the  officer  as  set  forth  have  been  sub- 
stantially in  accordance  with  the  provisions  of  law,  shall  be 
considered  and  operate  as  a  conveyance  of  all  the  right,  title, 
and  interest  the  party  delinquent  had  in  and  to  the  real  estate 
thus  sold  at  the  time  the  lien  of  the  United  States  attached 
thereto.  "2 

§333v.  Miscellaneous  statutes  as  to  burden  of  proof  and 
prima  facie  evidence.  A  carrier,  in  the  absence  of  some  law- 
ful excuse,  is  bound  to  deliver  goods  upon  a  demand  made  either 

§3.3.3u.     lU.     S.     E.     S.,     §3217,  2  U.    S.    H.    S..    §  .iH)!),    Comp.    St. 

Comp.   St.   §5941.  §59.44. 

2U.   S.   E.   S.,   §3217,    Comp.    St. 
§5941. 


1706  EVIDENCE  [§  333v 

by  the  consignee  named  in  the  bill  for  the  goods  or,  if  the  bill 
is  an  order  bill,  by  the  holder  thereof,  if  such  a  demand  is  ac- 
companied by — 

(a)  An  otfer  in  good  faith  to  satisfy  the  carrier's  lawful  lien 
upon  the  goods; 

(b)  Possession  of  the  bill  of  lading  and  an  offer  in  good  faith 
to  surrender,  properly  indorsed,  the  bill  which  was  issued  for 
the  goods,  if  the  bill  is  an  order  bill :  and 

(c)  A  readiness  and  willingness  to  sign,  when  the  goods  are 
delivered,  if  such  signature  is  requested  by  the  carrier. 

In  case  the  carrier  refuses  or  fails  to  deliver  the  goods,  in 
compliance  with  a  demand  by  the  consignee  or  holder  so  accom- 
panied, the  burden  shall  be  upon  the  carrier  to  establish  the 
existence  of  a  lawful  excuse  for  such  refusal  or  failure."  * 

By  the  Criminal  Code,  in  any  Territory  or  District  or  other 
place  within  the  exclusive  jurisdiction  of  the  United  States: 
"Every  ceremony  of  marriage,  or  in  the  nature  of  a  marriage 
ceremony  of  any  kind,  whether  either  or  both  or  more  of  the 
parties  to  such  ceremony  be  lawfully  competent  to  be  the  sub- 
jects of  such  marriage  or  cei-emony  or  not,  shall  be  certified  by  a 
certificate  stating  the  fact  and  nature  of  such  ceremony,  and 
the  full  name  of  each  of  the  parties  concerned,  and  the  full 
name  of  every  officer,  priest,  and  person,  by  whatever  style  or 
designation  called  or  known,  in  any  way  taking  part  in  the  per- 
formance of  such  ceremony,  which  certificate  shall  be  drawn  up 
and  signed  by  the  parties  to  such  ceremony  and  by  every  officer, 
priest,  and  person  taking  ]iart  in  the  performance  of  such 
ceremony,  and  shall  be  by  the  officer,  priest,  or  other  person 
solemni;^ing  such  marriage  or  ceremony  filed  in  the  office  of  the 
probate  court,  or,  if  there  be  none,  in  the  office  of  the  court 
having  probate  powers  in  the  county  or  district  in  which  such 
ceremony  shall  take  place,  for  record,  and  shall  be  immediately 
recorded,  and  be  at  all  times  subject  to  inspection  as  other  pub- 
lic records.  Such  certificate,  or  the  record  thereof,  or  a  duly 
certified  copy  of  such  record,  shall  be  prima-facie  evidence  of 
the  facts  required  by  this  section  to  be  stated  therein  in  any  pro- 
ceeding, civil  or  criminal,  in  which  the  matter  shall  be  drawn 

§333v.  lAct  of  Aug.  29,  1916, 
ch.  415,  §  8,  39  St.  at  L.  539,  Comp. 
St.    §  8604dcl. 


§3;ii5v)  I'RIMA    FACIE    EVIDEN'CE  1707 

in  (juestion.  But  nothing  in  this  section  shall  be  held  to  prevent 
the  proof  of  marriages,  whether  lawful  or  unlawful,  by  any  evi- 
dence otherwise  legally  admissible  for  tiiat  puri)ose.  Whoever 
shall  willfully  violate  any  ])r()visic»n  of  this  section  sliall  be  fined 
not  more  than  one  thousand  dollars,  or  imprisoned  not  more 
than  two  years,  or  both.  The  provisions  of  this  section  shall 
apply  ou\y  within  the  Territories  of  the  United  States."^ 

In  Alaska:  ''The  protest  of  a  notary  public  under  his  hand 
and  seal  of  a  bill  of  excliange  or  promissory  note  for  nonaccept- 
ance  or  nonpayment,  stating  the  presentment  for  acceptance 
or  payment  and  the  nonacceptance  or  nonpayment  thereof,  the 
service  of  notice  on  any  and  all  parties  to  such  bill  of  exchange 
or  promissory  note  and  specifying  the  mode  of  giving  such 
notice  and  the  reputed  place  of  residence  of  the  party  to  such 
bill  of  exchange  or  promissory  note  and  of  the  party  to  whom 
same  was  given  and  the  post-office  nearest  thereto  is  prima-facie 
evidence  of  the  facts  contained  therein. "^ 

By  the  Act  of  August  10,  1917:  "For  gathering  authorita- 
tive information  in  connection  with  the  demand  for,  and  the 
production,  supply,  distribution,  and  utilization  of  food,  and 
otherwise  carrying  out  the  purpose  of  section  two  of  this  Act ; 
extending  and  enlarging  the  market  news  service ;  and  prevent- 
ing waste  of  food  in  stoiage,  in  transit,  or  held  for  sale;  advice 
concerning  the  market  movement  or  distribution  of  perishable 
produt-ts;  for  enabling  the  Secretary  of  Agriculture  to  investi- 
gate and  certify  to  shippers  the  condition  as  to  soundness  of 
fruits,  vegetables  and  other  food  products,  when  received  at 
such  important  central  markets  as  the  Secretary  of  Agriculture 
may  from  time  to  time  designate  and  under  sucli  rules  and  reg- 
ulations as  he  may  pi-escribe:  Provided,  That  certificates  issued 
by  tlie  autliorized  agents  of  the  department  shall  be  received 
in  all  courts  as  prima-facie  evidence  of  the  truth  of  the  state- 
ments therein  contained :  and  otherwise  carrying  out  the  pur- 
poses of  this  Act,  $2,rv22,00() :     Provided  further.  That  the  Sec- 

2  Act    of   March   ;5,   1887,   ch.   .S97,  3  Act    of    .luiio    (>.    19(t(),    ch.    78(1, 

§§9,    10,   24    St.    at    L.    ti.SO;    March  S  1!>,    'M    St.    at    1..    :!2y,    ("omp.    St. 

4,  19(J9,  ch.  :i2\,  §.-519,  'A')  St.  at    I..  S  .;.")» 1. 
1149,  romp.  St.  §  10492. 


1708  EVIDENCE  [§  333v 

retary  of  Agriculture  shall,  so  far  as  practicable,  engage  the 
services  of  women  for  the  work  herein  provided  for. ' '  * 

By  the  Act  providing  for  the  insurance  of  the  lives  of  per- 
sons in  the  military  service:  "In  any  proceeding  under  this 
Act  a  certificate  signed  by  The  Adjutant  General  of  the  Army 
as  to  persons  in  the  Army  or  in  any  branch  of  the  United  States 
Service  while  serving  pursuant  to  law  with  the  Army,  signed  by 
the  Chief  of  the  Bureau  of  Navigation  of  the  Navy  Depart- 
ment as  to  persons  in  the  Navy  or  in  any  other  branch  of  the 
United  States  service  while  serving  pursuant  to  law  with  the 
Navy,  and  signed  by  the  Major  General,  Commandant,  United 
States  Marine  Corps,  as  to  persons  in  the  Marine  Corps,  or  in 
any  other  branch  of  the  United  States  service  while  serving 
pursuant  to  law  with  the  Marine  Corps,  or  signed  by  an  officer 
designated  by  anj^  of  them,  respectively,  for  the  purpose,  shall 
when  produced  be  prima  facie  evidence  as  to  any  of  the  follow- 
ing facts  stated  in  such  certificate : 

That  a  person  named  has  not  been,  or  is,  or  has  been  in  mili- 
tary service;  the  time  when  and  the  place  where  such  person 
entered  militarj^  service,  his  residence  at  that  time,  and  the 
rank,  branch,  and  unit  of  such  service  that  he  entered,  the  dates 
within  which  he  was  in  military  service,  the  monthly  pay  re- 
ceived by  such  person  at  the  date  of  issuing  the  certificate,  the 
time  when  and  place  where  such  person  died  in  or  was  dis- 
charged from  such  service. 

It  shall  be  the  duty  of  the  foregoing  officers  to  furnish  such 
certificate  on  application,  and  any  such  certificate  when  pur- 
porting to  be  signed  by  any  one  of  such  officers  or  by  any  person 
purporting  upon  the  face  of  the  certificate  to  have  been  so 
authorized  shall  be  prima  facie  evidence  of  its  contents  and  of 
the  authority  of  the  signer  to  issue  the  same. 

(2)  Where  a  person  in  military  service  has  been  reported 
missing  he  shall  be  presumed  to  continue  in  the  service  until 
accounted  for;  and  no  period  herein  limited  which  begins  or 
ends  with  the  death  of  such  person  is  in  fact  reported  to  or 
found  by  the  Department  of  War  or  Navy,  or  any  court  or 
board  thereof,  or  until  such  death  is  found  by  a  court  of  com- 

4  Ch.    52,    §  8,   40    St.    at    L.    274, 
Comp.   §  .Siloed. 


§335] 


VERIFICATION    OK    AFFIDAVIT 


1709 


petent  jurisdiction:  Provided,  That  no  period  herein  limited 
which  begins  or  ends  with  the  death  of  such  person  shall  be 
extended  hereby  beyond  a  period  of  six  months  after  the  termi- 
nation of  the  war."  ^ 

§334.  Definition  and  use  of  an  affidavit.  An  affidavit  is  a 
declaration  ui)on  oath  or  affirmation  before  some  person  having 
competent  and  lawful  power  and  authority  to  administer  the 
same.  Affidavits  are  used  in  a  suit  in  equity  in  three  ways. 
Tn  certain  eases  they  must  be  annexed  to  a  bill  before  it  can 
be  properly  filed ;  ^  certain  documents  may  be  proved  by  them 
at  the  hearing;  2  and  they  are  used  in  support  of  interlocutory 
applications.^  The  manner  of  their  use  has  been  already  de- 
scribed.* Ex  parte  affidavits  were  not  admissible  before  a  gen- 
eral appraiser  sitting  as  referee,  for  the  introduction  of  evi- 
dence in  the  Circuit  Court.^ 

Pending  a  reference  concerning  it,  an  affidavit  cannot  be 
used,  except  by  leave  of  the  court,  which  is  usually  granted  only 
upon  terms.® 

In  the  absence  of  a  State  statute  or  a  court  rule  it  was  held 
that  a  Federal  court  had  no  power  to  compel  any  one  to  have 
his  affidavit  taken,'  or  to  cross-examine  an  affiant.*  Such  a  cross- 
examination  might  perhaps  be  had  by  moans  of  a  feigned  issue.^ 

§  335.  Manner  of  verifying  an  affidavit.  An  affidavit  must 
be  sworn  to;  unless  the  affiant  is  conscientiously  scrupulous  of 
taking  an  oath,  when  he  may,  in  lieu  thereof,  make  solemn  affir- 
mation of  the  truth  of  the  facts  stated  by  him.i  if  the  deponent 
be  blind  or  unable  to  read,  the  affidavit  must  be  read  over  to 

Judd,  26  Fed.  292;  Bacon  v.  Magee, 
7  Co  wen  (N.  Y.)  515;  Day  v.  Bos- 
ton B.  Co.,  6  Law  R.  (N.S.)  329. 
As  to  the  right  to  compel  a  party 
to  file  an  affida\-it  which  he  haa 
read  upon  a  motion,  see  Sinnot  v. 
First  Nat.  Bank,  .34  App.  Div.  161. 

8  See  Day  v.  Boston  B.  Co.,  6  Law 
Reg.  (N.S.)  329;  Hammerschlag 
Mfg.  Co.  V.  Judd,  26  Fed.  292. 

9  Infra,   §§378-383. 
§.335.     IFq.    Rnle    78;    V.    S.    R. 

S.  §§1,  5013.  Cf.  Loney  v.  Bailey, 
43  Md.  10, 


5  Act   of   March    8,    1918,    eh.    20, 

§601,   40   Stat.   L. ,   Comp.   St. 

3078%r. 

«  334.     1  See  §  156. 

2  See  §  332. 

3  See  eh.  xvi. 

4  Supra,  §§  198,  252,  293. 

5  James  F.  White  &  Co.  v.  U.  S., 
154  Fed.  175.  See  Importers'  & 
Traders'  Nat.  Bk.  v.  Lyons,  134 
Fed.  510;  supra,  §§76,  77. 

ePearse  v.  Brook,  3  Beav.  337; 
Daniell's  Ch.   Pr.   1777. 

7  Crenshaw  v.  Miller,  111  Fed. 
450.    See  Hammerschlag  Mfg.  Co.  v. 


1710 


EVIDENCE 


[§336 


him  by  the  officer  before  whom  he  swears  to  its  truth.^  Ordina- 
rily an  affidavit,  if  made  within  the  United  States,  must  be  veri- 
fied before  a  judge  of  the  court  in  which  it  is  to  be  used,  or  a 
United  States  commissioner,  or  a  notary  public. ^  A  verification 
before  a  city  commissioner  is  insufficient.* 

The  Equity  Rules  provide:  "Every  pleading  which  is  re- 
([uired  to  be  sworn  to  by  statute,  or  these  rules,  may  be  verified 
liefore  any  justice  or  judge  of  any  court  of  the  United  States,  or 
of  any  State  or  Territory,  or  of  the  District  of  Columbia,  or  any 
clerk  of  any  court  of  the  United  States,  or  of  any  Territory,  or 
of  the  District  of ^ Columbia,  or  any  notary  public."^  If  made 
without  tlie  United  States,  it  mav  be  verified  before  anv  secre- 
tary  of  legation,  or  consular  officer  within  the  limits  of  his 
legation,  coDsulate,  or  commercial  agency ;  ^  or,  perhaps,  before 
any  person  who,  by  the  laws  of  the  country  in  which  the  affi- 
davit is  made  is  authorized  to  administer  an  oath  or  affirmation."'' 
It  was  said  to  be  irregular  to  have  an  affidavit  entitled  in  a  suit 
in  equity  sworn  to  before  the  bill  was  filed.^ 

§  336.  Title  of  an  affidavit.  A14  affidavit  should  be  correctly 
entitled  in  thd  cause  or  matter  in  which  it  is  made,^  for,  other- 
wise, it  is  said  that  the  affiant  cannot  be  convicted  of  perjury 
if  his  statements  are  false.^  But,  it  seems  that,  if  there  are  sev- 
eral parties  on  either  side  or  both. sides,  it  will  be  sufficient  to 
entitle  it  in  the  name  of  a  single  plaintiff  and  defendant,  and 
after  each  to  insert  the  word  "others"  or  "another,"  according 
to  the  circumstances  of  the  case.^     The  omission  of  a  party's 


2  Matter  of  Christie,  5  Paige  (N. 
Y.)  242. 

3U.  S.  R.  S.,  §§725,  945;  L. 
1876,  oh.  .304;  19  St.  at  L.  206; 
Haight  V.  Morris  Aq.,  4  Wash.  C. 
C.  601.     Cf.  27  St.  at  L.  7. 

4  Stationary  En^neer  Pub.  Co.  v. 
Comerford,    155  Fed.   667. 

5Eq.  Rule  36. 

6U.   S.  R.  S.,   §1750. 

1  Pinkerton  v.  Barnsley  C.  Co.,  3 
Y.   &  J.  277,  n. 

8  Baldwin  v.  Bernard,  9  Blatclif., 
note;  s.  c,  Fed.  Cas.  No.  797.  8ee 
Blake  Cr.  Co.  v.  Ward,  Fed.  Cas. 
No.    1,505.     But   see   Modox  Co.   v. 


Moxie    Nerve    Food    Co.,    C.    C.    A., 
162  Fed.  649;  ixfra,  §335. 

§  336.  1  Hawley  v.  Donnelly,  8 
Paige  (N.  Y.)  415;  Stafford  v. 
Brown,  4  Paige  (N.  Y.)  360;  Gold- 
stein V.  Whelan,  62  Fed.  124.  But 
see  Bowman  v.  Sheldon,  5  Sand. 
(N.  Y.)  657;  Shook  v.  Rankin,  6 
Biss.  477;  s.  c.  Fed.  Cas.  12,804. 
Cf.  supra,   §335. 

2  Hawley  v.  Donnelly,  8  Paige 
(N.  Y.)   415. 

3  White  V.  Hess,  8  Paige  (N.  Y.) 
544;  Seymour  v.  Bailey,  66  111.  288. 
But  see  Arnold  v.  Nye,  11  Mich. 
456. 


§  337] 


P'ORM   OF  AFFIDAVIT 


1711 


christian  name  will  not  be  a  fatal  defect.*  If  the  affidavit  is 
correctly  entitled  when  made,  it  can  still  he  used  after  the  title 
of  the  cause  has  been  subsequently  changed.^  If  an  affidavit 
of  service  be  attached  to  papers  which  are  themselves  correctly 
entitled,  it  needs  no  separate  title.*  An  affidavit  made  or  entitled 
in  one  cause  cannot,  it  has  been  held,  be  used  in  anotlu'r ; ''  unless, 
perhaps,  when  the  affiant  is  dead,  insane,  imbecile,  or  beyond 
the  jurisdiction  of  the  court;  but  affidavits  which  were  not  en- 
titled were  admittwl  upon  a  motion  for  an  injunction,  when 
they  were  made  and  signed  before  the  suit  was  begun  and  it 
appeared  fi-om  their  context  that  they  were  made  for  the 
purpose  of  being  used  in  a  suit  between  the  same  parties.' 

§337,  Form  of  an  affidavit.  Every  affidavit  should  begin 
with  the  venire, — that  is,  the  name  of  the  county,^  and  in  a 
Federal  court  the  name  of  the  judicial  district ;  ^  and  if  sworn 
to  elsewhere  than  in  that  where  the  court  is  held,  with  the  name 
of  the  State  where  it  is  taken ;  which  is  usually  followed  by  the 
abbreviation  ss.  for  scilicet,  or  the  English  words  to  ivit.  Other- 
wise, it  has  been  held,  though  not  by  a  Federal  court,  that  it 
may  be  disregarded  as  a  nullity,  even  though  the  residence  of 
an  officer  before  whom  it  is  sworn  appear  in  the  jnrat.' 

The  English  rule  was  that  in  all  affidavits  the  true  place  of 
residence,  description,  and  addition  of  every  person  swearing  to 
the  same,  must  be  inserted;  unless  the  affidavits  were  made  by 
parties  to  the  cause,  who  might  describe  themselves,  in  the  affi- 
davit, as  the  above-named  plaintiff,  or  defendant,  without  speci- 
fying any   residence,  or  addition,  or  other  description.*     This 


4  Maury    v.    Van    Avuuiii,    1    Hill 
(N.  Y.)    370. 
6  Hawes  v.  Baniford,  9  Sim.  65:5. 

6  Anon.,  4  Hill    (N.  Y.)   597. 

7  Lumbrozo  v.  Wliite,  1  Dick.  150 ; 
Daniell's  Ch.  Pr.  1774;  Milliken  v. 
Selye,  3  Denio  (N.  Y.)  54;  Stacy 
V.  Farnham,  2  How.  Pr.  (N.  Y.) 
26.  But  see  Barnard  v.  Heydriek, 
49  Barb.  (N.  Y.)  62,  72;  s.  C,  2 
Abbott's  Pr.  N.  S.  (N.  Y.)  47; 
Langston  v.  Wethcrell,  14  Mces.  & 
W.  104. 

8  Modox  Co.  V.  Moxie  Nerve  Food 
Co.,  C.  C.  A.,  162  Fed.  649.  S(>e 
unpra,  §  29.3. 


§337.  IBelden  v.  Devoe,  12 
Wend.   (N.  Y.)   223. 

2Sterrick  v.  Pngsley,  11  Flipp. 
350. 

3  Cook  V.  Staats,  18  Barb.  (X. 
Y. )  407;  Lane  v.  Morse,  6  How.  Pr. 
(N.  Y.)  394;  Burns  v.  Doyle,  28 
Wi.s.  460:  Smith  v.  Richardson,  1 
L'tah,  194;  Barbydt  v.  Alexander, 
59  Mo.  189.  But  see  Mosher  v. 
Heydriek,  45  Barb.  *(N.  Y.)  549; 
s.  c,  30  How.  Pr.  (N.  Y.)  161; 
Stone  V.  Williamson,  17  111.  App. 
175;  Young  v.  Young,  18  Minn.  90; 
State  V.  Henning,  3  S.  D.  492. 

4  naniell's   Oh.    Pr.    (2d   Am.    ed.) 


1712 


EVIDENCE 


[§337 


rule,  however,  is  not  always  adhered  to  or  insisted  upon  by  prac- 
titioners in  the  courts  of  the  United  States, 

The  English  rule  was  that  the  stating  part  of  the  affidavit 
must  be  preceded  by  the  statement  that  the  deponent  was  duly 
sworn.^ 

The  affidavit  should  state  ' '  sufficient  to  sustain  the  case  made 
by  the  motion  or  petition  of  which  it  is  the  groundwork."  ^  Its 
statements  must  be  made  with  sufficient  certainty,  and  with  all 
necessary  circumstances  of  time,  place,  manner,  and  other  ma- 
terial incidents."'  When,  however,  the  affiant  deposes  to  words 
spoken,  the  addition  "or  to  that  effect"  is  not  improper.*  Spe- 
cial fullness  is  required  of  affidavits  of  service.* 

Objections  to  the  form  of  affidavits  should  be  made  before  the 
hearing  of  the  motion,  when  they  have  been  previously  served 

or  filed.io 

When  the  affidavit  states  matters  not  within  the  deponent's 
knowledge,  it  should  show  how  he  knows  them  to  be  true." 
Otherwise  it  may  be  disregarded.^^ 


1775.     See   also  Hiiidee's  Pr.   451; 
Crockett  v.  Bishton,  2  Madd.  446. 

6  Phillips  V.  Prentice,  2  Hare, 
542;  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1776. 

6  Daniell's  Ch.  Pr.  (2d  Am.  ed.) 
1776;  Hinde's  Pr.  451;  Van  Wyck 
V.  Eeid,  10   How.  Pr.    (N.  Y.)    366. 

7  Sea  Insurance  Co.  v.  Stebbins,  8 
Paige  (N.  Y.)  565;  Meach  v.  Chap- 
pell,  8  Paige   (N.  Y.)   135. 

8  Ayliffe  v.  Murray,  2  Atk.  58,  60. 

9  Hinde's  Pr.  453. 

10  ModOx  Co.  V.  Moxie  Nerve  Food 
Co.,  C.   C.   A.,  162  Fed.   649. 

11 TJ.  S.  V.  Moore,  2  Low.  232; 
Thompson  v.  Ward,  199  Fed.  861; 
Lacker  v.  Dreher,  38  N.  Y.  App. 
Div.  75,  55  N.  Y.  Suppl.  979;  Wal- 
lace V.  Baring,  21  N.  Y.  App.  Div. 
477,  48  N.  Y.  Suppl.  692;  Tucker 
V.  E.  L.  Goodsell  Co.,  14  N.  Y.  App. 
Div.  89,  43  N.  Y.  Suppl.  460,  4  N. 
Y.  Annot.  Cas.  86;  Hoormann  v. 
Climax  Cycle  Co.,  9  N.  Y.  App.  Div. 
579,    41    N.    Y.    Suppl.    710,    N.    Y. 


St.  1100;  afflrming  17  Misc.  (N.  Y.) 
734,  40  N.  Y.  Suppl.  1067,  26  N.  Y. 
Civ.  Proc.  25,  3  N.  Y.   Annot.   Cas. 
201 ;      Ladenburg      v.      Commercial 
Bank,    5   N.   Y.    App.    Div.    219,   39 
N.  Y.  Suppl.  119;   Kahle  v.  Muller, 
57    Hun    (N.    Y.)     144;    11    N.    Y. 
Suppl.  26,  32  N.  Y.  St.  448;  Crowns 
V.  Vail,  51  Hun   (N.  Y.)    204,  4  N. 
Y.    Suppl.   324,   21   N.    Y.    St.   208; 
James   v.    Bichardson,    39    Hun    (N. 
Y.)    399;   National  Broadway  Bank 
V.   Barker,   16  N.   Y.   Suppl.   75,   40 
N.  Y.  St.  771 ;  Thomas  v.  Dickerson, 
UN.  Y.   Suppl.  436,  33  N.  Y.   St. 
786;    Doctor    v.    Schnepp,    7    N.    Y. 
Civ.    Proc.    144,   2    How.   Pr.    N.   S. 
(N.  Y.)  52;  Ellison  v.  Bernstein,  60 
How.  Pr.    (N.  Y.)    145.     See  article 
by  the  Author  on  "Attachment,"  4 
Cyc.   470-483.      Cf.   Crowns   v.   Vail, 
51  Hun   (N.  Y.)   204;   Cook  v.  de  la 
Garza,  13  Tex.  431, 

12  Thompson    v.    Ward,    199    Fed. 
861. 


§  338] 


EXECUTION  OF  Af^FlDAVIT 


17i:i 


An  affidavit  should  state  facts  and  not  conclnsions  of  law ;  ^' 
and  must  be  pertinent,  material,  and  not  scandalous.^*  The  court 
may,  upon  examination  of  the  paper,  order  such  matter  expunged 
with  costs,  to  be  paid  hy  the  party  or  solicitor  seeking  to  use  the 
same ;  ^^  or  a  reference  may  be  ordered  to  determine  whether  the 
statements  in  it  are  proper.^®  A  reference  can  only  be  demanded 
upon  exceptions  in  writing  similar  to  those  to  a  pleading;  ^'  and 
the  filing  or  reading  of  affidavits  in  opposition  to  such  parts  of 
his  opponent's  affidavits  as  are  excepted  1o  may  be  construed  as 
a  waiver  of  the  except  ions. ^^ 

§338.  Execution  of  an  affidavit.  It  is  usual,  though  it  seems 
not  indispensable,  for  the  affiant  to  subscribe  his  christian  name 
,  and  surname  at  the  foot  of  the  affidavit. ^  In  p]ngland  the  sig- 
nature had  to  be  on  the  left  side  of  the  page  ;  ^  but  in  this  country 
it  is  usually 'at  the  right.  In  one  case  where  a  mark.sman  had 
signed  with  his  name  at  length,  his  hand  having  been  guided  for 
that  purpose,  the  affidavit  was  ordered  taken  off  the  file.^  The 
jurat,  which  is  indispensable,  is  placed  upon  the  opposite  side 
from  the  signature.     It  is  usually  in  substantially  the  following 

form  :   "Sworn  to  before  me  this day  of ,  19 — . "    If 

the  affiant  be  blind  or  a  mark.sman,  the  jurat  should  be  in  sub- 
stance thus:  "Sworn,"  &c.,  "the  whole  of  the  above  affidavit 
having  been  first  read  over  and  explained  to  the  said  A.  B.,  who 
appeared  perfectly  to  understand  the  same,  he  made  his  mark  in 


13  Powell  V.  Kane,  5  Paige  (N. 
y.)  265.  Cf.  Spies  v.  Munroe,  ."io 
App.  Div.  527,  528.  An  allegation 
that  one  is  a  creditor  is  a  conclu- 
sion of  law.  Wallace  v.  Chicago 
&  E.  S.  Co.,  46  111.  App.  571. 

14  Powell  V.  Kaue,  5  Paige  (N. 
Y.)   265. 

16  Powell  V.  Kane,  5  Paige  (N. 
Y.)  265;  Ex  parte  Smith,  1  Atk. 
139. 


Pr.   (2(1  Am.  e.l.) 
Pr.   (2(1  Am.  ed.) 


iBDaniell's  Ch. 
1777.     See   §68. 

17Danieirs  Ch. 
1777.     See  §68. 

ISBiekford  v.  Skewes,  8  Sim.  206; 
Daniell's  Ch.  Pr.  1777. 

§  :!.X8.     1  Nol.le  V.   r.  S.,  Dev.,  C. 


C.  A.,  83;  Haff  v.  Spicer,  3  Caines 
(N.  Y.)  lyu;  Jackson  ex  dem. 
Kenyon  v.  Virgil,  3  J.  R.  (N.  Y.) 
540;  Soule  v.  Chase,  1  Rob.  (N. 
Y.)  222;  Hitsman  v.  Gerrard,  1 
Harr  (N.  J.)  124;  Shelton  v.  Berry, 
1 9  Tex.  1 5.4,  70  Am.  Dec.  326 ;  Watts 
V.  Womack,  44  Ala.  605;  Alford  v. 
McCarmac,  9  N.  C.  151;  Gill  v. 
Ward,  23  Ark.  16;  Redus  v.  Wof- 
ford,  4  Sm.  &  M.  (Miss.)  579;  Bates 
V.  Robinson,  8  Iowa  318.  But  see 
Laimbeer  v.  Allen,  2  Sand.  (N.  Y.) 
648;  Hathaway  v.  Scott,  11  Paige 
173. 

2  DanieH's  Ch.  Pr.  (2d  Am.  ed.) 
1778. 

3 V.  Christopher,  1 1  Sim.  409. 


1714 


EVIDENCE 


[§339 


my  presence. "  "*  If  the  affiant  have  been  previously  found  by  the 
inquisition  of  a  jury  to  be  an  idiot,  a  lunatic,  or  imbecile,  the 
officer  before  whom  the  affidavit  is  sworn  should  state  in  the  jurat 
that  he  has  examined  the  deponent  for  the  purpose  of  ascertain- 
ing the  state  of  his  mind,  and  that  the  latter  was  apparently  of 
sound  mind  and  capable  of  understanding  the  nature  and  con- 
tents of  the  affidavit.^  The  omission  of  the  addition  to  the 
officer's  signature  of  his  title,^  and  even  the  omission  of  his  sig- 
nature, will  not,  it  seems,  be  a  fatal  defect.^  It  is  usual  and  more 
pi-udent,  even  if  not  absolutely  essential,  for  the  officer  to  mark 
witli  his  initials  all  interlineations  and  erasures  in  the  body  of 
the  affidavit.*  The  better  opinion  is  that  the  seal  of  a  notary  in 
another  State  needs  no  authentication.^ 

§  339.  Competency  of  witnesses  in  civil  cases.  The  testi- 
mony of  witnesses  may  be  taken  either  solely  for  \ise  in  the  court 
taking  tlie  same  or  for  use  in  other  courts  as  well. 

The  Revised  statutes  as  amended  provide:  "Tlie  competency 
of  a  witness  to  testify  in  any  civil  action,  suit,  or  proceeding 
ill  the  courts  of  tlie  United  States  sluill  be  determined  by  the 
laws  of  the  State  or  Territory  in  wliich  tlie  court  is  held."^ 


4Danieirs  Ch.  Pr.  {2d  Am.  eel.) 
1776;  Matter  of  Christie,  .1  Paige 
(N.  Y.)   242. 

5  Matter  of  Christie,  5  Paige  (N. 
Y.)   242. 

6  Hunter  v.  Le  Conte,  6  Cowen 
(N.  Y.)  728;  People  v.  Rensselaer  C. 
P.,  6  Wend.   (N.  Y.)  54:'.. 

7  Chase  v.  Kdwards,  2  Wend.  (  N. 
Y.)   28;{. 

BDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
1777;  Didier  v.  Warner;  1  Code  R. 
(N.  Y.)   42. 

9  Be  Pancost,  129  Fed.  64:".. 

§  :VA9.  1 U.  R.  R.  S.,  §  858,  as 
amende.l  hy  .U  St.  at  L.  618.  For- 
merly tlie  Revised  Statutes  provid- 
ed: "In  the  courts  of  the  United 
States,  no  witness  shall  be  excluded 
in  any  action  on  account  of  color,  or 
in  any  civil  action  because  he  is  a 
].arty  or  interested  in  the  issue 
tried:    pror'ulrd,   that   in    actions   by 


or  against  executors,  administrators, 
or  guardians,  in  which  judgment 
may  be  rendered  for  or  against 
them,  neither  party  shall  be  allowed 
to  testify  against  the  other,  as  to 
any  transaction  with,  or  statement 
by  the  testator,  intestate,  or  ward, 
urdess  called  to  testify  thereto  l)y 
the  opposite  party,  or  required  to 
testify  thereto  l^y  the  court.  In  all 
(ither  respects,  the  laws  of  the  State 
in  which  the  court  is  held  shall  be 
the  rules  of  decision  as  to  the  eom- 
jietency  of  witnesses  in  the  courts  of 
the  United  States  in  trials  at  com- 
mon law,  and  in  equity  and  ad- 
miralty." This  may  modify  some  of 
the  rulings  subsequently  stated  in 
this  section.  It  was  held  not  to  ap- 
ply to  Territorial  courts.  Covbus  v. 
Leonhardt,  114  Fed.  10.  For  its 
•general  apidication  see  James  v.  At- 
hintie  D.  Co.,   ?.  Cliff.   614;   Monon- 


§339] 


COMl'ETENCY  OF  WITNESSES 


171. 


This  statute  is  remedial,  and  dcsorvcs.  tliei-ofore.  a  liberal  t-on- 
stnietioii.^ 

It  applies  as  well  1(t  civil  eaiise^  to  wliieli  the  United  States  is 
a  parly  as  to  lliosc  between  private  persons.'  It  applies  in 
equity,^  in  admiralty.^  It  has  been  held  to  apply  U)  proceedings 
in  banUrui)tcy.^     It  ai)p!ies  to  patent  cases7     It  does  not  apply 


^^ahela  Nat.  Bank  v.  Jacolms,  109  U. 
S.  275,  27  L.  ed.  985;  Whitney  v. 
Fox,  166  U.  S.  687,  41  L.  ed.  1145; 
Hobbs  V.  McLean,  117  U.  S.  567,  29 
L.  ed.  940;  Jaeksonviile  M.  P.  By. 
&  N.  Co.  V.  Hooper,  160  U.  S.  514, 
40  L.  ed.  515;  Slavens  v.  No.  Pac. 
Ry.  Co.,  C.  C.  A.,  97  Fed.  255;  Me- 
Miiilcn  V.  Kitcliie,  64  Fed.  25:{.  See 
S  859. 

The  cases  where  the  court  would 
require  a  jjarty  to  testify  when  oth- 
erwise lie  would  not  be  oblijtod  or 
allowed  so  to  do,  were  rare.  It 
Avoulil  iisually  only  do  so  uixiii  its 
own  motion,  and,  if  uimih  his  sug- 
gestion, only  after  hearing  the  other 
[tarty,  if  the  latter  ol)jecte<l.  Es- 
lava  V.  Mazange,  1  Woods  628.  It 
would  do  so,  however,  when  a  party 
had  died  after  his  testimony  had 
been  taken  and  before  trial,  and  his 
administrator  insisted  upon  reading 
or  submitting  his  testimony  at  the 
hearing.  Mumni  v.  Owens,  2  Dill. 
475.  It  was  said  that  the  eourt 
would  iH)t,  of  its  own  motion,  re 
quire  such  testimony  to  be  taken,  if 
by  so  doing  it  would  ado])t  a  rule  of 
decision  for  a  Federal  court  differ- 
ent from  that  prescribed  l.y  the  leg- 
islature for  courts  of  the  State 
wherein  it  was  held.  Robinson  v. 
Mandell,  8  Cliff.  169. 

2  Texas  v.  Chiles,  21  Wall.  488, 
22  L.  ed.  650. 

3  Green  v.  V.  S.,  9  Wall.  655,  19 
L.  ed.  806.  Contra,  Jones  v.  U.  S.,  1 
Ct.  CI.  888. 

4  Nash   V.  Williams,  20  Wall.  226. 


22  L.  ed.  254;  Butler  v.  Fayer- 
weather,  C.  C.  A.,  91  Fe.l.  458;  Row- 
land V.  Bie.secker,  181  Fed.  128,  S. 
C,  ('.  C.  A.,  185  Fed.  515. 

5  Downs  V.  Wall.  C  ('.  A.,  176 
l"rd.    657. 

6  f.  S.  V.  Sims,  161  Fed.  1008;  U. 
S.  V.  Hughes,  175  Vvi\.  288;  /:>• 
HofTmau.  199  Fe.l.  448. 

7  Rowland   v.   Biesecker,   C.   C.   A., 
185    Fed.    515;    affirming    181    Fed. 
128.     It  has  been   held,   that   wliere 
the    direct    testimony    of    an    expert, 
called    l)y    tlie    comjilainant,    is    con- 
lined    to  a    description  of  the  inven- 
tion    in     suit,    and    the    alleged     in- 
fringing   device,    together    with    the 
expression    of   an    opinion   as   to   the 
infringement;  the  defendant  cannot, 
upon  cross-examination,  require  him 
to   compare  the  jtatent  in  suit   with 
one  in  the  ]>rior  art.     Hnssong  Dye- 
■ng  Mach.   Co.   v.    Philadelphia  Dry- 
ing   Machinery    Co.,    173    Fed.    286. 
See    Thompson-Houston    El.    Co.    v. 
.lolms  Mfg.  Co.,  105  Fed.  249;   Aeo- 
lian   Co.    V.    Simpson-Crawford    Co., 
157    Fed.  .")20.     In  a   suit  to  compel 
the    issue    of    the    jtatent,    evidence 
taken  in  interference  proceedings  is 
not     admissible,     except     where     it 
would,  in   ordinary  cases,  be  admit- 
ted   as    secondary    evidence.      Dover 
V.   Greenwood,   177  Fed.  946.     Upon 
the   issue  of   a    loior   invention,  wit- 
nesses who   testify  as  to   the  use  of 
sucli    invention  by  others  may  prop- 
erly   refresh    their    memories    as    to 
the   dates  of  such   use  by   reference 
to    contemporaneous    newspaper    ar- 


1716 


EVIDENCE 


[§339 


to  criminal  cases.^  It  regulates  the  admission  of  connnunieatioiis 
between  husband  and  wife,^  client  and  attorney, i°  physician  and 
patient,^^  as  to  personal  transactions  with  a  dead  man  ^^  acquisi- 


tit'les  describing  the  invention,  which 
they  read  at  the  time.  Bragg  Mfg. 
Co.  V.  N.  Y.,  141  Fed.  118. 

8U.  S.  V.  Simms,  161  Fed.  1008; 
U.  S.  V.  Miller,  2.36  Fed.  798.  See 
U.  S.  V.  Reid,  12  How.  361,  13  L.  ed. 
1023;  Logan  v.  U.  S.,  144  U.  S.  263, 
36  L.  ed.  429 ;  U.  S.  v.  Hall,  C.  C.  A., 
53  Fed.  352;    infra  §  523. 

9  Be  Hoffman,  199  Fed.  448.  See 
§  523,  infra.  The  former  statute  did 
not  allow  a  wife  to  testify  in  behalf 
of,  or  against,  her  husband,  iinless 
the  laws  of  the  State  permitted  her 
so  to  do.  For  her  incompetency  by 
the  common  law  was  due  not  to  in- 
terest, but  to  grounds  of  public 
policy.  Lucas  v.  Brooks,  18  Wall. 
436,  21  I.  ed.  779.  It  has  been  held 
that  letters  from  a  husband  to  his 
wife,  whether  competent  evidence  or 
not,  must,  if  called  for  by  subpoena, 
be  produced  and  made  a  part  of  the 
record  in  equity  for  use  in  case  of 
a  review  by  appeal  on  the  ruling  as 
to  their  admissibility.  Lloyd  v.  Pen- 
nie,  50  Fed.  4,  11.     See  infra,  §  352. 

10  Butler  v.  Fayerweather,  C.  C. 
A.,  91  Fed.  458;  Se  Ruos,  159  Fed. 
252.  See  U.  S.  v.  Louisville  &  Nash- 
ville R.  R.  Co.,  236  U.  S.  335;  York 
V.  U.  S.,  C.  C.  A.,  224  Fed.  88;  Lew 
Moy  V.  United  States,  C.  C.  A.,  237 
Fed.  150;  Beaven  v.  Stuart,  C.  C.  A., 
250  Fed.  972.     See  infra,  §  523. 

Under  the  former  statute  it  was 
held  that  a  state  statute  permitting 
confidential  communications  to  an 
attorney  to  be  put  in  evidence  would 
not  be  followed  at  common  law  in  a 
Federal  court;  Conn.  Mut.  L.  Ins. 
Co.  V.  Schaefer,  94  U.  S.  457,  24 
L.  ed.  251;  Liggett  v.  Glenn,  C.  C. 
A.,  51   Fed.   381.      And  that  a  con- 


tract between  an  attorney  and  his 
client  is  privileged  and  cannot  be 
put  in  evidence,  although  on  tile  in 
a  court  of  probate.  Liggett  v.  Glenn, 
C.  C.  A.,  51  Fed.  381.  Cf.  Mutual 
L.  Ins.  Co.  V.  Selby,  C.  C.  A.,  72 
Fed.  980;  Edison  El.  L.  Co.  v.  U. 
S.  El.  L.  Co.,  44  Fed.  294,  297,  299. 

11  Conn.  Mut.  L.  Ins.  Co.  v.  Union 
Tr.  Co.,  112  U.  S.  250,  28  L.  ed. 
708;  Mutual  Ben.  Life  Ins.  Co.  v. 
Robinson,  22  L.  R.  A.  325,  58  Fed. 
723;  Union  Fae.  R.  Co.  v.  Thomas, 
C.  C.  A.,  152  Fed.  365. 

12  Rowlan  v.  Biesecker,  C.  C.  A., 
185  Fed.  515;  affirming  181  Fed. 
128  (N.  Y.).  Simons  v.  Cromwell, 
C.  C.  A.,  Jan.  1920,  Fed.;  Kirkpat- 
rick  V.  McBride,  C.  C.  A.,  202  Fed. 
144  (West  Virginia) ;  Johnson  v. 
Johnson,  233  Fed.  756  (Nevada)  ; 
Brawner  v.  Royal  Indemnity  Co.,  C. 
C.  A.,  246  Fed.  637  (Florida);  M. 
B.  Fahey  Tobacco  Co.  v.  Senior  & 
Heusner,  247  Fed.  809;  Central  Iron 
&  Coal  Co.  V.  Hamacher,  C.  C.  A., 
248  Fed.  50  (Alabama)  ;  Bright  v. 
Virginia  &  Gold  Hill  Water  Co.,  254 
Fed.  175  (Nevada).  See  Updike  v. 
Mace,  194  Fed.  1,001,  1,004  (N.  Y.). 
A  State  statute  does  not  affect  the 
rule  in  equity  that  when  there  is  no 
waiver  of  an  answer  under  oath  re- 
sponsive averments  in  such  an  an- 
swer are  evidence  for  the  defendant. 
Kirkpatrick  v.  McBride,  C.  C.  A., 
202  Fed.  144,  West  Virginia. 

But  see  Updike  v.  Mace,  154  Fed. 
1001.  The  former  statute  permitted 
persons  interested  to  testify  on  their 
own  l)ehalf  to  transactions  with 
decedent  in  all  cases  not  excepted  by 
the  Federal  Statute,  although  the 
state     Statutes     included     such    evi- 


§  -339] 


COMPETENCY  VF  WITNESSES 


1717 


tion  of  competency  by  an  interested  witness  upon  his  executing 
a  release,^'  and  as  to  the  authentication  of  foreign  statutes  in 
civil  cases.** 


tlence.  Potter  v.  Third  Nat.  Bank, 
102  U.  S.  16.3,  26  L.  ed.  Ill;  Good- 
win V.  Fox,  129  U.  S.  601,  6:51,  ;^2 
L.  vd.  805,  816;  Snyder  v.  Fiedler, 
1.39  U.  S.  478,  .3.3  L.  ed.  218;  White 
V.  Wansey,  C.  C.  A.,  116  Fed.  34.5; 
Smith  V.  Township  of  Au  Gres, 
Michigan,  C.  C.  A.,  9  L.R.A.  (N.S.) 
876,  150  Fed.  257;  Huntington  Nat. 
Bank  v.  Huntington  Distilling  Co., 
152  Fed.  240;  Miller  v.  Steele,  C.  C. 
A.,  153  Fed.  714.  It  permitted  a 
party  or  interested  person  to  testify 
concerning  a  transaction  with  a 
decedent,  in  an  action  by  or  against 
the  latter 's  legatee;  Miller  v.  Steele, 
C.  C.  A.,  153  Fed.  714;  devisee,  Bar- 
man V.  Harmon,  C.  C.  A.,  70  Fed. 
894;  donee  or  grantee,  under  a  deed 
of  gift,  Fitzpatrick  v.  Graham,  C. 
C.  A.,  122  Fed.  401;  or  trustee  in 
bankruptcy,  Smith  v.  Township  of 
Au  Gres,  Michigan,  C.  C.  A.,  9 
L.R.A.  (N.S.)  876,  1.50  Fed.  257. 
Where  an  administratrix  had  com- 
menced a  suit  and  subsequently  re- 
signed, and  the  suit  was  continued 
by  her  successor,  it  was  held  that 
she  who  began  the  suit  was  a  com- 
petent witness  as  to  transactions 
with  the  testator.  Lucas  v.  Brooks, 
18  Wall.  436,  21  L.  ed.  779;  Bassett 
V.  U.  S.,  137  U.  S.  496,  505,  .34  L. 
ed.  762.  She  could  not  testify  in 
the  District  of  Columbia.  Hopkins 
V.  Grimshaw,  165  U.  S.  342,  349,  41 
L.  ed.  739.  If  there  are  several  de- 
fendants, one  of  whom  has  a  simi- 
lar interest  in  the  result  to  that  of 
the  complainant,  such  defendant 
cannot,  by  requiring  the  complain- 
ant to  testify,  obviate  the  effect  of 
the  proviso  in  this  statute.  Eslava 
v.  Mazange,  1  Woods  623. 

Fed.  Prac.  Vol.  11—38 


13  Alexan<ier  v.  Fidelity  Tru.st  Co., 
238  Fed.  938. 

14  Nashua  Sav.  Bank  v.  Anglo- 
American  Land,  Mtge.  &  Agency 
Co.,  189  U.  S.  221,  228,  47  L.  ed. 
782,  785;  Pierce  v.  Indseth,  106  U. 
S.  .546,  27  L.  ed.  254;  Calderon  v. 
O  'Donohue,  U.  S.  C.  C,  S.  D.  N.  Y., 
jjer  Wheeler,  D.  J.,  June,  1891  ;  in 
which  latter  case  the  writer  waf 
counsel.  The  evidence  of  an  attor- 
ney of  a  foreign  country,  when  ac- 
comj)anipd  liy  a  book  which  he  states 
is  an  official  copy  of  the  statute,  is 
suffi-ient  to  prove  the  same.  Nashua 
Sav.  Bank  v.  Anglo-American  Land, 
Mtge.  &  Agency  Co.,  189  U.  S.  221, 
227,  47  L.  ed.  782,  785.  It  is  the 
better  practice  to  have  the  attor- 
ney also  testify  to  the  construction 
of  the  statute.  The  Asiatic  Prince, 
C.  C.  A.,  108  Fed.  287,  289;  Badische 
Anilin  &  Soda  Fabrik  v.  Klipst«in  & 
Co.,  125  Fed.  543;  where  German 
lawyers  testified  that  cert<Tin  actt 
under  the  German  law  made  the 
parties  a  corporation.  The  testi- 
mony of  an  attorney,  who  does  not 
produce  the  statute  upon  the  sub- 
ject may  also  be  sufficient.  Re  In- 
ternational Mahogany  Co.,  C.  C.  A., 
147  Fed.  147;  The  Asiatic  Prince, 
C.  C.  A.,  108  Fed.  287,  289;  where 
the  attorney  testified  that  by  the 
law  of  Brazil,  the  delivery  of  duti- 
able goods  must  be  made  to  the  cus- 
tom authorities,  upon  whom  de- 
volved the  allowance  of  entry  and 
the  responsibility  for  a  delivery  of 
the  goods  to  the  proper  persons  on 
payment  of  the  duties. 


1718 


EVIDENCE 


[§339 


A  certificate  of  an  ambassador  was  admitted  as  evidence  of  the 
law  of  the  country  which  he  represented.^^ 

In  civil  cases  the  State  law  is  now  followed  in  determining  the 
disqualification  of  a  witness  because  of  his  conviction  of  a 
crime. ^®  Evidence  of  an  indictment  is  not  competewt  to  affect 
a  witness's  credibility.^''' 

The  ^lichigan  statute  as  to  statements  to  tax  assessors  ^®  makes 
them  inadmissible  in  evidence  in  the  Federal  courts. ^^  The  New 
York  statute  which  provides  that  when  a  mortgage  tax  has  not 
been  paid  the  mortgage  shall  not  be  admitted  in  evidence,  was 
not  followed  by  the  Federal  court.^**  Where  a  State  statutes 
authorized  the  admissibility  in  evidence  of  a  notarial  certificate 
of  «  form  inadmissible  at  common  law,^^  and  the  indorsement 
of  negotiable  paper  without  proof  of  handwriting,^^  the  Federal 
courts  there  held  followed  them. 

The  Circuit  Court  of  Appeals  for  the  second  circuit  has  form- 
ally disapproved  the  practice  of  testimonj-  as  an  expert  by 
counsel  for  a  party  to  the  suit.''' 


16  Agency  of  Canadian  Car  &  F. 
Co.  V.  American  Can  Co.,  253  Fed. 
152. 

16  Wise  V.  Williams,  162  Fed.  161. 
It  has  been  held  that  an  objection 
and  exception  to  evidence  upon  this 
ground  were  not  waived  because  the 
objector 's  counsel  afterwards  said 
before  the  jury:  "We  are  not  seek- 
ing to  keep  anything  back,  for  the 
damage  has  already  been  done,  and 
it  is  all  for  the  jury;  but  we  would 
like  for  him  to  explain,  as  he  stated 
he  could  a  while  ago. ' '  Walker 
Grain  Co.  v.  Blair  Elevator  Co.,  C. 
C.  A.,  254  Fed.  422. 

17  Walker  Grain  Co.  v.  Blair  Ele- 
vator Co.,  C.  C.  A.,  254  Fed.  422. 

18  Compiled   Laws  1897,   §3846. 
19i?e  Reid,  155  Fed.  933. 

20  Marsh  v.  Leseman,  C.  C.  A.,  242 
Fed.  484. 

21  Sims  V.  Hundley,  6  How.  1,  12 
L.  ed.  319. 

22M'Niel  v.  Holbrook,  12  Pet.  84, 
9  L.  ed.  1009. 


23  N.  Y.  C.  &  H.  R.  R.  Co.  v.  Hen- 

ney,  C.  C.  A.,  207  Fed.  78.  As  to 
testimony  of  experts  as  to  profits 
and  damages  in  patent  cases,  see 
infra,  §S  389b,  389e.  The  testimony 
of  experts  as  to  the  meaning  of 
words  which  were  not  technical  con- 
tained in  letters  patent  was  ex- 
cluded. Safety  Car  Heating  & 
Lighting  Co.  v.  Gould  Coupler  Co., 
C.  C.  A.,  239  Fed.  861.  In  an  action 
for  personal  services  in  effecting  a 
settlement  resulting  in  the  confes- 
sion of  a  judgment  for  infringement 
of  filter  patents,  a  witness  familiar 
with  the  patent  situation  with  re- 
spect to  filters  was  allowed  to  testify 
as  to  the  value  of  such  services. 
Moore  Filter  Co.  v.  Taugher,  C.  C. 
A.,  239  Fed.  105. 

A  witness  in  a  position  to  form  an 
intelligent  estimate  was  allowed  to 
testify  to  the  proportion  of  sub- 
scribers to  a  magazine  for  a  year 
whicli  has  been  secured  by  the 
plaintiff   and  the  defendant,  respec- 


§  -m] 


OniPETEN'CY  OF  WITXESSES 


1719 


It  is  the  rule  in  the  Fedoral  courts  that  cross  examinations 
must  be  limited  to  the  testimony  given  in  chief  and  to  such  other 
matter  as  affect  the  credibility  of  the  witness.'^*  A  State  statute 
givin«?  a  party  an  unlimited  right  to  cross  examine  his  adversary 
will  not  be  followed  ;2^  but  in  Massachusetts  the  Federal  court 
followed  tile  rule  estal)lishcd  l)y  the  State  decisions,  that  the 
former  testimony  of  a  witness  may  be  introduced  to  impeach  his 
testimony  upon  the  trial  without  calling  his  attention  thereto, 
unless  he  has  been  called  by  the  party  seeking  to  impeach  him.^^ 
There  are  matters  largely  within  the  discretion  of  the  trial 
co\irt.^' 

It  has  been  said  ihat  the  statute  making  the  State  law  govern 
as  to  i-ompetency  of  witnesses  antl  not  to  the  admissibility  of 
evideiu-e,^^  such  as  conversaticms  to  contradict  a  written  instru- 
ment.^^  In  the  Federal  courts,  no  matter  what  the  decisions 
of  the  State  courts  may  be,  a  verbal  collateral  agreement  cannot 
be  proven  to  vaiy,  (pialify,  contradict,  add  to  or  subtract  from 
the  absolute  terms  of  a  written   instrument,  in  the  absence  of 


tively,  when  it  was  iiraftically  im- 
|ioasil)le  to  asi-ertain  the  exact  num- 
Ijer  secured  by  each.  Chautauqua 
Institution  v.  Zinnnernian,  C.  C.  A., 
2.".:!  Fed.  :171.  An  expert  was  al- 
lowed to  testify  that  sears  were 
caused  by  acid  burns.  Am.  Agricul 
tiual  fheniical  Co.  v.  Hojjan,  C.  C. 
A.,  '21.5  Fed.  416.  In  a  criminal  case 
a  witness  who  had  heard  all  the  tes- 
timony taken  upon  the  trial  and 
read  tlie  testimony  taken  out  ot 
court  and  reail  to  the  .jury  was  al- 
lowed to  testify  wliat  function  an 
alleged  remedy  had  had  in  curing 
the  diseases  mentioned:  where  he  an- 
alyzed the  medical  cases  into  three 
groups;  those  in  wliich  the  presence 
of  other  diseases  which  he  enumer- 
at<"d  and  descril)ed  were  indicated 
and  those  in  which  the  narratives 
of  patients  descril)ed  no  pathologi- 
cal condition  or  disease  capable  of 
identification;  and  as  to  each  group 
gave  the  reasons  why  in  his  opinion 
tlie      device      accomplished      nothing 


which  wonhl  not  have  happened 
without  its  use.  Moses  v.  U.  S.,  C. 
I'.   A.,  221  Fed.  86:5. 

24  Am.  Issue  Pub.  Co.  v.  Sloan,  C. 
C.  A.,  248  Fed.  251 ;  Myrick  v.  U.  S., 
210  Fed.   1. 

25  Am.  Issue  Pub.  Co.  v.  Sloan,  C. 
C.  A.,  248  Fed.  2.')1,  affirming  D.  C. 
S.  D.  Ohio. 

26  .\m.  Agricultural  Chemical  Co. 
V.  Hogan,  C.  C.  A.,  21.1  Fed.  416, 
42(1. 

27  .-Viii.  Agricultural  Chemical  Co. 
V.  Hogan,  C.  C.  A.,  213  Fed.  418. 
420;  Cuonin  V.  T'.  S..  C.  C.  A..  2M 
Fed.    116. 

28  Downs  V.  Wall.  C.  C.  A..  176 
Fed.  e.')?;  I'nion  Pac.  Ry.  Co.  v. 
Yates,  C.  C.  A.,  40  L.R.A.  55:<,  79 
Fed.  584.  But  see  Hinds  v.  Keith, 
C.  C.  A.,  57  Fed.  10;  Baltimore  &  O. 
R.  Co.  V.  Rambo,  C.  C.  A.,  59  Fed. 
75:  Stewart  v.  Morris,  C.  C.  A.,  83 
K.>d.  461. 

29  Ihid. 


1720  EVIDENCE  [§  339 

fraud,  accident,  or  mistake ;  ^^  nor  to  show  by  parol  that  payment 
was  to  be  made  in  some  other  way  than  that  specified  in  the 
writing.^^ 

Statements  made  by  a  party  through  an  interpreter  upon  an 
examination  by  an  administrative  officer,  are  admissible  when  the 
interpreter  testifies  that  they  are  correct  translations  of  the  an- 
swers then  given,  although  the  questions  were  not  recorded.^^ 

At  least  in  the  absence  of  a  State  law  to  the  contrary,  in  the 
courts  of  the  United  States  a  party  may  be  examined  de  bene 
esse  by  his  adversary  in  cases  where  a  stranger  could  be  so  ex- 
amined,^^  and  he  may  testify  in  his  own  behalf,  as  well  as  when 
called  upon  by  the  others.^*  Upon  the  second  trial  of  an  action 
in  a  Federal  court,  a  party  can  prove  the  testimony  given  at  the 
former  trial  by  a  witness,  who  has  since  died  ^^  but  when  such 
testimony  does  not  materially  differ  from  that  given  by  the  same 
witness  in  a  deposition  read  in  the  second  case,  it  is  not  error  to 
exclude  it.^^  It  is  insufficient  proof  of  the  same  merely  to  pro- 
duce a  witness,  who  testifies  to  the  correctness  of  the  printed 
transcript  of  such  testimony  in  the  record  in  the  former  suit,  and 
then  to  offer  in  evidence  such  parts  of  the  printed  testimony  as 
counsel  deems  material  or  important  to  his  case.^"'  It  has  been 
held  that  the  testimony  of  a  living  witness,  given  upon  a  former 

30  Brown  v.  Spofford,  95  U.  S.  with  one,  taken  while  the  latter  was 
474,  24  L.  ed.  508;  Am.  El.  C.  Co.  alive,  was  admitted  in  evidence,  al- 
V.  Consumers'  Gas  Co.,  47  Fed.  43,  though  the  latter  died  without  giv- 
4g_  ing  his  deposition,  and  the  suit  was 

31  Richardson  v.  Hardwick,  106  U.  revived  in  the  name  of  the  execu- 
S.  252,  27  L.  ed.  145;  Bast  v.  First  tors.  McMullen  v.  Ritchie,  64  Fed. 
Nat.  Bank,  11  U.  S.  93,  25  L.  ed.  253;  Steiner  v.  Eppinger,  C.  C.  A., 
794.  61  Fed.  253. 

32  Toy  Dip  V.  U.  S.,  C.  C.  A.,  198  34  Stevens    v.    Bernays,    42    Fed. 
Fed.  603.    In  Guan  Lee  v.  U.  S.,  C.  488;     Potter    v.    Third    Nat.    Bank, 
0.    A.,   198   Fed.    596,    601,   the   an-  102  U.  S.  163,  26  L.  ed.  111. 
swers     were      admissible,      although  35  Green    v.    Terwilliger,    56    Fed. 
they  were  written  down  at  the  time  384,  393. 

by   a   different   person   than   the   in-  36  Brown    v.    Spofford,    95    U.    S. 

terpreter  and  the  writer  did  not  tes-  474;   Am.  El.  C.  Co.  v.   Consumers' 

tify  that  he  could  not  recollect  what  Gas  Co.,  47  Fed.  43,  46. 
was    said   without    referring    to    the  37  Rumf ord     Chemical     Works    v. 

paper.  Hygienic    Chemical    Co.,    148    Fed. 

33Lowroy    v.    Kusworm,    66    Fed.  862. 
539,    A  deposition  as  to  transactions 


§  339]  COMPETENCY  OF  WITNESSES  1721 

trial  of  the  same  ease,  cannot  be*  read  in  evidence,  although  he  is 
beyond  the  district  and  more  than  one  hundred  miles  from  the 
place  of  trial.38  The  testimony  of  a  party  that  he  does  not  know 
the  whereabouts  of  a  witness,  without  proof  of  any  effort  to  ascer- 
tain it,^^  or  tliat  the  witness  promised,  but  failed,  to  be  present, 
is  insufificient  as  a  basis  for  the  introduction  of  the  testimony  of 
the  witness  in  a  former  ease  as  secondary  evidence.*''  It  has  been 
said  that,  where  a  transcript  of  such  testimony  is  admissible  by 
the  State  practice,  it  may  be  admitted  ill  the  Federal  court  in  an 
action  at  common  law,**  but  not  where  material  exhibits,  to 
which  he  referred  when  examined,  are  not  offered  in  evidence.*^ 

It  has  been  held,  that  parol  evidence  of  a  judge  to  show  the 
grounds  of  an  order  made  by  him  is  incompetent.*^ 

The  admissions  of  a  party  are  competent  evidence  against  him, 
even  though,  upon  his  cross-examination,  when  testifj'ing  in  his 
own  behalf,  he  was  not  asked  if  he  made  them.** 

The  exclusion  of  a  question,  asked  of  an  arresting  officer  on 
cross-examination  as  to  what  defendants  said  when  arrested,  was 
held  not  error  reversible  where  they  testified  fully  in  denial  of 
the  charge.*^ 

The  rules  for  the  collection  of  internal  revenue  forbid  the  col- 
lectors to  ])roduce  the  records,  or  copies  thereof,  in  a  State 
eourt.*^     They  are  also  directed  to  decline  to  testify  as  to  facts 

38  Diamond  Coal  &  Coke  Co.  v.  45  Fields  v.  U.  S.,  C.  C.  A.,  221 
Allen,  C.  C.  A.,  137  Fed.  705.  Fed.  242. 

39  Dover  v.  Greenwood,  177  Fed.  46 ' '  All  records  in  the  offices  of 
946.  collectors   of  internal  revenue  or  of 

40  Chicago,  M.  &  St.  P.  By.  Co.  v.  any  of  their  deputies  are  in  their 
Newsome,  C.  C.  A.,  174  Fed.  394.  custody  and  control  for  purposes  re- 

41  Chicago,  St.  P.,  M.  &  0.  Ey.  lating  to  the  collection  of  the  rev- 
Co.  V.  Myers,  C.  C.  A.,  80  Fed.  361,  enues  of  the  United  States  only. 
365,  25  C.  C.  A.,  486.  Contra,  dicta  They  have  no  control  of  them  and 
in  Diamond  Coal  &  Coke  Co.  v.  Al-  no  discretion  with  regard  to  permit- 
len,  137  Fed.  705.  ting  the  use  of  them  for  any  other 

42  Chicago,  St.  P.,  M.  &  0.  Ry.  i)urpose.  Collectors  are  hereby  pro- 
Co.  V.  Myers,  C.  C.  A.,  80  Fed.  361,  hibited  from  giving  out  any  special 
365,   25    C.   C.   A.   486.  tax  records  or  any  copies  thereof  to 

43  Blue  M.  I.  &  S.  Co.  v.  Portner,  private  persons  or  to  local  officers, 
C.  C.  A.,  131  Fed.  57,  60.  or  to  produce  such  records  or  copies 

44  The  Stranger,  1  Brown's  Adm.  thereof  in  a  State  court,  whether  in 
281.  answer  to  subpoenas  duces  1ecu7n  or 


1722 


EVIDENCE 


§  339 


contained  in  the  records,  or  cOming  to  their  knowledge  in  their 
official  capacity;  and  this  prohibition  is  extended  to  include  also 
internal  revenue  storekeepers  and  gaugers,  and  agents.  This 
rule  was  authorized  by  the  general  authority  conferred  upon  the 
Secretary  of  the  Treasury  by  the  Revised  Statutes  of  the  United 
States;*'  and  a  revenue  officer,  who  has  been  punished  by  a 
State  court  for  contempt  in  refusing  to  produce  copies  of  reports 
made  to  him  by  distillers,  or  of  other  records,  will  be  released 
upon  a  writ  of  habeas  .corpus  by  the  Federal  courts.*^ 

By  statute,  on  the  trial  of  all  indictments,  informations,  com- 
plaints, and  other  proceedings  against  persons  charged  with  the 


otherwise.  Whenever  such  subpc&- 
nas  shall  have  been  served  upon 
them,  they  will  appear  in  court  in 
answer  thereto  and  respectfully  de- 
cline to  produce  the  records  called 
for,  on  the  ground  of  being  prohib- 
ited therefrom  by  the  regulations  of 
this  department.  The  information 
contained  in  the  records  relating  to 
special  tax  payers  in  the  collector's 
office  is  furnished  by  these  persons 
under  compulsion  of  law  for  the  pur- 
pose of  raising  revenue  for  the  Unit- 
ed States;  and  theVe  is  no  provision 
of  law  authorizing  the  sending  out 
of  tliese  records  or  of  any  copies 
thereof  for  use  against  the  special 
tax  payers  in  eases  not  arising  un- 
der the  laws  of  the  United  States. 
The  giving  out  of  such  records  or 
any  copies  thereof  by  a  collector  in 
such  cases  is  held  to  be  contrary  to 
public  policy  and  not  to  be  per- 
initted.  As  to  any  other  records 
than  those  relating  to  special  tax 
payers,  collectors  are  also  forbidden 
to  furnish,  them  or  any  copies  there- 
of at  the  request  of  any  person. 
Where  copies  thereof  are  desired  for 
the  use  of  parties  to  a  suit,  whether 
in  a  State  court  or  ia  a  court  of  the 
United  States,  collectors  should  re- 
fer the  persons  interested  to  the  fol- 
lowing paragraph   in  rule   X   of   the 


rules  and  regulations  of  the  Treas- 
ury Department,  namely:  'In  all 
cases  where  copies  of  docmnents  or 
records  are  desired  by  or  on  behalf 
of  parties  to  a  suit,  whether  in  a 
court  of  the  United  States  or  any 
other,  such  copies  shall  be  furnished 
to  the  court  only  and  on  a  rule  of 
the  court  upon  the  Secretary  of  the 
Treasury  requesting  the  same. ' 
Whenever  such  rule  of  the  court 
shall  have  l;eeu  obtained  collectors 
are  directed  to  carefully  prepare  a 
copy  of  the  record  or  document  con- 
taining the  information  called  for 
and  send  it  to  this  oflfiee,  whereupon 
it  will  V)e  transmitted  to  the  Secre- 
tary of  the  Treasury  with  a  request 
for  its  authentication,  under  the 
seal  of  the  department,  and  trans- 
mission to  the  judge  of  tlie  court 
calling  for  it,  unless  it  should  be 
found  that  circumstances  or  condi- 
tions exist  which  make  it  necessary 
to  decline,  in  the  interest  of  the 
l>ublic  service,  to  furnish  such  a 
copy. ' '  Be  Valecia  Condensed  Milk 
Co.,  C.  C.  A.,  240  "Fed.  .310,  .313. 

47  U.   S.   E.   S.,   §  161. 

48  Boske  V.  Comingore,  177  U.  S. 
459.  460,  461,  44  L.  ed.  846,  847; 
s.  c.  Be  Comingore,  96  Fed.  .552; 
Stegall  V.  Thurman,  175  Fed.  813. 
See  Be  Lamberton,  124  Fed.  44^. 


jj  :ma 


SELP^  IXCRIMIXATinX 


1723 


eomraission  of  crimes,  offenses,  and  misdemeanors  in  the  United 
States  courts,  Territorial  courts,  and  courts-martial,  and  courts 
of  inquiry,  in  any  State  or  Territory,  including  the  District  of 
Columbia,  the  person  so  charged  shall,  at  his  own  request,  but  not 
otherwise,  be  a  competent  witness.*® 

A  conviction  of  embezzlement.^"  oi-  of  forgery,*^  or  of  making 
false  reports  under  them  to  the  Comptroller  of  the  Currency," 
does  not  dis(]ualify  a  witness,  unless  the  laws  of  the  State  so 
provide. 

By  the  Act  of  -lune  1:1  ISIIS:  "Hereafter  no  instrument, 
paper,  or  document  re(]uired  by  law  to  be  stamped,  which  has 
been  signed  or  issued  withoiit  being  duly  stamped,  or  with  a  de- 
ficient stamp,  nor  any  copy  thereof,  shall  be  recorded  or  ad- 
mitted, or  used  as  evidence  in  any  court  until  a  legal  stamp  or 
stamps,  denoting  the  amount  of  tax.  shall  have  been  affixed 
thereto,  as  prescribed  by  law:  Pi-ovi<l(>(l.  That  any  bond,  de- 
benture, certificate  of  stock,  or  certificate  of  indebtedness  issued 
ill  any  foreign  country  shall  pay  the  same  tax  as  is  rerpiired  In- 
law on  similar  instruments  when  issued,  sold,  or  transferred  in 
the  United  States ;  and  the  party  to  whom  the  same  is  issued,  or 
by  whom  it  is  sold  or  ti-ansfei-red,  shall,  before  selling  or  trans- 
ferring the  same,  affix  thereon  the  .stamp  or  stamps  indicating 
the  fax  rf^qnired."  ^^ 

§339a.  Self  incrimination.  The  Fifth  Amendment  to  the 
Federal  Constitution  ordains  that  no  person  "shall  be  compelled 
ill  anv  criminal  case  to  be  a  witness  against  himself."^     This 


49  20  St.  at  L.  30;  Allisou  v.  U. 
S.,  3  60  U.  S.  203,  40  L.  ed.  395; 
Wolfson  V.  U.  S.,  C.  C.  A.,  101  Fed. 
430,  s.  c,  102  Fed.  134. 

50  V.  R.  V.  Sims,  161  Fed.  1008; 
Keliher  v.  V.  S.,  C.  C.  A.,  193  Fed. 
8 ;  both  under  U.  S.  R.  S.,  §  5209, 
Comp.   St.   1901,  p.   3497. 

BlO'Loary  v.  V.  S.,  C.  C.  A..  158 
Fed.  796;  under  U.  S.  R.  S.,  §5425, 
Comp.  St.   1901,  ]i.  3669. 

62  Wise  V.  Williams,  162  Fed.  161  ; 
under  12  St.  at  L.  Cli.  189,  p.  588. 
It  has  been  held  that  this  does  not 
render  competent  a  defendant  who, 
by   a   previous   conviction   of   an   in- 


famous crime,  had  lost  the  privilege 
of  testifying.  U.  S.  v.  Hollis,  43 
Fed.  248. 

53  30    St.    at    L.    455,    Comp.    St., 

s  6;;  18. 

§  339a.  1  For  the  prerevolutionary 
lii.story  of  this  constitutional  provi- 
sion, see  Harv.  L.  Rev..  XV.,  610.  It 
was  held  that  a  witness  compelled  to 
testify  before  a  pension  examiner 
without  notice  or  knowledge  of  his 
constitutional  privilege  cannot  be 
indicted  for  perjury  thereupon. 
V.  S.  v.  Bell,  81  Fed.  830.  A  wit- 
ness, at  least  if  not  a  party  to  the 
suit,  may  be  compelled  to  testify  as 


1724 


EVIDENCE 


[§339a 


ordinance  which  was  intended  merely  to  forbid  tortures  has  been 
given  such  a  forced  construction  by  many  courts  of  the  United 
States  that  it  is  a  serious  impediment  to  the  administration  of 
justice. 

It  applies  to  criminal  proceedings  to  punish  for  contempt  of 
court.^  It  does  not  apply  to  corporations.^  It  has  been  held 
that  it  does  not  apply  to  proceedings  before  a  grand  jury,*  al- 
though a  witness  there  has  the  right  under  the  common  law  to 
refuse  to  criminate  himself.^  "The  constitutional  provision  is 
but  the  affirmance  of  the  common  law  maxim,  'Nemo  tenetur 
scipsum  accusare.'  It  cannot  be  understood  without  knowledge 
of  the  common  law  rule,  and  is  to  be  interpreted  thereby.  It  is 
intended  solely  to  prevent  disclosures  by  persons  acting  as  wit- 
nesses in  any  investigation  and  has  no  logical  or  historical  rela- 
tion to  the  rights  of  parties  as  such."®    An  involuntary  con- 


to  an  infringement  of  a  patent  by 
himself,  wlien  relevant,  and  is  not 
shielded  by  the  Constitution  because 
he  may  thereby  prove  his  own  liabil- 
ity to  treble  damages.  Masseth  v. 
Johnston,  59  Fed.  613.  A  defendant 
when  called  by  the  complainant  as  a 
witness  may  be  compelled  to  state 
whether  he  has  in  his  possession  a 
machine  claimed  to  be  an  infringe- 
jnent  of  the  plaintiff 's  patent,  al- 
though the  plaintiff  has  not  previ- 
ously made  out  a  prima  faeie  case  of 
infringement.  Delamater  v.  Rein- 
hardt,  43  Fed.  76,  S.  D.  N.  Y.  Con- 
tra, Celluloid  Co.  v.  Crane  Co.,  3d 
Circuit.  A  party  may  be  compelled 
to  produce  an  application  for  a  pat- 
ent which  has  not  been  issued  and 
correspondence  with  the  Patent  Of- 
fice upon  the  subject,  although  he 
claims  that  the  result  will  be  to  dis- 
close confidential  communication 
with  his  attorneys.  Edison  El.  L. 
Co.  V.  U.  S.  El.  L.  Co.,  45  Fed.  55; 
and  s.  c,  44  Fed.  294.  But  see 
Rule  15  of  Patent  Office;  U.  S.  R.  S., 
§  4902. 

This   does  not  prevent  the   denial 


of  an  application  for  a  discharge  in 
bankruptcy  because  of  the  refusal  of 
the  bankrupt  to  answer  questions 
upon  his  examination  in  the  proceed- 
ing although  his  answer  may  tend 
to  criminate  him.  Re  Dresser,  C.  C. 
A.,  146  Fed.  383.  But  it  has  been 
held  that  a  petitioner  in  admiralty 
for  limitation  of  liability  may  re- 
fuse upon  this  ground  to  answer  an 
interrogatory  annexed  to  the  answer. 
La  Bourgogne,  104  Fed.  823. 

2  Hammond  Lumber  Co.  v.  Sail- 
ors '  Union  of  the  Pacific,  167  Fed. 
809;  infra,  §§430,  430a,  430b,  430c. 

3  Hale  v.  Henckel,  202  U.  S.  43, 
50  L.  ed.  652;  Wilson  v.  U.  S.,  221 
U.  S.  361,  55  L.  ed.  771. 

4  U.  S.  V.  Price,  163  Fed.  904. 

5  Ibid.  But  see  Counselman  v. 
Hitchcock,  142  U.  S.  574;  15  Sup, 
Ct.  195;  35  L.  ed.  140. 

6  U.  S.  V.  Price,  163  Fed.  904,  per 
Hough,  J.,  citing,  Counselman  v. 
Hitchcock,  142  U.  S.  574,  12  Sup. 
Ct.  195,  35  L.  ed.  1110;  Kepner  v. 
IT.  S.,  195  U.  S.  100,  24  Sup.  Ct.  797, 
49  L.  ed.  114;  U.  S.  v.  Wong  Kim 
Ark,  169  U.  S.  649,  18  Sup.  Ct.  456, 


§  339a] 


SELF  INCRIMINATION 


172: 


fession  cannot  be  put  in  evidence,  even  to  impeacli  an  accused, 
who  has  testified  in  his  own  behalf.'' 

This  does  not  permit  a  corporation,*  or  officer,®  or  employee  ^° 
thereof,  to  refuse  to  produce  its  books  because  it  might  tend  to 
criminate  the  company  or  the  individual  subpoenaed.  The  disso- 
lution of  the  corporation  does  not  relieve  its  officer  or  employee 
from  such  production  of  any  books  or  papers  in  his  possession.!^ 
It  is  the  safer  practice,  when  books  are  needed  for  this  purpose, 
to  serve  a  snhpoena  duces  tecum  without  the  clause  ad  testifican- 
dum and  to  address  this  to  the  corporation,  not  to  the  individual 
having  the  custody  of  the  books.^^ 

It  does  not  permit  a  bankrupt  to  refuse  to  deposit  his  books 
with  his  receiver  in  bankruptcy,  because  he  claims  that  they 
would  tend  to  criminate  him.^^ 

An  attorney  may  be  compelled  to  produce  books  and  papers, 
belonging  to  his  client,  or  to  a  corporation,  in  which  his  client  is 
the  sole  stockholder,  when  they  tend  to  incriminate  the*  latter ; 
provided  that  they  were  given  to  him  not  for  the  purposes  of 


42  L.  ed.  890;  Brown  v.  Walker,  C. 
C.  A.,  70  Fed.  48. 

7Harrold  v.  Oklahoma,  C.  C.  A., 
169  Fed.  47.  The  retention,  how- 
ever, by  the  prosecuting  authorities, 
of  a  statement  made  by  the  accused, 
is  not  the  ground  of  an  exception 
if  they  do  not  use  it  upon  the  trial. 
Pendleton  v.  U.  S.,  216  U.  S.  305,  54 
L.  ed.  491.  Under  U.  S.  R.  S.,  §  860, 
which  has  been  repealed,  it  was  held 
that  a  party  who  had  testified  volun- 
tarily did  not  waive  his  right  to  ob- 
ject to  the  subsequent  use  of  such 
testimony.  Hammond  Lumber  Co. 
V.  Sailors'  Union  of  the  Pacific,  167 
Fed.  809. 

8  Wilson  V.  U.  S.,  221  U.  S.  .S61, 
55  L.  ed.  771;  Be  Bornn  Hat  Co., 
184  Fed.  506;  U.  S.  v.  Armour  & 
Co.,  142  Fed.  808.  Orvig  Dampskib- 
selskap  Actieselskabat  v.  N.  Y.  & 
Bermuda  Co.,  229  Fed.  29.3. 

It  is  no  excuse  for  a  failure  to 
produce  the  books,  that  the  tribunal 


intends  to  extend  its  examination  to 
matters  over  which  it  has  no  juris- 
diction, when  the  n\atter  subpoenaed 
is  relevant  to  a  i)roceeding  legiti- 
mately before  it.  U.  S.  v.  Calhoun, 
184  Fed.  499. 

uHale  V.  Henkel,  201  U.  S.  43, 
50  L.  ed.  652;  Dreier  v.  U.  S.,  221 
U.  S.  ;?94,  55  L.  ed.  784;  Wilson  v. 
U.  S.,  221  U.  S.  361,  55  L.  ed.  771; 
Wheeler  v.  U.  S.,  226  U.  S.  478,  57 
1^.  ed.  — ;  Grant  v.  U.  S.,  227  U. 
S.  74,  80,  57  L.  ed.  — ;  Be  Bornn 
Hat  Co.,  184  Fed.  506;  Contni,  Be 
Chapman,  153  Fed.  371. 

10  Grant  v.  U.  S.,  227  U.  S.  74, 
57  L.  ed.  — ,  affirming  198  Fed.  708. 

11  Wheeler  v.  U.  S.,  226  U.  S.  478, 
57  L.  ed.  — ;  Grant  v.  U.  S.,  227 
U.  S.  74,  affirming  198  Fed.  708. 

12  Wilson  v.  U.  S.,  221  U.  S.  361. 
55  L.  ed.  771 ;  ^^'^u'eler  v.  U.  S.,  226 
U.   S.   478. 

13  Matter  of  Harris,  221  U.  S. 
274,  55  L.  ed.  732. 


1726 


EVIDENCE 


[§339a 


advice,  but  iu  order  to  keep  them  from  the  prosecuting  officers, 
and  he  may  be  compelled  to  open  the  package  containing  them  in 
order  to  ascertain  their  contents.^* 

The  privilege  cannot  be  claimed  until  the  person  affected  has 
been  sworn  as  a  witness,!^  and  he  must  satisfy  the  court,  by  some- 
thing more  than  his  mere  assertion,  that  there  is  reasonable 
ground  for  the  objection.^^  A  remote  or  speculative  possibility 
of  danger  to  a  witness  does  not  justify  his  refusal. ^''^ 

ITpon  the  trial  of  Aaron  Burr,  Chief  Justice  Marshall  said : 
' '  If  the  question  be  of  such  a  description  that  an  answer  to  it 
may  or  may  not  incriminate  the  witness,  according  to  the  pur- 
port of  that  answer,  it  must  rest  with  himself,  who  alone  can 
tell  what  it  would  be,  to  answer  the  question  or  not.    If,  in  such 
a  case,  he  say  upon  his  oath,  that  his  answer  would  criminate 
himself,  the  court  can  demand  no  other  testimony  of  the  fact." 
•'Many  links  frequently  compose  that  chain  of  testimony  which 
is  necessary  to  convict  any  individual  of  a  crime.    It  appears  to 
the  court  to  be  the  true  sense  of  the  rule,  that  no  witness  is  com- 
pellable to  furnish  any  one  of  them  against  himself.     It  is  cer- 
tainly not  only  a  possible,  but  a  probable  case,  that  a  witness,  by 
disclosing  a  single  fact,  may  complete  the  testimony  against  him- 
self;  and  to  every  effectual  purpose  accuse  himself  as  entirely 
as  he  would  by  stating  every  circumstance  which  would  be  re- 
quired for  his  conviction.    That  fact  of  itself  might  be  unavail- 
ing, but  all  other  facts  without  it  would  be  insufficient.    While 
that  remains  concealed  within  his  own  bosom,  he  is  safe;  but 
draw   from  thence,   and  he  is  exposed  to  a   prosecution.     The 


14  Grant  v.  U.  S.,  227  U.  S.  74, 
.'37  L.  e<l.  — ,  affirming  198  Fed.  708. 

15  U.  S.  V.  Collins,  14.5  Fed.  709; 
Marshall,  C  J.,  in  Burr's  Trial, 
Robertson's  Rep.,  I,  243;  Wiormore 
on  Evidence,  §  2271. 

,ieU.  S.  V.  Collins,  145  Fed.  709; 
Mason  v.  U.  S.,  244  U.  S.  362;  Barr 
V.  People,  30  Colo.  522,  71  Pac.  392; 
Bolen  V.  People,  184  111.  338,  56  N. 
E.  408;  New  York  Life  Ins.  Co.  v. 
People,  195  111.  430,  63  N.  E.  i>64; 
South  Bend  v.  Hardy,  98  Ind.  577, 
583;   Clifton  v.  Granger,  86  la.  573, 


575,  53  N.  W.  316;  Foster  v.  People, 
18  Mich.  266,  271;  White  v.  State, 
52  Miss.  216,  225;  Fries  v.  Brugler, 
12  N.  J.  Law  79;  He  Tobias,  Green- 
thai  &  Mendelson,  225  Fed.  815; 
Southard  v.  Rexford,  6  Cow.  (N. 
Y.)  254,  259;  Cloyes  v.  Thayer,  3 
Hill  (N.  Y.)  564,  566;  Ward  v. 
People,  6  Hill  (N.  Y.)  144,  146; 
People  V.  Bodine,  1  Denio  (N.  Y.) 
281,  314;  Ingersol  v.  McWillie,  87 
Tex.  647,  30  S.  W.  869;  State  v. 
Olin,  23  Wis.  309,  319. 

17  Mason  v.  U.  S.,  244  U.  S.  362. 


§:33yaj 


SELF  INCKl.MIN  MI'iX 


172' 


rule  wliie-li  doelares  tlial  no  man  is  compellable  to  accuse  him- 
self, would  most  obviously  ])C  infringed,  by  compelling  a  "witness 
to  disclose  a  fact  of  this  description.  What  testimony  Miay  be 
possessed,  or  is  attainable,  ajrainsl  any  individual,  tbe  court  can 
never  know.  It  would  seem,  then,  that  the  court  ought  never 
to  compel  a  witness  to  give  an  answer  which  discloses  a  fact  that 
would  foiiii  a  necessain-  and  essential  part  of  a  crime  which  is 
l)unisi!al)le  l)y  the  laws.""  The  matter  is  largely  within  the 
discretion  of  the  trial  judge. ^^ 

It  has  been  held  that  a  denial,  by  a  wiiness.  that  he  had  a  cash 
book  containing  certain  entries,  did  not  debar  him  from  refusing 
to  produce  the  book  on  the  ground  that  it  would  tend  to  crimi- 
nate him.2° 

The  objection  to  the  question  nuist  be  made  by  the  witness 
himself,  not  by  a  party.^i  j,„f|  ^^jst  expressly  invoke  the  consti- 
tutional privilege.22  A  witness,  who  has  testified  without  objec- 
tion, cannot  object  to  the  subsequent  admission  of  his  testimony 
against  himself,  on  the  ground  that  he  coidd  not  have  been  com- 
pelled to  give  it.^* 

Testimony,  before  a  grand  juiy,  of  a  person  subpa-naed  to  at- 
tend before  it.  does  not  invalidate  his  indictment  by  such  grand 
jury .2*  and  a  proceeding  lo  i)unish  a  defendant,  for  the  vio- 
lation of  an  injunction,  will  not  be  quashed  because  the  petition 
shows  that  certain  of  the  facts  therein  set  forth  were  obtained 
from  testimony  given  by  defendant  as  a  witness  in  another  case, 
it  not  ajipearing  that  such  facts  may  not  be  proved  by  other 
testimony.^^ 

Statutes  were  held  to  be  constitutional  which  required  regis- 


18  Burr's  Trial,  Vol.  I,  244. 

19  Mason  v.  U.  S.,  244  U.   S.  :{62. 
20Ballniann    v.   Fagin,   200   U.   S. 

186,  50  L.  ed.  433. 

21  Southard  v.  Rcxtord,  6  Cowen 
(N.  Y.)  254,  259;  Ward  v.  People, 
6  Hill  (N.  Y.)  144,  146;  Wigniore, 
S  2270. 

22ife  Knipkerl)ooker  Steamboat 
Co.,  139  Fod.  713. 

23Burroll  v.  Montana,  194  U.  S. 
572,  48  L.  ed.  1122:   Knoell  v.  U.  S., 


('.  ('.  \.,  239  Fed.  116;  Orth  v.  U. 
S..  C.  ('.  A.,  252  Fed.  569;  V.  S.  v. 
Bryant,  245  Fed.  682.  But  see 
IVople  V.   Sharp,  107  N.  Y.  427. 

24  U.  S.  V.  Kimball,  117  Fed.  156; 
r.  S.  V.  Wetmore,  218  Fed.  227. 
See  lie  Hale,  139  Fed.  496,  aff'd  as 
Hale  V.  Henki'l,  201  IT.  S.  43;  U.  S. 
V.  Swift,  186  Fed.  1002. 

26  Hammond  Lumber  Co.  v.  Sail- 
ors'  T'nion  of  the  Pacific,  149  Fed. 
577. 


1728 


EVIDENCE 


[§  339a 


trants  under  the  selective  draft  act,^^  to  exhibit  their  registra- 
tion cards  at  the  demand  of  police  officers  ^"^  and  required  the 
operators  of  automobiles  that  cause  personal  injuries  to  stop  and 
give  their  names,  addresses,  and  car  numbers  to  the  person 
injured.^® 

An  act  was  held  to  be  unconstitutional  which  required  the 
keeper  of  a  house  of  prostitution  who  kept  an  alien  woman  there 
to  make  a  report  to  the  Commissioner  General  of  Immigration.^^ 

The  Fourth  Amendment  ordains:  "The  right  of  the  people 
to  be  secure  in  their  persons,  houses,  papers,  and  effects,  against 
unreasonable  searches  and  seizures,  shall  not  be  violated,  and 
no  warrants  shall  issue,  but  upon  probable  cause,  supported 
by  oath  of  affirmation,  and  particularly  describing  the  place  to 
be  searched,  and  the  persons  or  things  to  be  seized."  It  has  been 
held  that  this  does  not  forbid  the  seizure  of  all  the  books  of  a 
corporation  without  a  search  warrant  when  its  organization  and 
entire  business  were  part  of  a  scheme  of  fraud,^®  nor  apply  to 
Chinese  Exclusion  cases.^i  But  a  statute  which  compelled 
the  owner  of  property,  in  proceedings  for  its  forfeiture,  to  pro- 
duce upon  the  trial  his  books  and  papers  for  the  inspection  of 
the  United  States  attorney,  and  provided  that,  in  case  of  his 
refusal,  the  allegations  on  the  part  of  the  government  should  be 
taken  as  confessed,^^  was  held  to  be  unconstitutional.^^ 

It  has  been  held  that  papers,  which  have  been  unlawfully 
seized,  cannot  be  put  in  evidence  against  the  person  to  whom 
they  belong  3*  and  that  the  court  should  direct  their  return  by 
the  District  Attorney ;  ^s  but  that  this  rule  does  not  apply  where 


26  Act  of  May  18,  1917,  eh.  15, 
§  1,  40  St.  at  L.  76,  Comp.  St. 
§  2044a. 

27  IT.  S.  V.  Olson,  253  Fed.  233. 

28  People  v.  Eosenheimer,  209  N. 
Y.  115. 

29  U.  S.  V.  Lombardo,  228  Fed. 
980. 

30  U.  S.  V.  Eice,  S.  D.  N.  Y.,  Oc- 
tober, 1911. 

31  Be  Chin  Wah,  182  Fed.  256. 

32  Act  of  June  22,  1874,  §  1218, 
St.  at  L.  186. 

33  Boyd  V.   U.   S.,  116  U.   S.   616, 


29  L.  ed.  746,  svpra,  §332;  infra, 
§487. 

34  U.  S.  V.  Wong  Quong  Wong,  94 
Fed.  832;  criticised  in  N.  Y.  L.  J. 
September  22,  1899.  Contra,  opin- 
ion in  Adams  v.  New  York,  192 
IT.  S.  585,  48,  L.  ed.  575;  Firth 
Sterling  Steel  Co.  v.  Bethlehem 
Steel  Co.,  199  Fed.  353.  See  May 
V.  U.  S.,  C.  C.  A.,  199  Fed.  53. 

36  U.  S.  V.  Mills,  185  Fed.  318. 
But  see  U.  S.  v.  Eice,  S.  D.  N.  Y. 
October,  1911.  See  Wise  v.  Mills, 
220  V.  S.  549,  55  L.  ed.  579;   Wise 


§  339b]  STATUTORY    IMMUNITY  1721) 

the  search  was  not  seriouslj-  resisted ;  '^  and  the  admission  of 
such  papers  in  a  State  court  is  not  a  violation  of  the  Fourteenth 
Amendment.^''' 

§  339b.  Statutory  immunity  and  its  effect.  Tlie  Revised 
Statutes  further  provide:  "No  witness  is  privileged  to  refuse  to 
testify  to  any  fact,  or  to  produce  any  paper,  respecting  which  he 
sliall  be  examined  by  either  House  of  Congress,  or  by  any  com- 
mittee of  either  House,  upon  the  ground  that  his  testimony  to 
such  fact  or  his  production  of  such  paper  may  tend  to  disgrace 
him  or  otherwise  render  him  infamous."  ^  "No  testimony  given 
by  a  witness  before  cither  House,  or  before  any  committee  of 
either  House  of  Congress,  shall  be  used  as  evidence  in  any  crim- 
inal proceeding  against  him  in  any  court,  except  in  a  prosecu- 
tion for  perjury  committed  in  giving  such  testimony.  But  an 
official  paper  or  record  produced  by  him  is  not  within  the  said 
privilege."^ 

It  has  been  held  that  this  does  not  give  the  witness  the  com- 
plete security  from  prosecution  which  the  Constitution  guaran- 
tees.3  "  It  could  not,  and  would  not,  prevent  the  iLse  of  his  testi- 
mony to  search  out  other  testimony  to  be  used  in  evidence  against 
him  or  his  property,  in  a  criminal  proceeding  in  such  court.  It 
could  not  prevent  the  obtaining  and  the  use  of  witnesses  and  evi- 
dence which  should  be  attributable  directly  to  the  testimony  he 
might  give  under  compulsion,  and  on  which  he  might  be  con- 
victed, when  otherwise,  and  if  he  had  refused  to  answer,  he  could 
not  possibly  have  been  convicted."*  "No  statute  which  leaves 
the  party  of  witness  subject  to  prosecution  after  he  answers  the 
criminating  question  put  to  him,  can  have  the  effect  of  sup- 
planting the  privilege  conferred  by  the  Constitution  of  the 
United  States.  Section  eight  hundred  and  sixty  of  the  Revised 
Statutes  does  not  supply  a  complete  protection  from  all  the  perils 
against  which  the  constitutional  substitute  for  that  prohibition. 
In  view  of  the  constitutional  provision,  a  statutory  enactment, 

V.  Heiikel,  220  IT.  S.  556,  55  L.  ed.  §  3.S9b.     1  U.  S.  K.  S.  «  859. 

581 ;    Wise   v.   Mills,   C.   C.   A.,   189  2  U.  S.  R.  S.   §  103,  supra,  §  332. 

Fed.  58.3.  ^  Counselman  v.  Hitchcock,  142  U. 

86  Lum  Yaii  v.  U.  S.,  C.  C.  A.,  193  S.  547.     But  see  Emery  's  case,   107 

Fed.  970.  Mass.   172,  185;   Cullen   v.   Common- 

37  Adams  v.  New  York,  192  U.  S.  wealth,  24  Graton  624. 

585,  48  L.  ed.  575.  4  Brown  v.  Walker,  161  U.  S.  591. 


1730 


EVIDENCE 


[§  339b 


to  be  valid,  must  afford  absolute  immunity  against  future  prose- 
cutions for  tlie  off'enee  to  which  the  question  relates."  ^ 

The  Interstate  Commerce  law  provides:  "That  no  person  shall 
be  excused  from  attending  and  testifying  or  from  producing 
books,  papers,  tariffs,  contracts,  agreements  and  documents  be- 
fore the  Interstate  Commerce  Commission,  or  in  obedience  to 
the  subpoena  of  the  Commission,  whether  such  subpoena  be  signed 
or  issued  by  one  or  more  Commissioners,  or  in  any  cause  of  pro- 
ceeding, criminal  or  otherwise,  based  upon  or  growing  out  of  any 
alleged  violation  of  the  act  of  Congress,  entitled,  'An  act  to  regu- 
late commerce,'  approved  Februar.y  fourth,  eighteen  hundred 
and  eighty-sevcH,  or  of  any  amendment  thereof  on  the  ground  or 
for  the  reason  that  the  testimony  or  evidence,  documentary  or 
otherwise,  required  of  him,  may  tend  to  criminate  him  or  subject 
him  to  a  penalty  or  forfeiture.^  But  no  person  shall  be  prose- 
cuted or  subject  to  aiiy  penalty  or  forfeiture  for  or  on  account 
of  any  transaction,  matter  or  thing,  concerning  which  he  may 
testify,  or  produce  evidence,  documentary  or  otherwise,  before 
said  Commission,  or  in  obedience  to  its  subpoena  of  either  of 
them,  or  in  any  such  case  or  proceeding:  Provided,  Tliat  no 
person  so  testifying  shall  be  exempt  from  prosecution  and  pun- 
ishment for  perjury  committed  in  so  testifying."  '''  This  has  l)een 
held  to  be  constitutional ;  since  the  statute  protects  the  witness 
fi'om  prosecution  in  the  State  as  well  as  in  the  Federal  courts; 
and  the  possibility  that,  by  his  disclosure,  he  may  be  subjected 
to  the  criminal  laws  of  some  other  sovereignty,  is  too  remote  a 
possibility. ' ' ' 


6  Counselman  v.  Hitchcock,  142  TJ. 
S.  547,  564,  per  Blatchford.  J.  "No 
person  shall  he  subject,  except  in 
<-ases  of  inipeaehnient,  to  more  than 
one  punishment  or  one  trial  for  the 
same  offense,  nor  shall  be  compelled 
to  be  a  witness  against  himself,  nor 
be  deprived  of  life,  liberty  or  prop- 
erty without  due  process  of  law. ' ' 

6  Ibid.     142  U.  S.  547,  585. 

7  Amendment  of  February  11, 
1893,  27  St.  at  L.  443;  IT.  S.  E.  S., 
S  863,  has  been  repealed  36  St.  at 
L.,  p.  352.  See  mpra,  §  77c.  IT.  S. 
V.  Lake  Shore  &  M.  S.  Ey.  Co.,  203 


Fed.  296;   IT.   S.  v.  Elton,  222  Fed. 
428. 

8  Brown  v.  Walker,  161  U.  S.  591, 
40  L.  ed.  819;  Interstate  Commerce 
Commission  v.  Baird,  194  IT.  S.  25, 
48  L.  ed.  860.  But  see  Counselman 
V.  Hitoheoek,  142  U.  S.  547,  L.  ed. 
niO;  U.  S.  V.  James,  60  Fed.  257; 
Foot  V.  Buchanan,  113  Fed.  156;  Be 
Carter,  166  Mo.  604,  57  L.E.A.  654; 
People  ex  rel.  Hackley  v.  Kelly,  24 
N.  Y.  74;  Ex  imrte  Irvine,  74  Fed. 
954;  IT.  S.  V.  Price,  96  Fed.  960;  IT. 
S.  V.  Kimball,  117  Fed.  156.  By  the 
English  law  exposure  to  liability  to 


J;  3.'J9I)]  stati:t()kv  i.NrMiMTV  17:]1 

The  power  of  the  Commission  to  inspect  the  correspondence  of 
a  railroad  company  has  been  denied.^  This  power  of  investiga- 
tion is  not  confined  to  cases  in  which  evils  or  abuses  are  definitely 
charged  and  specific  remedies  proposed  either  by  the  Commission 
or  complaints  before  it ;  nor  it  seems  is  the  right  of  inquiry  in  a 
])articiihii'  proceeding  to  be  limited  by  the  terms  of  the  order 
instituting  the  investigation. ^° 

The  Act  of  February  39,  190:},  "to  further  regulate  commerce 
with  foreign  nations  and  among  the  States,"  provides:  "In 
))roceedings  under  this  Act  and  the  Acts  to  regulate  commerce 
the  said  coui-ts  shall  have  the  ])()wer  to  compel  the  attendance  of 
witnesses,  both  upon  the  part  of  the  carrier  and  the  shipper, 
who  shall  be  required  to  answer  on  all  subjects  relating  directly 
or  indirectly  to  the  nuitter  in  controversy,  and  to  compel  the 
production  of  all  books  and  papers,  both  of  the  carrier  and  the 
shipper,  which  relate  directly  or  indirectly  to  such  transaction; 
the  claim  that  such  tesiiniony  oi-  evidence  may  tend  to  criminate 
the  person  giving  such  evidence  shall  not  excuse  such  person 
from  testifying  or  such  cor])oration  producing  its  books  and 
l)apers,  but  no  ])erson  shall  lie  prosecuted  or  subjected  to  any 
penally  or  i'oi-feiture  for  or  on  account  of  any  transaction, 
nuitter,  or  thing  concerning  which  he  may  testify  or  produce 
evidence  documentary  or  ollierwise  in  such  proceeding."  ^^  A 
similar  .section  is  contaiiu'd  in  the  act  authorizing  suits  \uuler 
the  Interstate  Commerce  Law.^^ 

The  Act  creating  the  Kedci-a!  Trade  Connnission  contains  sim- 
ilar ])r()visi()ns  concerning  investigations.^^ 

By  the  act  of  October  2S,  1919.  to  enforce  the  Eighteenth 
Amendment  prohibiting  the  sa'e  of  intoxicating  li(|uors:  *'No 
person  shall  be  excused,  on  the  gionnd  that  it  may  teiul  to  in- 
criminate him  or  sid)ject   him   to  a   penalty  oi-  forfeiture,  from 

piiiiisliment  under  the  laws  of  a  for-  H  :!2   St.   at   L.   847,   §  ?<,  10  Fed. 

eigu    country    is    not    piotoctod    by  St.   Ann.   170,  Comp.  St.  Sup]).   590, 

the    privilege.      King    of    the    Two  Pierce  Fed.  Code,  §6453. 

Sicilies  v.  Willeox,  159  State  Trials  12  24  St.  at   L.   :^79.  supra,  §  77g. 

N.S.  Vn.*1059,  1070.  13  Act   of  Sept.  26,   1914,  ch.  .111. 

9  U.  S.  V.  Louisville  &  N.  Ry.  Co.,  S  9,  .S8  St.  at  L.  722,  Comp.  St. 
236  U.  S.  318,  336.  §8836i.;  U.  S.  v.  Armour,  142  Fed. 

10  Smith  V.  Interstate  Commerce  80S;  Santa  Fe  Pac.  R.  Co.  v.  Davi.l- 
Commission,  245  IT.  S.  33.     But  see       son,   149  Fed.  003.     Sitpni.  S  77h. 

V.  S.  V.  Skinner,  218  Fed.  87(t. 


1732  EVIDENCE  [§  339b 

attending  and  testifying,  or  producing  books,  papers,  documents, 
and  other  evidence  in  obedience  to  a  subpoena  of  any  court  in 
any  suit  or  proceeding  based  upon  or  growing  out  of  any  alleged 
violation  of  this  Act ;  but  no  natural  person  shall  be  prosecuted 
or  subjected  to  any  penalty  or  forfeiture  for  or  on  account  of 
any  transaction,  matter,  or  thing  as  to  which,  in  obedience  to 
a  subptena  and  under  oath,  he  may  so  testify  or  produce  evi- 
dence, but  no  person  shall  be  exempt  from  prosecution  and  pun- 
ishment for  perjury  committed  in  so  testifying."^* 

"Every  person  who  shall  directly  or  indirectly  keep  or  main- 
tain by  himself  or  by  associating  with  others,  or  who  shall  in  any 
manner  aid,  assist,  or  abet  in  keeping  or  maintaining  any  club 
house,  or  other  place  in  which  any  alcoholic  liquor  is  received  or 
kept  for  the  purpose  of  gift,  barter,  or  sale,  or  for  distribution 
or  division  among  the  members  of  any  club  or  association  by  any 
means  whatsoever,  or  who  shall  maintain  what  is  commonly 
knoAvn  as  the  'locker  system'  or  other  device  for  evading  the 
provisions  of  this  Act,  and  every  person  who  shall  use,  barter, 
sell,  or  assist  or  abet  in  bartering,  selling  any  liquors  so  received 
or  kept,  shall  be  deemed  guilty  of  a  misdemeanor  and  upon  con- 
viction thereof  be  subject  to  the  penalties  prescribed  in  section 
one  of  this  Act ;  and  in  all  cases  the  members,  shareholders,  asso- 
ciates or  employees  in  any  club  or  association  mentioned  in  this 
section  shall  be  competent  witnesses  to  prove  any  violations  of 
the  provisions  of  this  section  of  this  Act,  or  of  any  fact  tending 
thereto ;  and  no  person  shall  be  excused  from  testifying  as  to  any 
offense  committed  b}^  another  against  any  of  the  provisions  of 
this  Act  by  reason  of  his  testimony  tending  to  criminate  him- 
self, but  the  testimony  given  by  such  person  shall  in  no  case  be 
used  against  him."^^ 

But  the  immunity  under  all  these  statutes  has  been  thus  lim- 
ited to  a  natural  person,  who,  in  obedience  to  a  subpoena,  gives 
testimony  under  oatli  or  produces  evidence,  documentary  or 
otherwise,  under  oath.  This  does  not  give  immunity  to  persons 
because  they  have  tiled  answers,  as  pleadings,  under  oath  in  such 
proceedings,^^  or  liave  produced  documentary  evidence  as  offi- 

14  Act    of   Oct.    28,    1919,   cli.   — ,  16  U.  S.  v.  Standard  Sanitary  Mfg. 

tit.   II,   §30,   Comp.St.   §  10138yop.       Co.,  187  Fed.  229. 

16  Act  of  March  3,  1917,  ch.  165, 
§  7,  Comp.   St.    §  3369h. 


S  3401 


SUBP(EN.\S   AD  TKSTlKUANDr.M 


1738 


I'crs  ()i-  ciuplovffs  of  I'oiporjit  ioiis.i"''  iiK-liKlinji:  sclicdulcs  and  al)- 
straets  i)rei)arecl  from  the  books  hy  other  emi)U)yees  of  the  eoiu- 
pany ;  "  nor  does  it  apply  to  fiitnre  offenses.^®  It  has  been  held 
that  in  order  to  obtain  the  imninnity.  Ihe  witness  should  claim 
it  before  the  Commission. ^'^ 

It  has  been  said  that  iniiiuniily  from  prosecution  under  the 
Federal  statutes  is  sutiftcient,  alth(»\i^di  innuunity  nndei-  the  rlif- 
ferent  statutes  of  the  differe)it  States  is  not  friven.^i 

It  was  formerly  held  that  immunity  was  given  to  a  witness 
who  testitied  voluntarily,  without  the  compidsion  of  a  subpa'ua.^^ 
The  statutes  do  not  prevent  an  indictment  for  perjury  because 
of  false  testimony  in  such  a  ])roceeding.'^3  'f  hey  a\ithorize  com- 
l)ulsory  testimony  coneeniiuf,^  a  crime  for  which  the  witness  has 
been  already  indicted,  although  it  is  a  defense  to  such  an 
indictment.^* 

§340.  Subpoenas  ad  testificandum.  The  attendance  of  a  wit- 
ness is  usually  compelled  at  law  and  in  equity  as  by  the  service 


17  Heike  v.  U.  S.,  217  U.  S.  42:',, 
30  Sup.  Ct.  439,  54  L.  ed.  821 ;  s.  c, 
227  U.  S.  131;  affirming  C.  C.  A., 
192  Fed.  83;  affirming  U.  S.  v. 
Heike,  175  Fed.  852. 

18  11, id. 

19  U.   S.   V.   Swift,    18(i  Fed.   1ii(i2. 

20  U.  S.  V.  Heike,  175  Fed.  852; 
U.  S.  V.  Skinner,  218  Fed.  870,  879, 
880,  per  Grubb,  J.:  "The  purpose 
of  the  assertion  i.s  only  to  apprise 
the  examining  tribunal  that  the  an- 
swer, if  given,  will  be  compulsory, 
and  immunity  will  flow  to  the  wit- 
ness therefrom.  It  need  not  be  a 
formal  assertion.  It  is  enough  if 
it  apjn-ise  the  examining  tribunal, 
and  the  law  officer  of  the  govern- 
ment conducting  tlie  investigation, 
that  the  witness  is  unwilling  to  an- 
swer because  the  answer  may  in- 
criminate him,  and  enough  of  the 
manner  in  which  tliis  may  be  done 
to  enable  them  to  determine  intelli- 
gently whether  tliere  is  a  likelihood 

Fed.  Prac.  Vol.  II— ;!9 


of  such  incrimination.  It  may  even 
be  assumed  in  the  absence  of  ex- 
press assertion,  in  some  cases  from 
the  nature  of  the  questions  asked 
and  the  manner  in  which  they  are 
answered.  The  circumstances,  how- 
ever, nuist  be  such  as  to  show  that 
the  tribunal  was  clearly  informed  of 
the  claim  of  the  witness  and  its 
basis."  Contra,  U.  S.  v.  Armour, 
142  Fed.  808;  People  of  N.  Y.  v. 
Scharp,  107  X.  Y.  427,  14  N.  E. 
319,  1  A.  M.  atate  851;  State  v. 
Murphy,  128  Wis.  201,  107  N.  W. 
■170. 

21  lirown  v.  Walker,  Kil  V.  S.  .-)91, 
()(l«i,  (iOS. 

22  r.  S.  v.  Armour  &  Co.,  142  F.<1. 
808.  See  Hammond  Lumber  Co.  v. 
Sailors'  Union  of  the  Pacific,  167 
Fe.l.  809. 

23Cilickstein  v.  V.  S.,  222  F.  S. 
139,  56  L.  ed.  128;  Cameron  v.  U. 
s.,  C.  C.  A.,  192  Fed.  548. 

24  /iV  Kittle.  180  Fed.  946. 


1734 


EVIDENCE 


[§340 


of  a  subpcena  ad  testificandum,  and  the  payment  of  his  fees  and 

mileage.^ 

A  subpoena  ad  testificandum  is  substantially  in  the  same  form 
in  equity  as  in  law.  When  issued  from  a  court  of  the  United 
States,  it  must  be  under  the  seal  of  the  court,  and  signed  by  the 
clerk;  and  is  usually  also  signed  by  the. solicitors  of  the  party  at 
whose  request  it  issues.  Those  issued  from  the  Supreme  court 
must  bear  teste  from  the  day  of  such  issue  of  the  Chief  Justice 
of  the  United  States,  or,  when  that  office  is  vacant,  of  the  asso- 
ciate justice  next  in  precedence.^  Those  issuijig  from  a  District 
court  must  bear  teste  of  the  .judge,  or,  when  that  office  is  vacant, 
of  the  clerk  thereof.^  A  subpoena  must  show  the  action  or  pro- 
ceeding in  which  the  testimony  of  the  witness  is  required.* 

By  the  common  law,  the  names  of  but  four  witnesses  could  be 
included  in  one  subpoena. ^  The  Revised  Statutes,  however,  pro- 
vide that,  ' '  to  save  unnecessary  expense,  it  shall  be  the  duty  of 
the  clerk  to  insert  the  names  of  as  many  witnesses  in  a  case  in 
such    a    subpoena    as    convenience    in    serving    the    same    will 

permit. ' '  ® 

The  Equity  Rules  of  1912,  provide  that  the  subpcena,  in  the 
usual  form,  may  be  issued  by  the  clerk  in  blank  and  filed  up  by 
the  party  drawing  the  same  or  issued  by  the  commissioner, 
master  or  examiner,  requiring  the  attendance  of  the  witnesses  at 
the  time  and  place  specified."''  In  actions  at  common  law,  it  would 
seem  that  the  common-law  practice  must  prevail.  According 
thereto,  if  the  witness  can  be  served  within  the  jurisdiction  of 
the  court  where  the  suit  is  pending,  or  within  a  hundred  miles 
of  the  place  of  holding  that  court,  the  subpoena  may  ])e  issued 
from  its  clerk's  office.^    If  he  cannot,  and  it  is  desired  to  take 


§  340.  1  For  the  amount  of  his 
fees   and   mileage,    see    §  333. 

2U.  S.  E.  S.,  §§911,  912. 

8U.  S.  K.  S.,  §§911,  912. 

4^e  Shaw,  172  Fed.  .520,  holding 
that  a  subpoena  to  testify  before  a 
grand  jury  must  disclose  the  names 
of  the  persons  against  whom  the  in- 
quiry is  instituted  or  the  subject  of 
the  investigation. 

5  Erwin  v.  U.  S.,  37  Fed.  470,  490. 

6U.  S.  B.  S.,   §  829;   Erwin  v.  U. 


S.t  37  Fed.  470,  490;  i?e  Shaw,  172 
Fed.   520. 

7Eq.  Rule  52. 

8  U.  S.  R.  S.,  §  876.  Under  the 
former  practice  it  was  held,  that  a 
person  who  did  not  reside  within 
the  district  where  he  was  served 
with  a  subpoena  could  not  be  com- 
pelled to  attend  before  an  examiner 
in  a  suit  in  equity,  unless  the  pro- 
ceedings were  instituted  for  taking 
his    deposition   de    bene   esse   vx  ac- 


§340] 


SUBPtENAS  AD  TESTIFICANDUM 


1735 


his  testimony  in  a  civil  cause'  de  bene  esne  under  the  Revised 
Statutes,  application  for  the  issue  of  the  subpoena  must  be  made 
to  the  court  of  the  district  where  the  examination  is  to  be  made, 
or  to  the  clerk  of  such  court.^" 

It  has  been  held  that,  where  the  State  laws  authorize  a  com- 
mitting magistrate  to  issue  subpoenas,  the  same  power  is  vested 
in  a  I'nited  States  commissioner;  and  that  a  subpa'na  signed 
and  sealed  by  him,  and  countersigned  by  an  attorney  for  a  party, 
is  valid  process,  although  not  issued  nor  countersigned  l)y  a 
judge  or  clerk  of  a  United  States  con  it. ^^  General  court-martials 
of  the  United  States  army  are  authorized  by  statute  to  issue 
su])p(enas  to  witnesses,  within  the  judicial  districts  where  they 
ai'e  held.^^ 

It  has  been  held  that  Congress  has  no  power  to  authorize  or 
compel  the  courts  of  the  Ignited  States  to  issue  subpoenas  or 
punish  for  contempt  witnesses  before  a  Congressional  Commis- 
sion, such  as  the  Pacific  Railway  Commission,^^  or  the  Interstate 
Commerce  Commission,^*  or  an  executive  officer.^^  Special 
statutes  have  been  passed  providing  for  the  punishment  of  recal- 
citrant witnesses  in  such  cases  under  the  criminal  laws.^^ 

"Witnesses  who  are  required  to  attend  any  term  of  a  District 
court  on  the  part  of  the  United  States,  shall  be  subpoenaed  to 
attend  to  testify  generally  on  their  behalf,  and  not  to  depart  the 
court  without  leave  thereof,  or  of  the  district  attorney ;  and 
under  such  process  they  shall  appear  before  the  grand  or  petit 
jury,  or  both,  as  they  may  be  required  by  the  court  or  district 
attorney."  ^"^ 


cordance  with  the  Revised  Statutes. 
Tonilinson  v.  Moore,  189  Fed.  845. 
And  that  a  witness  who  lives  out- 
side the  district  cannot  be  compelled 
to  attend  before  a  United  States 
Commissioner  who  sits  within  one 
hundred  miles  of  liis  residence.  U. 
S.  V.  Stern,  177  Fed.  479.  As  to 
naturalization  cases,  see  IT.  S.  v. 
Ojala,  C.  C.  A.,  182  Fed.  51. 

9  See  infra,  §§354,  355. 

10  TT.  S.  R.  S.,  §863;  U.  S.  v.  Til- 
den,  25  Tnt.  Rev.  R.  352;  Ex  parte 
Humphrey,  2  Blatelif.  228;  Henry 
V.    Rieketts,    1    Cranch,    C.    C.    580; 


Ex  parte  Peck,  3  Blatchf.  113.     See 
infra.  §  342. 

11  U.  S.  V.  Beavers,  125  Fed.  778. 
See  TT.  S.  R.  S.,  §  1014. 

12  31  St.  at  L.  950. 

13  Be  Pac.  Ry.  Com.,  32  Fed.  241. 

14  Be  Interstate  Commerce  Com- 
mission, 53  Fed.  476. 

16  Be  McLean,  37  Fed.  648.  Cf. 
V.  S.  R.  S..  §  4906;  Ex  parte  Moses, 
53    Fed.    316. 

16, Supra.  §  5;  infra,  §  343. 

17  XT.  S.  R.  S.,  §  877.  It  has  been 
said  that  extreme  poverty  is  an  ex- 
cuse  for   the  failure   of  the   witness 


1736 


EVIDENCE 


[§341 


§341.  Subpoenas  duces  tecum.  A  subpoena  duces  tecum  is 
the  ordinary  process  to  compel  the  production  of  a  book,  docu- 
ment or  paper.^  A  subpa^na  duces  tecum  may  be  issued  against 
a  party  to  the  action.^  It  may  be  issued  against  a  corporation.^ 
It  is  not  defective  because  it  contains  no  ad  testificandum  clause 
or  direction  that  the  witness  testify.* 

It  is  not  necessary  to  have  the  person  producing  the  papers 
sworn  as  a  witness.  After  their  production  by  him,  they  may  be 
proved  by  others.^ 

The  production  of  drawings  may  be  thus  compelled.^  The 
production  of  other  articles,  such  as  patterns,"^  or  models  cannot.^ 
It  has  been  held:  that  an  attorney  cannot  be  compelled,  by  a 
subpoena  duces  tecum,  to  produce  a  docmnent,  upon  which  he 
has  a  lien.9    Tliat  the  inspection  of  a  mine  may  be  allowed  and 


to  attend  when  the  Government  has 
not  furnished  him  money  for  his 
traveling  expenses.  IT.  S.  v.  Bur- 
ling, 4  Biss.  .509.  See  Greenleaf  on 
Evidence,  (16th  ed.)   §311. 

§^41.     1  .Johnson   Steel   S.   R.   Co. 
v.   N.  B.   S.   Co..  48  Fed.   191;    Dia- 
mond    Match     Co.     V.     Oshkosh    M. 
Works,    6."^    Fed.    984.      An    indorse- 
ment  by   the   marshal   upon   such   a 
subpfpna    stating   that   he   is   unable 
to   find   the    witness   therein   named, 
does  not  show  that  the  subpoena  was 
returned  upon  the  date  mentioned  in 
the  indorsement,  nor  that  it  has  be- 
come  functa   offic-w.     Heinze   v.    U. 
S.,   C.   C.   A.,  181   Fed.   .322.     When 
the    production    of    books    before    a 
grand  jury  is  thus   directed,  "Obe- 
dience to  the  subpoena  will  be  com- 
plete when  the  books  called  for  are 
presented   to  the   grand   jury   in   an 
actual   session,   and   are   taken  away 
again  by  the  messenger  of  the  cor- 
poration  as   soon   as   the   particular 
session  adjourns;  "  while  the  session 
lasts    they    must    remain    with    the 
grand  jury,     ^e  Am.  Sugar  Refining 
Co.,  178  Fed.   109,  111. 


2  Am.  Lithographic  Co.  v.  Werck- 
meister,    221    U.    S.    603,    55    L.    cd. 

87:'.. 

3  Be  Am.  Sugar  Refining  Co.,  178 
Fed.  109;  i?e  Bornn  Hat  Co.,  184 
Fed.  506.     See  S  339,  swpra. 

4  Wilson  V.  IT.  S.,  221  U.  S.  361, 
55  L.  ed.  771;  Wheeler  v.  U.  S., 
226  U.  S.  478,  57  L.  ed.  — .  See 
§  339,   supra. 

6  Wilson  v.  U.  S.,  221  U.  S.  361, 
372,  55  L.  cd.  771,  776. 

6, Johnson  Steel  S.  R.  Co.  v.  N. 
B.  S.  Co.,  48  Fed.  191;  Diamond 
Match  Co.  v.  Oshkosh  M.  Works,  63 
Fed.  984. 

7  Be  Shephard,  3  Fed.  12.  It  has 
l>een  held  that,  in  an  action  for- the 
infringement  of  a  patent,  the  court 
may  impound  articles  that  are  made 
in  violation  of  the  patent  which  are 
found  in  the  defendant 's  possession 
or  under  his  control.  Fe  Steiner, 
195  Fed.   299. 

S.Iohnson  Steel  S.  R.  Co.  v.  N. 
B.  S.  Co.,  48  Fed.  191;  Diamond 
Match  Co.  V.  Oshkosh  M.  Works,  63 
Fed.  984. 

9  Davis  V.  Davis,  90  Fed.  791. 


§  341  ] 


SUBPCEXAS   DUCES   TECUM 


1737 


eoiiipelled,  in  a  proceeding  to  remove  a  receiver.^"  That  a  ."State 
statute  empowering  tlie  courts  to  eoiiipol  the  iuspection  and  sur- 
vey of  a  mine  is  constitutional:  ^^  and  that  a  court  of  equity  has 
power,  in  aid  of  the  defense  of  an  action  at  law  upon  a  life  insur- 
ance policy,  to  order  the  hody  of  the  insured  to  be  exhumed  for 
examination.^^ 

Undei'  the  foi-mer  practice  it  was  held.  Iliat  an  order  rc(|uiiiiig 
the  defendant  in  a  suit  for  the  infi'ingement  of  a  patent  to  permit 
the  comi)laiiiaiU   1o  inspect  his  maciiines  should  not,  except  in 

extraordiiiaiy  eases,  be  granted  upon  affidavits  before  taking 
testiiiio)iy.i3 

L'nder  the  foiiner  i)ractice.  it  was  held  tliat  a  subptena  duces 
tecum  could  only  be  obtained  by  application  to  the  court. ^*  But 
it  has  been  he'd  that  in  criminal  proceedings  it  may  be  issued 
by  the  clerk  in  an  ordinary  sul)p(cna  ^^  and  there  seems  to  be 
no  I'cason  why  the  clcrlv  shonid  not  issue  it  as  of  course  in 
civil  proceedings  a'sf>.^^  Such  an  ap|)lication  shovdd  be  by 
petition  setting  forth  facts,  which  tend  to  show  that  the  books 
or  papers  required  are  in  the  possession  of  the  witness,  and  that 
they  are  lyr'una  fuck,  material  or  relevant  to  the  petitioner's 
case.^'  It  is  insufficient  merely  to  allege  that  the  books  or  papers 
required  are  material  or  relevant  to  the  issues;  l)ut  the  fads, 
which  enable  liie  court  to  determine  whether  they  are  prima 
facie,  material  or  relevant,  have  to  be  set  forth."     Allegations 


10  Hcnszoy  v.  Laiigiloii  Hcnszcy 
Coal  Mill.  Co.,  80  Fed.  778. 

11  Montana  Co.  v.  St.  Louis  Min. 
&  Mfg.  Co.,  152  U.  S.  160,  38  L.  ed. 
.198. 

12  Mutwal  Life  Ins.  Co.  v.  CJriesa, 
156  Fed.  398. 

13  Eihel  Proi'oss  Co.  v.  Ri-niinj,'- 
ton-Martin  Co.,  1!)7  Fed.  760. 

14  1'.  S.  V.  Hunter,  15  Fed.  712; 
Hisi'liofl'shciin  v.  Brown,  29  Fed. 
;!41;  Daniel  v.  (Joodyear  Shoe  Ma 
ehinery  Co.,  128  Fed.  753,  in  which 
the  author  was  counsel ;  I^.  S.  v.  Ter- 
minal R.  Ass'n,  154  Fed.  268.  In 
the  Second  Circuit  it  has  been  held: 
that  the  same  rule  ai)plies  when  the 
testinionv  is  to  he  taken  for   use   in 


another  district  (Vaeuiun  Cleaner 
Co.  V.  Piatt,  C.  C.  A.,  196  Fed.  398)  ; 
that  it  is  a  proper  exercise  of  ilis- 
cretion  for  the  court  to  refuse  thus 
to  compel  the  production  of  a  doiu 
ment  which  is  not  shown  to  have  any 
possible  relevancy  to  the  issue 
(Il)id.);  and  that  the  remedy  for 
refusing  to  issue  such  a  suhpoen.T 
is  not  Ipy  the  writ  of  mandamus,  but 
by   a])iieal.      (Ibid.) 

15  Re  Subpu'nas  Duces  Tecum,  248 
Fed.  137. 

16  Ibid. 

17  r.  S.  V.  Hunter,  15  Fed.  712; 
Dancel  v.  Goodyear  Shoe  Machinery 
Co.,  128  Fed.  75.3. 

18  Daiii-el    v.    (kuidvcar    bhoe    Ma- 


1738 


EVIDENCE 


[§341 


solely  upon  information  and  belief,  without  stating  the  sources 
of  the  information  and  the  grounds  of  the  belief  concerning  the 
contents  of  the  documents  desired,  were  ordinarily  insufficient.^® 
AVhen  a  large  number  of  books  and  papers  are  required,  it  is 
the  safer  practice  for  the  applicant  to  apply  for  separate  sub- 
poenas duces  tecuni.^^ 

Whether  the  new  Equity  Rules  authorizing  subpoenas  to  be 
issued  by  the  clerk,  commissioner,  master  or  examiner,  applies  to 
subpoenas  duces  tecum,^^  has  not  yet  been  decided.  It  has  been 
said  that  when  the  testimony  is  to  be  taken  under  a  dedimus 
potestatem  an  order  of  the  judge  is  required. ^^ 

In  criminal  cases  a  subpoena  duces  tecum  may  be  served  outside 
of  the  district  where  it  is  issued  and  in  any  part  of  the  United 
States.23 

A  subpoena  duces  tecum  must  be  reasonable  in  its  terms.  If 
too  broad,  it  may  constitute  an  unreasonable  searcli  and  seizure, 
such  as  is  forbidden  bv  the  Fourth  Amendment.^*     In  a  case 


ehinery  Co.,  128  Fed.  753;  U.  S.  v. 
Terminal  R.  Ass'n,  154  Fed.  268. 
Contra,  U.  S.  v.  Terminal  E.  Ass'n, 
148  Fed.  486;  U.  S.  v.  Babcoek,  3 
Dillon,  566,  Fed.  Cas.  No.  14,484. 

19  West  Pub.  Co.  v.  Edward 
Thompson  Co.,  151  Fed.  138. 

20  Miller  v.  Mutual  Reserve  Fund 
Life  Ann's,   139  Fed.   864. 

21  Eq.  Rule  52. 

22  Be  Subpoenas  Duces  Tecum,  248 
Fed.  137. 

23  Ibid. 

24  Hale  v.  Henkel,  201  U.  S.  43, 
76,  77,  50  L.  ed.  652,  666,  667.  See 
Hoppe  V.  N.  B.  Ostrander  Co.,  183 
Fed.  786.  A  subpcena  is  too  broad, 
which  requires  the  production  of  all 
understandings,  contracts,  or  cor- 
respondence between  one  corpora- 
tion and  six  other  companies,  to- 
gether with  all  reports  made  and 
accounts  rendered  by  such  compa- 
nies to  the  former  corporation,  from 
the  date  of  its  organization,  when 
the  companies  are  situated  in  sev- 
eral  States  of   the  Union.     Hale   v. 


Henkel,  201  U.  S.  43,  76,  77,  50  L. 
ed.  652,  666,  667.  It  has  been  held 
that  a  corporation  may  be  required 
to  produce  all  its  minute  books 
' '  from  the  time  of  its  incorporation 
to  the  present  day,"  a  period  of 
about  three  years,  and  its  copy  let- 
ter books,  for  a  period  of  less  than 
four  months.  IT.  S.  v.  American 
Tobacco  Co.,  146  Fed.  557.  A  sub- 
pcena  commanding  an  employee  of  a 
telegraph  company  to  produce  all 
messages  between  certain  persons, 
within  a  reasonably  short  time,  is 
not  too  broad.  U.  S.  v.  Hunter,  15 
Fed.  712;  U.  S.  v.  Babeock,  3  Dil- 
lon 566,  Fed.  Cas.  No.  14,484.  Be 
Stororr,  63  Fed.  564;  where  the 
period  appears  to  have  been  less 
than  a  month.  Contra,  Ex  parte 
Jaynes,  70  Cal.  638,  12  Pae.  117. 
A  subpoena  directing  an  officer  of  a 
railway  company  to  bring  with  him 
' '  certain  tissue  impression  copy 
books,  containing  copies  of  vouchers 
made  by  you  or  by  the  office  in 
which  you  are  employed  during  the 


§341]  SUBPCENAS   DL'CES   TFXTM  1739 

where  a  blanket  subpoena  of  tliat  eharaeter  was  obtained,  the 
court  refused  to  puuish  tlu'  witness  i'or  eontempt  in  disobe- 
dience tliereto.25  li  has  been  held  that  the  attendance  of  an 
officer  of  a  corporation  cannot  be  compelk'd  by  the  service, 
upon  anotlicr  officer,  of  a  subpcena  or  order  addressed  to  the 
company ;  '^^  and  that  where  tlie  secretary  proves  that  certain  of 
its  books  have  never  been  in  his  possession  or  control,  and  that 
he  cannot  obtain  them,  except  surreptitiously  or  by  a  breach  of 
the  peace,  he  cannot  be  punished  for  contempt  in  failing  to  pro-, 
duce  them  in  obedience  to  a  subpcena  duces  tecum  served  upon 
him,  the  proper  practice  being  to  address  the  writ  to  the  corpo- 
ration and  make  due  service  upon  it.^'  Under  ordinary  circum- 
stances, a  member  of  a  firm  may  be  compelled  to  produce  its 
books,  although  they  are  not  in  his  custody .28  It  has  been  held 
that  a  member  of  a  firm  cainiot  be  punished  for  contempt  for 
failure  to  produce  papers  of  tlic  firm  in  possession  of  his  partners 
in  a  foreign  country.^^ 

Where  an  assistant  United  States  attorney  had  obtained  by 
service  of  a  subpoena  duces  tecum  from  a  Federal  court,  directed 
to  a  county  judge,  the  production  of  the  records  of  the  county 
court ;  it  was  held  that  the  county  court  had  no  power  to  punish 
him  for  contempt  in  refusing  to  return  those  records  which  had 
been  given  to  the  Federal  grand  jury,  and  that  he  might  be 
discharged  by  habeas  corpus,  from  a  commitment  for  such  an 
alleged  contempt.^"  When  a  party  needs  to  use,  in  a  State  court, 
papers  on  file  in  the  clerk's  office  of  a  court  of  the  United  States, 
the  safer  practice  is  to  apply  to  the  Federal  court  for  permission 
to  serve  a  subpoena  duces  tecum  upon  its  clerk.^^ 

years  1904,   1905,  and  until  August  25  Miller  v.   Mutual   Reserve  Fund 

1st,  1906,  in  payment  of  each,  every  Life  Ass'n,  139  Fed.  864. 

and    all    of    the    claims    made   upon  26  Central    Grain    &    Stock    Exch. 

and    against    said   railway    company  v.    Board    of    Trade,    C.    C.    A.,    12.1 

for  refund   of   any  ever  paid,"   to-  Fed.  463,   468. 

gether  with  all  letters,  papers,  mem-  27  U.  S.  v.  Am.  Tobacco  Co.,   146 

oranda    and    documents    relating    to  Fed.  557. 

cei-tain     claims    specified     by     their  28  IT.  S.  v.  Collins,  145  Fed.  7(i9. 

numbers,     and     all     correspondence  29  Munroe  v.  U.  S.,  C.  C.  A.,  216 

and   memoranda    relating   to    a   eer-  Fed.  107,  reversing  Be  Munroe,  210 

tain  claim   specified  by  its  number;  Fed.    326;    see    Harvard    Law    Rev. 

was  held  to  be  not  too  broad.     San-  XXVTI,  p.   770. 

ta  Fe  Pac.  R.  Co.  v.  Davidson,  149  30  AV  Leaken,  137  Fed.  680. 

Fed.    603.  81  Harkrader    v.    Wadlcy,    172    U. 


1740  EVIDENCE  [§  342 

§  342.  Service  of  a  subpcena  ad  testificandum.  A  subpoena 
to  appear  and  testify  may  be  served  by  the  marshal  of  the  court, 
or  by  any  other  person  acting  as  the  agent  of  the  party  calling 
the  witness.^  Subpoenas  on  liehalf  of  the  United  States  in  a 
criminal  prosecution  may  be  served  in  any  part  of  the  United 
States.^  Tn  the  Southern  District  of  New  York  subpoenas  issued 
by  a  United  States  commissioner,  on  behalf  of  a  defendant,  can- 
not be  served  outside  of  the  county  where  he  holds  the  hearing ; 
unless  a  United  States  judge,  upon  an  affidavit  of  the  prosecutor 
or  district  attorney  or  of  the  defendant  or  of  his  counsel,  stating 
that  he  believes  that  the  evidence  of  the  witness  is  material  and 
his  attendance  at  the  trial  of  examination  necessary,  endorses  on 
the  subpoena  an  order  for  the  attendance  of  the  witness.^ 

The  Revised  Statutes  provide  that  "subpoenas  for  witnesses 
who  are  required  to  attend  a  court  of  the  United  States,  in  any 
district,  may  run  into  any  other  district;  provided,  that  in  civil 
causes  the  witnesses  living  out  of  the  district  in  which  the  court 
is  held  do  not  live  at  a  greater  distance  than  one  hundred  miles 
from  the  place  of  holding  the  same."  *  The  attendance  of  a  wit- 
ness in  a  civil  cause,  at  a  court  more  than  one  hundred  miles 
from  the  place  where  he  lives  cannot  be  compelled  by  the  sei-vice 
of  a  subpoena  upon  him  within  the  district,  when  he  has  been 
enticed  there  by  false  pretenses ;  ^  or  while  there  to  attend  either 
as  a  party,  a  witness,  an  attorney,  or  a  counsel  during  a  suit  or 
other  judicial  proceeding  in  a  State  ^  or  Federal  court ; '^  or, 
while  traveling  upon  his  way  to  or  from  Congress,  if  he  is  a 
member  thereof;^  or  if  there  in  the  course  of  the  performance 
of  any  public  duty.^    A  variance  between  the  original  subpcena 

S.   148,  153,  43  L.  cd.  399,  400;    s.  5  Union    R.   R.    Co.   v.   Mathiesson, 

c.    as   Wadley    v.    Blount,    65    Fed.  2  Cliff.  304;  Steigor  v.  Bonn,  4  Fed. 

067.                   '  17. 

§  342.     1  Rchwabacker     v.     Reilly,  6  Juneau    Bank    v.    M  'Spedan,    5 

2  Dill.   127;    Cumniings  v.  Akron  C.  Biss.  64;    Matthews  v.  Tufts,  87  N. 

&  P.   Co.,   6  Blatchf.  509;    Miller  v..  Y.   568.     But   see   Blight   v.   Fisher, 

Rcott,  6  Phila,  484;    Power  v.   Sem-  Pet.   C.   C.   41. 

nies,  1  Cranch,  C.  C.  247.  7    Parker  v.  Hotchkiss,  1  Wall  Jr. 

2  IT.  S.   R.  S.,   §876.  269;    Matthews  v.   Tufts,   87   N.   Y. 

sir.  S.  V.  Beavers,  125  Fed.   778.  568.     Cniitra,  Blight  v.  Fisher,  Pet. 

41^    S.    R.    S.,    §876;    Ex    parte  C.  C.  41. 

Beehee,   2   Wall.   Jr.   127;    Henry  v.  8  Const,    art.     T,     §6;     Miner    v. 

Ricketts,    1    Cranch,    C.    C.   580;    TJ.  Markliam,  28  Fed.  387. 

S.  V.  Williams.  4  Cranch,  C.  C.  372.  9  See   §  98. 


§  ;J42J  SERVICE  OF  SUBPCENA   AD  TKSTIFK  ANDTM  1741 

aiul  the  copy  served,  as  regards  the  hour  of  the  time  of  appear- 
ance, does  not  make  the  service  void,  when  the  witness  does  not 
appear  at  eitlier  tinie.^"^  A  witness  who  accci^ts  without  protest 
insufficient  fees,  cainiot  object  to  tiic  sufficiene\-  of  the  service 
upon  tliat  ground. ^^     • 

"W'lieii    a    coiiiinissioii    l)as  been   issu<'d   by   any   court   of   tlie 
I'nited    Stales    for    taking   the    testimony    of    a    witni^s    named 
llierein  at  any  |)laee  within  any  district  or  Territory,  liie  eb-rk  of 
any  court    of  the   Tnitcd  States  for  such  district   or  Territory 
shall,  on  tlie  ai)i)lication  of  either  party  to  the  suit,  or  of  his 
agent,   issue  a  subpana  for  such   witness,  commanding   iiim   to 
appear  and  testify  before  the  eomniissioner  iiamed  in  the  commis- 
sion, at  any  time  and  place  stated  in  the  snbptena :  and  if  any 
witness,    after    being    duly    served    with    subpcena,    refuses    or 
neglects  to  appear,  or,  after  appearing,   refuses  to  testify,  not 
being   privileged   from   giving  testimony,    and    such    refusal   or 
neglect  is  proven  to  the  satisfaction  of  any  judge  of  the  court 
wiiose  clerk   issues  such  subpuMia,  such  judge   may   proceed  to 
enforce  obedience  to  the  process,  or  punish  the  disobedience,  as 
any  court  of  the  United  States  may  i)roceed  in  case  of  diso])edi- 
ence  to  process  of  subptena  to  testify  issued  by  such   court. ^^ 
"When  either  i)arty  in  such  suit  applies  to  any  judge  of  a  United 
States  court  in  such  district  or  Territory  for  a  subpoena  com- 
manding the  witness,  therein  to  be  named,  to  appear  and  testify 
Ijefore  said  counnissioner,  at  the  time  and  place  to  be  stated  in 
the  subpoena,  and  to  bring  witli  him  and  produce  to  such  com- 
missioner any  paper  or  writing  or  written  instrument  or  book 
or  other  document  supposed  to  be  in  the  possession  or  power  of 
such  witness,  and  to  be  described  in  the  subpwna,  such  judge,  on 
being  satisfied,  by  the  affidavit  of  the  person  applying,  or  other- 
wise, that   there  is  reason   to  believe  that  such  paper,   writing, 
written  instrument,  book  or  other  document  is  in  the  possession 
or  power  of  the  witness,  and  that  the  same,  if  produced,  woidd 
be    competent    and    material    evidence    for   the   party    api)lying 
therefor,  nuiy  order  the  clerk  of  said  court  to  issue  such  sub- 
puna  accordingly.     And  if  the  witness,  after  being  served  with 

10  Leber   v.   U.    S.,   C.   C.    A.,    tTO  12  1'.   s.   K.   S.,   §868. 

Fed.   881. 

llLel>er   v.   U.   S.,   C.   C.   A.,   170 
Fed.  881. 


1742 


EVIDENCE 


[§342 


such  subpoena,  fails  to  produce  to  the  commissioner  at  the  time 
and  place  stated  in  the  subpoena,  any  such  paper,  writing,  written 
instrument,  book,  or  other  document,  being  in  his  possession  or 
power,  and  described  in  the  subpoena,  and  such  failure  is  proved 
to  the  satisfaction  of  said  judge,  he  may  proceed  to  enforce 
obedience  to  said  process  of  subpoena,  or  punish  the  disobedience, 
in  like  manner  as  any  court  of  the  United  States  may  proceed 
in  case  of  disobedience  to  like  process  issued  by  such  court.  When 
any  such  paper,  writing,  written  instrument,  book,  or  other  docu- 
ment is  produced  to  such  commissioner,  he  shall,  at  the  cost  of 
the  party  requiring  the  same,  cause  to  be  made  a  correct  copy 
thereof,  or  of  so  much  thereof  as  shall  be  required  by  either  of 
the  parties. "  ^^  "No  witness  shall  be  required,  under  the  provi- 
sions of  either  of  the  two  preceding  sections,  to  attend  at  any 
place  out  of  the  county  where  he  resides,  nor  more  than  forty 
miles  from  the  place  of  his  residence,  to  give  his  deposition ;  nor 
shall  any  witness  be  deemed  guilty  of  contempt  for  disobeying 
an}^  subpoena  directed  to  him  by  virtue  of  either  of  the  said 
sections,  unless  his  fee  for  going  to,  returning  from,  and  one 
day's  attendance  at  the  place  of  examination  are  paid  or  ten- 
dered to  him  at  the  time  of  the  service  of  the  subpoena."  i*    The 


13  u.  S.  E.  S.,  §  869. 

14  U.  S.  K.  S.,  §  870.  See  infra, 
§  419.  U.  S.  E.  S.,  §  871.  "When  a 
commission  to  take  the  testimony  of 
any  witness  found  within  the  Dis- 
trict of  Columbia,  to  be  used  in  a 
suit  depending  in  any  State  or  Ter- 
ritorial or  foreign  court,  is  issued 
from  such  court,  or  a  notice  to  the 
same  effect  is  given  according  to  its 
rules  of  practice,  and  such  com- 
mission or  notice  is  produced  to  a 
justice  of  the  Supreme  Court  of 
said  District,  and  due  proof  is  made 
to  him  that  the  testimony  of  such 
witness  is  material  to  the  party  de- 
siring the  same,  the  said  justice  shall 
issue  a  summons  to  the  witness,  re- 
quiring him  to  appear  before  the 
commissioners  named  in  the  com- 
mission or  notice,  to  testify  in  such 
suit,  at  a  time  and  at  a  place  within 


said  District  therein  specified. ' '  U. 
S.  E.  S.,  S  872.  ' '  When  it  satis- 
factorily appears  by  affidavit  to  any 
justice  of  the  Supreme  Court  of  the 
District  of  Columbia,  or  to  any  com- 
missioner for  taking  depositions  ap- 
pointed hy  said  court:  first,  that  any 
person  within  said  District  is  a  ma- 
terial witness  for  either  party  in  a 
suit  pending  in  any  State  or  Ter- 
ritorial or  foreign  court;  second, 
that  no  commission  nor  notice  to 
take  the  testimony  of  such  wit- 
ness has  been  issued  or  given;  and, 
third,  that,  according  to  the  prac- 
tice of  the  court  in  which  the  suit 
is  pending,  the  deposition  of  a  wit- 
ness taken  without  the  presence  and 
consent  of  both  parties  will  be  re- 
ceived on  the  trial  or  hearing  there- 
of,— such  officer  shall  issue  his  sum- 
mons,    requiring      the     witness     to 


§  343]  COMl'KlJJN<i    WITNESS  TO  TESTIFY  17-13 

fee  of  the  witness  is  one  dollar  and  fifty  cents  a  day,  and  mileage 
at  five  cents  a  mile  for  going  and  returning.i^  a  witness  in  a 
criminal  case  on  the  part  of  the  United  States  is  usually  required 
to  attend  upon  service  of  a  subpaMia  without  the  prepayment  of 
his  fees  or  mileage,  which,  however,  he  can  subsequently  collect 
The  courts  of  the  United  States  have  no  power  to  compel  the 
attendance  of  persons  to  an  examination  in  a  foreign  country. 
Such  testimony,  therefore,  can  only  be  taken  against  the  will 
of  a  witness  by  the  aid  of,  and  by  means  of  the  remedies  admin- 
istered by,  a  foreign  court." 

§  343.  Compelling  a  witness  to  testify.  When  a  witness,  wlic 
has  been  properly  served  with  a  subpoena,  refuses  to  attend,  or 
when  upon  his  examination  he  refuses  to  answer  a  relevant  and 
proper  question,  against  answering  which  he  is  not  protected  by 
his  privilege  bv  the  old  rules  he  was  liable  "to  be  proceeded 
against  in  three  ways:  first,  by  attachment  for  contempt  of  the 
process  of  the  court ;  secondly,  by  a  special  action  on  the  case  tor 
damages  at  common  law ;  and  thirdly,  by  action  on  the  statute 
5  Eliz  c  9  §  12,  for  the  further  recompense  given  by  that 
statute,'  if  it'  has  been  previously  assessed  by  the  court  out  of 
which  the  process  issued. "  ^ 

In  the  Federal  courts,  a  witness,  if  contumacious,  may  be 
punished  for  contempt,^  and  is  also  probably  liable  to  an  action 
for  the  damages  sustained  by  his  refusal.  Special  statutes  pro- 
appear  before  him  at  a  place  withiu  a  like  offense  on  the  trial  of  a  suit. ' ' 
thf  District,  at  some  reasonable  U.  S.  R.  S.,  S  874.  '  Every  witness 
til,^o  be  s'tated  therein,  to  testify  nppearin.  and  test.fy.ng  urn  er^  e 
V.  if  "  TT  9  -R  S  S873.  said  provisions  relating  to  the  Dis- 
::^;  n:::-obtaLf  ulf  the  two  triet  ^of  Columbia  shall  be  entitl^ 
preceding  'sections  shall  be  taken  to  receive  for  each  day  s  attendane, 
down  in  writing  by  the  officer  before       from  the  party  at  whose  rnstance  h 

horn  the  wLL  appears,  and  is  sunnnoned,  the  fees  now  proved  d 
IhaTl  be  certified  and  transmitted  by  law  for  each  day  he  shall  gne 
by   him   to    the   court    in    uhu-h    the       att.mda,.e.-  ,„^,,,  ,  ,i,. 

suit   is  pending,   in    such   n.anner   as  I     S.  R.  ^J^^^^' 1'%.^ 

the   practice   of   that   court   may   re-  16  U.   fe.   ^.   Uuriin^,  •*   i    . 

quire.      If    any    person     refuses    or       ,«/m     §419 
neglects  to  appear  at   the  time  and  '' ^;'J'%l^f-  _^    „„ 

place  mentioned  in  the  ;-----  J  ^^^'^   ^^'1%  ^^   ,.^,,,  ^S  428- 

on    his   appearance,    refuses   to    tes-  -:  l  .  r^.  n.  .->.,  »  ; 

tify,  he  shall  be  liable  to  the  saine      4:58. 
penalties  as    would    lu'    iiuMirrod    for 


1744 


EVIDENCE 


[§343 


vide  for  the  punishment,  under  the  criminal  laws,  of  witnesses 
who  refuse  to  appear  or  testify  before  Congressional  Commit- 
tees,^ court-martials.*  and  certain  commissions  and  commis- 
sioners.* It  has  been  held  that  a  witness,  who,  under  the  advice 
of  counsel,  refuses  to  answer  before  a  court-martial,  a  question 
which  might  subject  him  to  a  prosecution  for  libel,  cannot  be 
punished.^  A  case,  which  has  been  severely  criticised,  holds  that 
a  witness,  who  has  attended  before  a  Congressional  Committee 
without  a  subpo'iia,  cannot  l)e  punished  for  refusing  to  answer 
a  question.''' 

Upon  an  application  to  punish  a  witness  for  refusing  to  answer 
a  question,  the  power  of  the  officer  before  whom  he  is  examined-, 
and  the  materiality  of  the  question,  may  both  be  considered;* 
but  he  will  rarely  be  relieved  from  answering  because  of  an 
objection  to  the  relevancy  or  materiality  of  the  question.^  Care 
will  be  taken  not  to  compel  a  witness  needlessly  to  disclose  his 
])usiness  secrets  ^®  and  private  papers.^^    A  court  of  equity  will 


3U.  S.  K.  S.,  §  116;  He  Chapman, 
166  U.  S.  661;  Macartney  v.  U.  S., 
5  Ai)p.  D.  C.  122;  U.  S.  v.  Rearles, 
2.')  Wash.  L.  and  Rep.  384. 

4;n  St.  at  L.  950. 

S  Sueh  as  the  Interstate  Com- 
merce Commission,  27  St.  at  L.  423 ; 
the  Federal  Trade  Commission,  38 
SL.  at  L.  722;  the  Railroad  Labor 
Board  Act  of  Feb.  20,  1920,  §  310. 
See  §«  5,  77c,  77f,  77h,  339b,  supra. 

6U.  S.  V.  Praeger,  149  Fed.  474. 

7U.  S.  Y.  Searles,  25  Wash.  Law 
Rep.  384. 

iEx  parte  Peck,  3  Blatehf.  113, 
Er  parte  Judson,   3  Blatehf.   89. 

9  New  England  Phonograph  Co.  v. 
National  Phonograph  Co.  et  al.,  148 
Fed.  324;  Buckeye  Powder  Co.  v. 
Hazard  Powder  Co.,  205  Fed.  827. 
See  infra,  S  352. 

10  Robinson  v.  Phila.,  etc.,  R.  Co., 
28  Fed.  340,  342.  See  supra,  §  339a. 
A  court  might  refuse  to  compel 
the  defendant  in  an  infringement 
suit  to  disclose  a  process  which 
was  a  business  secret.  Aniline  & 
Soda  Fabrick  v.  S.  Klipstein  &  Co., 
125   Fed.    543;    but    failure    to    dis 


close  his  process  of  manufac- 
ture, and  silence  for  this  reason 
does  not  relieve  from  the  burden 
of  j)roving  a  negative  of  a  prima 
farie  case  established  by  the  com- 
plainant. Philadelphia  Rubber 
Works  Co.  V.  United  States  Rubber 
Reclaiming  Works,  225  Fed.  789. 
It  has  been  held  that  the  defend- 
ant cannot  be  compelled  to  disclose 
tlie  names  of  confidential  customers 
to  whom  he  has  furnished  articles 
covered  by  the  patent,  at  least  be- 
fore an  accounting  has  been  or- 
dered. Roberts  v.  Walley,  14  Fed. 
167.  But  in  an  action  of  replevin 
to  recover  property,  on  the  ground 
that  it  was  bought  wuth  the  inten- 
tion of  breaking  a  contract  between 
the  plaintiff  and  the  buyer  by  sell- 
ing it  to  the  defendant;  it  was 
1  eld  that  an  officer  of  the  defend- 
ants could  be  required  to  testify 
whether  they  had  ever  bought  any 
of  the  same  or  had  any  interest 
therein,  and  to  their  custom  of 
scratching  off  serial  numbers  on  the 
wrapi)ers    and    labels    before    they 


§  :M:jJ 


(•(t.\lJ'j:iJ.I.\(;    WITNKSS  T(l   TKSTIKV 


174: 


not,  except  possibly  in  an  extraordinary  case,  require  a  party  to 
repeat  in  pnl)li('  certain  experimeiits.^^  Ordinarily,  a  corpora- 
tion, even  if  it  is  a  j)ai-ty  to  the  snit,^^  will  not  be  required  to 
permit  a  general  inspection  of  its  books  and  papers;  but  only 
those  can  be  examined  which  are  shown  to  be  relevant  to  the 
issues.^*  The  })rivileges  of  the  witness  will  be  protected."  He 
cannot  refuse  to  produce  a  paper  which  is  relevant  because  he  is 
not  a  party  to  the  suit.^^ 

A  witness,  who  attends  without  service  of  a  subpa^na,  may  be 
punished  for  refusing  to  answei-  a  proj)er  (luestion.^'^  But  where 
the  oral  testimony  of  a  witness  had  been  concluded,  and  he  had 
refused  to  produce  a  paper  voluntarily ;  it  was  held  that  he  could 
not  be  punished  for  contempt  in  failing  to  appear  at  an  ad- 
journed hearing,  when  he  was  not  tendered  his  fee  for  such 
attendance,  nor  served  with  a  subpoena  duces  tecum.^^     Where 


stiipped    thoin,   and   to   pToduce    eor- 
respondeme     relating    to    the     sale; 
although   it   was  i-ontended  that   the 
questions  were  irrelevant  and  tended 
to    distdose     trade     secrets,    consist- 
ing   of    the    names    of    the    persons 
througli    whom    the    defendants    ob- 
tained   the    goods.      Ee    Park,    1:58 
Fed.   421 ;    and   a   complainant   in   a 
suit    in    equity    against    a    railway 
company    may    require    a    witness   to 
disclose    the    extent    of    his    interest 
in    another    corporation,   which    owns 
a   majority    of   the   stock   of   the   de- 
fen.iant.     Teller  v.  Tonopah  &  G.  R. 
Co.,  lol  Fed.  607.     A  party  may  be 
compelled  to  produce  an  application 
for  a   patent  which  has  not  been  is- 
sued   and    correspondence    with    the 
Patent    Oflice    upon    the    subject,    al 
though     he    claims    that     the    result 
will   be  to   disclose  confidential  com- 
munications     with      his      attorneys. 
Edison    El.   L.   Co.   v.   V.    S.    El.   L. 
Co.,  4;')  Fed.  ofi;    and  s.  c.,  44  Fed. 
294.      But    see    Rule    15    of    Patent 
Office;     r.    S.    R.    S.,    §4902.      See 
s^ipra,  §§  :{::2,  :i:'.9a,  note  1. 

11  TIenrv  v.  Travelers'  Tns.  Ctt.,  ^^^) 


Fed.   ll.     But  see  Lloyd   v.  Pennie, 
.■)0  Fed.  4,  11. 

12  Simonds  R.  M.  Co.  v.  Hathorn 
Mfg.  Co.,  83  Fed.  490;  Glauber  v. 
H.  Mueller  Mfg.  Co.,  C.  V.  A.,  241 
Fed.  487. 

13  See  Hale  v.  Henkel,  201  U.  S. 
4;i,  .50  L.  ed.  652.     Supra,  S  :J41. 

14  Southern  Ry.  Co.  v.  North 
Carolina  Corp.  Com 'rs,  l'>4  Fed. 
700;  supra,  §.'541.  Contra.  Wer- 
theim  v.  Continental  Ry.  &  Tr.  Co., 
1.1  Fed.  716;  V.  S.  v.  H:ii)ock, 
I><1.  Cas.  No.  14,484.  Cf.  Russell 
v.  McLennan,  Fed.  Cas.  No.  12,158; 
lie  Hirsch,  74  Fed.  928;  McMidicn 
v.  Ritchie,  57  Fed.  104.  As  to  the 
right  of  a  stockholder  to  inspect 
the  l)Ooks  of  the  corporation,  see 
Ranger  v.  Champion  C.  P.  Co.,  51 
F.mI.  61. 

15  Butler  v.  Fayerweather,  C.  C. 
.A..  91    Fed.  458. 

16  Buckeye  Pow<ler  Co.  v.  Hazard 
I'owder   Co..  205   Fed.   827. 

17  V.  S.  v.  Armour  &  Co.,  142  Fed. 
808,  824. 

18  He  Johnson  &  Knox  Lumber 
C(,.,   C.   C.    A..    151   Fed.  207. 


1746  EVIDENCE  [§  344 

a  party  to  an  interference  proceeding  testified  on  his  own  behalf, 
and  then  permitted  adjournments  by  consent,  until  it  was  too 
late  to  enforce  by  subpa?na  his  attendance  for  cross-examination 
within  th'C  time  allowed  by  the  Commissioner  of  Patents ;  it  was 
held  that  his  appearance  might  be  ordered  by  the  court.^^ 

The  application  to  punish  a  witness  for  his  refusal  to  attend 
must  be  made  to  the  court  which  issued  the  subpoena.^" 

Upon  an  application  to  punish  a  witness  for  contempt  for 
failure  to  produce  a  paper  in  obedience  to  a  subpoena  duces 
tecum;  it  has  been  said,  that  the  materiality  of  the  paper  will 
not  be  determined  until  it  is  produced ;  ^^  and,  if  there  is  color 
for  the  claim  that  the  paper  is  material,  its  production  will  be 
compelled,  and  the  decision,  as  to  its  admission  in  evidence  will 
be  postponed  to  the  final  hearing.^^ 

The  rules  concerning  the  privileges  of  witnesses,  and  the  ma- 
teriality and  relevance  of  evidence,  are  substantially  the  same 
in  equity  and  at  common  law.^^ 

Orders  punishing  for  contempt  witnesses,  who,  in  order  to 
raise  jurisdictional  objections,  have  refused  to  be  sworn  or  to 
answer  certain  questions,  have  been  stayed  pending  their  review 
by  the  Circuit  Courts  of  Appeals.'^* 

§  344.  Testimony  taken  in  equity  which  may  be  used  in 
other  courts.  Testimony  may  be  taken  in  a  court  of  equity 
for  use  in  other  courts,  as  well  as  for  its  own  use,  by  bills  to 
perpetuate  testimony  ^  and  bills  to  take  testimony  de  hene  esse;  ^ 
and  formerly,  at  least  testimony  could  be  taken  in  a  court  of 
equity  for  use  in  another  court  by  a  bill  of  discovery.^ 

§345.  Bills  to  perpetuate  testimony.  "In  any  case  where 
it  is  necessary  in  order  to  prevent  a  failure  or  delay  of  justice, 
any  of  the  courts  of  the  United  States  may  grant  a  dedimus 
potestatem  to  take  depositions  according  to  common  usage;  and 
any  "District  court,  upon  applications  to  it  as  a  court  of  equity, 

19Lobel  V.  Cossey,  C.  C.  A.,  157  2^  Be  Spofford,  62  Fed.  434;  But- 
Fed.   664.  ler  -V.    Fayerweather,    C.    C.    A.,    91 

20  Be  Allis,  44  Fed.  216.  Fed.  458. 

21  Edison  Ei.  L.  Co.  v.  U.  S.  El.  §  344.     1  I^ifro.,  §  345. 
L.    Co.,   44   Fed.   294.  2  Infra,  §346. 

22  Edison   El.  L.   Co.  v.  U.  S.  El.  3  Infra,  §347. 
L.  Co.,  45  Fed.   55,  59. 

23  Stevens  v:  Cooper,  1  J.  Ch.   (N. 
Y.)   425,  7  Am.  Dec.  499. 


§345]  BILLS  TO  PERPETUATE  TESTIMONY  1747 

may,  according  to  the  usages  of  chancery,  direct  depositions 
to  be  taken  in  perprtnaui  rei  niem&riam,  if  they  relate  to  any 
matters  that  nvdv  be  cognizable  in  any  court  of  the  United 
JStates. "  ^  In  order  to  ol)tain  such  a  direction,  the  party  wishing 
the  testimony  taken  should  file  a  bill  to  perpetuate  testimony.^ 
A  bill  to  perpetuate  testimony  must  contain  all  the  facts 
neeessar.y  to  give  the  court  jurisdiction.  It  must  state  with 
reasonable  certaintj"  the  subject-matter  touching  which  the  plain- 
tiff is  desirous  of  taking  testimony,^  and  show  that  it  is  a  matter 
which  ma^'  be  cognizable  in  a  court  of  the  United  States.*  It 
should  also  show  that  the  plaintiff  has  some  interest  in  the  sub- 
ject-matter, Mdiich  may  be  endangered  if  the  testimony  in  sup- 
port of  it  is  lost.  A  mere  expectancy,  however  strong  and  well- 
founded,  is  not  sufficient.  It  has  been  said,  "Put  the  case  as  high 
as  possible;  that  the  party  seeking  to  perpetuate  the  testimony 
is  the  next  of  kin  of  a  lunatic:  that  the  lunatic  is  intestate;  that 
he  is  in  the  most  helpless  state,  a  moral  and  physical  impossibility 
(though  the  law  wouM  not  so  regard)  that  he  should  ever  re- 
cover ;  even  if  he  were  in  articulo  mortis,  and  the  bill  was  filed  at 
that  instant;  still,  the  plaintiff  could  not  qualify  himself  to 
maintain  it,  as  having  any  interest  in  the  subject  of  the  suit."^ 
If,  moreover,  the  interest  be  such  a  one  as  may  be  immediately 
bari-ed  by  the  party  against  whom  the  bill  is  brought,  it  has  been 
said  that  the  court  will  withhold  its  assistance,  for  it  would  be  a 
fruitless  exercise  of  power.^  Such  a  bill  must  also  show  that 
the  defendant  has,  or  claims  to  have,  a  title  or  interest  in  oppo- 
sition to  that  of  the  plaintiff  in  the  subject-matter  of  the  proposed 
testimony;  "^  a.s,  for  example,  that  the  defendant  claims  an  exclu- 
sive right  to  the  use  of  a  process  which  the  plaintiff  is  using,  and 
rests  his  claim  upon  letters-patent  which  the  proposed  testimony 

§345.     lU.  S.  R.  S.,  §866.     Tcs  4  U.  S.  R.  S.,  §868;   N.  Y.  &  B. 

tiniony  may  thus  be  taken  before  a  0.  P.  Co.  v.  N.  Y.  C  P.  Co.,  9  Fed. 

District  Court  while  a  case  is  pend-  578.      But   see   Morris   v.    ^Tnrris,    2 

ing  in  the  Circuit  Court  of  Appeals  Piiill.  205,  208. 

on  appeal  from  a  decree  dismissing  6  Dursley  v.   Fitzhardinge,  6  Ves. 

a     bill     for     insuflSeiency.       Eichtor  260. 

V.  I^nion  T.  Co.,  115  U.  S.  55.  6  Dursley   v.   Fit/.hardinge.   6   Ve<>. 

2N.  Y.  &  B.  C.  P.  Co.  V.  N.  Y.  C.  261,   263. 

P.  Co.,  9  Fed.   578.  7  Story 's    Eq.    PI.,    §302. 

3  Story's  Kq.   PI.,   §§  :U)0,  .305. 


1748  EVIDENCE  •      [§  345 

will  show  to  be  invalid ;  ^  and  some  ground  of  necessity,  for 
perpetuating  the  evidence ;  as  that  the  facts,  to  which  the  testi- 
mony of  the  witness  proposed  to  be  examined  relate,  cannot  be 
immediately  investigated  in  a  court  of  law  or  c(iuity, — or,  if 
they  can  be  immediately  investigated,  that  the  right  to  commence 
such  a  suit  or  action  belongs  exclusively  to  the  defendants  or  that 
the  defendant  has  interposed  some  impediment,  sucii  as  an 
injunction,  to  an  iniiuediate  trial  of  the  matter  in  a  court  of 
law;  or  that,  before  the  investigation  can  take  place,  the  evidence 
of  a  material  witness  is  likely  to  be  lost  by  his  threatened  death, 
illness,  or  departure  from  the  jurisdiction  of  the  court ;  *  but  the 
fact  that,  in  the  case  recently  cited,  the  Attorney-General  might 
institute  a  proceeding  to  annul  a  patent,  did  not  prevent  the 
granting  of  the  prayer  of  the  bill.^®  The  prayer  should  be  for 
leave  to  examine  the  witnesses  touching  the  matter  stated  to  the 
end  that  their  testimony  may  be  preserved  and  perpetuated,  and 
for  the  proper  process  of  subpoena."  It  has  been  held  that  if 
it  adds  thereto  a  prayer  for  other,  or  for  general  relief,  it  will 
be  demurrable  for  that  reason,!^  although  the  court  may  allow 
an  amendment  omitting  that  part  of  the  prayer.^'  An  affidavit 
of  the  circumstances  by  which  the  evidence  intended  to  be  per- 
petuated is  in  danger  of  being  lost,  must  be  filed  with  the  bill." 

8N.  Y.   &   B.   C.    P.   Co.  V.   N.   Y.  9  Angcll    v.    Angell,    1    Sim.    &    S. 

C.    P.    Co.,    9    Fefl.    578;    Westing-  83;   N.  Y.  &  B.  C.  P.  Co.  v.  N.  Y. 

house  Maeh.  Co.  v.  El.  Storage  Bat-  C.   P.  Co.,  9   Fed.   578;    Story's  Eq. 

tery  Co.,  C.  C.  A.,  25  L.R.A.   (N.S.)  PL,    S303;    Daniell's   Ch.    Pr.   1572, 

673,    170    Fed.    430;    reversing    165  1573. 

Fed.  992;    where   it   was  held   to  be  ">  N.   Y.  &  B.  C.  P.  Co.  v.  N.  Y. 

sufficient   to   allege:    that   defendant  C  P.   Co.,  9  Fed.  578. 

charged    that    an    article    niamifac-  "  Story 's  Eo.  PI.,   §  306. 

tured   and   sold    by   complainant   in-  12  Rose    v.    Gannel,    3    Atk.    439 ; 

fringed   a   patent   owned   by   defend-  Vaughan    v.    Fitzgerald,    1    Seh.    & 

ant    and    threatened     suits    against  Lef.    316;    Aetna    Life    Ins.    Co.    v. 

complainant   and   its  customers,   but  Smith,     T.i     Fed.     318;     Dalton     v. 

refused  to  bring  the  same;  and  that  Thompson,   1   Dickens,  97.     But  see 

complainant    could    prove    that    de-  Equity    Rule    21;     Cleland    v.    Cas- 

fendant's   patent    was    void   by   the  Riain,   92    Mich.    139;    s.    c,   52   N. 

testimony  of  eertian  designated  wit  W.  460. 

nesses   and   not   otherwise,   although  13  Vaughan  v.  Fitzgerald,  1   S.  & 

there    was    no    allegation    that    the  L-  316. 

witnesses  were  about  to  depart  from  1*  Earl  of  Suffolk  v.  Green,  1  Atk, 

the  jurisdiction  or  were  infirm  or  old.  450;    Philips   v.    Carew,   1   P.   Wnis. 


345  J 


rUI-LS  TO  I'KKJ'KTIATi;  Tr-.S'II  MO.N  V 


174M 


An  omission  of  any  ol"  llio  I'oi'c^foinij;  slatenients  in,  or  rfM|uire- 
inenls  ol",  llic  bill  will  make  it  drmnrrabk' ;  and  if  any  of  the 
necessary  allc^^al  ions  arc.  false,  oi-  iIutc  is  another  objection  not 
aj)i)areiit  upon  llic  face  of  llic  bill,  lliat  may  be  taken  by  j)lea 
or  answer.^*  ( )t  lici'w  isc.  ilic  bill  sliould  conform  substantially  In 
the  i-c(juircmciits  of  oiJLiiiijd  bills  praying'  rcTn'l'.  Such  a  bill, 
it  has  been  held,  caniiol  by  aincndmcnl  be  convcilcd  inio  a  bill 
of  discovery. ^"^  It  is  of  itself  a  bill  of  iliseovery  only  to  the 
extent  of  enabling-  the  j)lainlit1'  to  obtain  the  relief  prayed  for 
in  it.  and  lie  can.  therefore,  only  re(|uire  an  answer  from  the 
defendant  as  lo  the  facts  alleged  in  the  bill  as  entitling  him  to 
examine  the  witnesses.^'''  If  the  defendant  answer  denying  the 
l)laintit¥'s  case,  witnesses  may  be  examined  as  to  the  point  in  issue 
by  either  paity.^^  Otherwise,  such  a  l)ill  should  not  be  brought 
to  a  hearing;  and  if  the  i)lain1iff  do  so,  it  will  be  dismissed  with 
costs,  but  without  ])rejudiee  to  the  use  of  the  testimony  taken 
in  pursuance  of  its  prayer. ^^  ll  is  said  that  ''if  the  plaintiff 
neglects  to  proceed  with  the  suit,  the  defendant  cannot  move 
to  dismiss  for  want  of  prosecution  ;  but  may  move  that  the  plain- 
tiff be  ordered  to  take  the  next  step,  within  a  limited  time,  or 
to  pa.v  him  the  costs  of  the  suit.  If  the  defendant  neglects  to 
take  the  steps  proper  to  he  taken  by  him  within  the  prescribed 
time,  the  court  will,  it  seems,  order  the  examination  of  the  wit- 
n.esses  to  })roceed."^®  If  no  valid  objection  is  made,  the  court 
will  oi-der  the  testimony  to  be  taken. 

Both  parties  may  examine  witnesses  under  the  order,^^  and 


117:  Sliivlcy  V.  Earl  Ferrers,  :'<  W 
Wms.  77. 

15  Story  's   Eq.  PI.,  §  306a. 

16Elliee  v.  Tioupell,  :V2  Boav.  li!)!» ; 
s.  c.  9  Jiir.   (N.ft.)    -)M). 

ITEllicc  V.  RdiiiH'll,  ;;2  Beav.  I'.OS ; 
s.  e.,  9  .Tur.   (N.S.)    ;13n. 

18  Brigstofke  v.  l?oeh,  7  .Tiir.  (X. 
H.)  6:\.  The  faihn-e  of  tlie  defeiul- 
aiit  to  lall  witiii'sscs  to  ileiiy  the 
facts  to  wliii'h  llic  i-oiii]>laiiiaiit 's 
witnesses  testilicil,  iloes  not  prevent 
liis  coiitrailicfniii  such  testimony 
when  the  depositions  tlien  t:iken  ai(> 
offered  in  evidence  in  a  suhse(|uent 
suit  or  proceeding.  Et  parle  Wintj 
Fed.  Pra.-.  Vol.  11—40 


Von.  C.   r.   A..  190  Fed.  294. 

19  Hall  V.  Hoddlesdon,  2  P.  Wms. 
I(i2:  .\non..  Anib.  2:57:  s.  c,  2  Ves. 
Sen.  197;  Vanghan  v.  Fitzgerald, 
1  Sch.  &  Lef.  316;  Morrison  v.  Ar- 
iK.ld.  19  Ves.  670;  Ellice  v.  Ronpell, 
:i2    Beav.    308. 

20  naniell's  Ch.  Pr.  (.Ith  Am.  od.) 
1.173;  Wright  v.  Tathani,  2  Sim. 
4.')9;  Beavan  v.  Carpenter,  11  Sim. 
22:  Covciiy  v.  Athill.  1  Dic-k.  3").=); 
Lainaster  v.  Lancaster,  6  Sim.  439. 

21  Sheward  v.  Sheward.  2  V.  &  B. 
lit!;  Earl  of  Aliergavenny  v.  Pow- 
ell, 1  Meriv.  434;  Skrine  v.  Powell, 
1.")  Sim.  81  ;  S.  C  9  .Tonr.  10;i4. 


1750  EVIDENCE  [§  346 

either  party  must  be  allowed  to  croiis-examiiie  those  whom  his 
opponent  examines  in  chief. ^^  After  the  witnesses  have  been 
examined,  the  canse  is  at  an  end,^^  and  if  the  defendant  have 
examined  no  witnesses  in  chief  he  will  be  entitled  to  his  costs ; 
but  by  receiving  costs  he  waives  any  objection  he  might  otherwise 
be  entitled  to  make  on  the  ground  that  he  has  had  no  sufficient 
opportunity  of  cross-examination.^*  The  testimony  thus  taken 
is  filed  in  the  clerk's  office,  and  can  be  used  in  a  subsequent  case 
at  law  or  in  equity  in  the  same  court,  under  an  order,  which 
must  be  obtained  by  motion  upon  notice,  and  supported  by  proof 
of  the  witness's  death,  or  that  he  cannot  be  then  compelled  to 
attend  and  testify.^^ 

§346.  Bills  to  take  testimony  de  bene  esse.  1  Jills  to  take 
testimony  de  hene  esse  were  formerly  filed  after  a  suit  or  action 
had  been  begun,  in  order  to  take  the  testimony  of  such  witnesses 
as,  on  account  of  their  age,  infirmity,  or  intention  to  depart  from 
the  jurisdiction  of  the  court,  it  was  feared  could  not  be  taken 
in  its  regular  method  of  proceeding.^  Such  bills  must  substan- 
tially comply  with  the  rules  regulating  bills  to  perpetuate  testi- 
mony, with  which,  indeed,  they  have  been  often  confounded.^ 
Now  that  the  same  relief  can  be  afforded  under  the  statutes  both 
of  most  of  the  individual  States  and  of  the  United  States,^  it  is 
rarely,  if  ever,  that  an  occasion  for  their  use  arises. 

§  347.  Bills  of  discovery.  By  the  former  practice,  every  bill 
might  seek  discovery,  but  the  kind  of  bill  called  a  bill  of  dis- 
covery is  a  bill  filed  for  the  sole  purpose  of  obtaining  a  discovery 
of  facts  resting  in  the  defendant's  knowledge,  or  of  deeds,  writ- 
ings, or  other  things  in  his  custody  or  power ;  and  seeking  no 
relief  in  consequence  of  the  discovery,  except  possibly  a  stay  of 
proceedings  till  the  discovery  is  made.^  A  bill  of  discovery  is 
usually  filed  in  aid  of  the  jurisdiction  of  another  court.^ 

In  England,  actions  purely  for  discover}^  can  still  be  sustained 

22 Darnell's  Ch.  Pr.  (5th  Am.  ed.)  §346.     1  Story 's  Eq.  PI.,  §307. 

1573,  1574.  2  Ibid. 

23  Morrison    v.    Arnold,    19    Ves.  3  U.  S.   E.   S.,   §§863-865;    Equity 

670;   Vaughan  v.  Fitzgerald,  1  Sch.  Rule  70;  infra,  §354. 

&  Lef.  316.  §347.     1  Daniell 's    Ch.    Pr.     (5th 

24Watkins  v.   Atchison,   10   Hare,  Am.  ed.)    1556. 

Ap.  xlvi.  2Danieirs  Ch.  Pr.    (5th  Am.  ed.) 

25  Daniell 's  Ch.  Pr.  (."th  Am.  ed.)  1556. 

1574,  157.5. 


§  347] 


BILLS  OF  DISCOVERY 


1751 


in  certain  cases;  for  example,  to  produce  the  names  of  consignors 
and  the  particulars  of  a  shipment,^  in  aid  of  arbitration,*  in  aid 
of  proceedings  to  recover  land  in  India ;  ^  but  not,  it  was  held, 
in  aid  of  proceedings  in  a  foreign  court.^ 

Before  the  Equity  Rules  of  1912,  it  Avas  held,  that  a  bill  of 
discovery  could  not  be  maintained  in  a  court  of  the  United 
States  held  within  a  State  under  whose  statutes  a  party  could 
be  compelled  to  testify;  '^  but  by  the  preponderance  ol'  authority, 
such  a  bill  was  maintainable  in  such  a  case.^  The  present  ruU' 
seems  to  be  that  such  a  bill  can  now  be  sustained,  provided  the 
bill  shows  that  the  legal  remedies  are  insufficient.*  But  not 
otherwise.^®     In  determining  whether  the  bill  should  be  sus- 

lis,   90    Fed.    196;    Colgate   v.    Com- 
pagnie  Francaise,  23  Fed.  82;   Mc- 
Mullen  Lumber   Co.   v.   Strother,   C. 
C.    A.,     (Circuit),     1.36    Fed.    295; 
Brown    v.    Magee,    146    Fed.    76.1; 
Brown    v.    Palmer,    157    Fed.    797. 
See  also,  Paine  v.  Warren,  33  Fed. 
357.     The  court  sustained  a  bill  of 
discovery    in    aid    of    an    action    at 
law    upon    an    insurance    policy,    to 
compel  the  exhumation  of  the  body 
of  the   insured  and  its   examination 
in  aid  of  the  defense.     Mutual  Life 
Ins.    Co.   V.   Griesa,   156   Fed.    398; 
aff'd    Griesa    v.    Mutual    Life    Ins. 
Co.,  C.   C.   A.,   169   Fed.  509,   where 
it  was  said  that  the  question  would 
not  be  reviewed  after  the  disinter- 
ment and   autopsy  had  taken  place 
and  that  the  widow,  who  owned  the 
cemetery   lot   where   the   corpse   was 
buried,  was  a  proper  party  defend- 
ant. 

9  Carpenter  v.  Winn,  221  U.  S, 
533,  539.  31  Sup.  Ct.  683,  55  L.  ed. 
842;  Childs  v.  Missouri  K.  &  T. 
Ry.  Co.,  221  Fed.  219;  Scotten  v. 
Rosenblum.  231  Fed.  357,  359; 
Pressed  Steel  Car  Co.  v.  Union  Pac. 
R.  Co.,  240  Fed.  135;  Galion  Iron 
Works  Co.  V.  Ohio  Corrugated  Cul- 
vert Co.,  C.   C.   A.,  244  Fed.   427. 

10  Childs  V.  Missouri  K.  &  T.  Ry. 


3  Ol  r  V.  Diaper,  4  Ch.  D.  92. 
4Ainswortli    v.    Starkee,    (W.    N. 

1876)   P.  8. 

6  Reiner    v.    Salisbury,    2    Ch.    D. 

378. 

6  Dreyfus  v.  Peruvian  Co.,  41  Ch. 

D.  151. 

7R.indskopf  v.  Plato  (D.  Wis.), 
20  Fed.  130;  Paton  v.  Majors  (D. 
La.),  46  Fed.  210;  Preston  v. 
Smith  (D.  Mo.),  26  Fed.  884,  889; 
Safford  v.  Ensign  Mfg.  Co.,  C.  C. 
A.,  120  Fed.  480;  U.  S.  v.  Bitter 
Root  Dev.  Co.,  C.  C.  A.,  133  Fed. 
274;  affi'd  200  U.  S.  451;  Brown 
V.  McDonald,  130  Fed.  964;  Miller 
V.  Moise,  168  Fed.  940.  See  also 
Heath  v.  Erie  R.  Co.,  9  Blatchf. 
316;  Brown  v.  Swaun,  10  Pet.  497, 
9  L.  ed.  508;  Manchester  F.  A. 
Co.  V.  Stockton  C.  H.  &  A.  Works, 
38  Fed.  378;  Southern  Pac.  R.  R. 
Co.  V.  U.  S.,  200  U.  S.  341,  351, 
50  L.  ed.  507,  511;  Carpenter  v. 
Winn,  221  II.  S.  533,  540,  55  L. 
ed.  842,  845. 

8  Continental  Nat.  Bank  v.  Heil- 
man,  66  Fed.  184;  Kelly  v.  Boett- 
cher,  85  Fed.  55,  66;  National 
H.  B.  B.  Co.  v.  Interchangeable  B. 
B.  Co.,  C.  C.  A.,  83  Fed.  26,  30; 
Bryant  v.  Leyland,  6  Fed.  125; 
Indianapolis   Gas   Co.   v.  Indianapo- 


1752 


EVIDENCE 


^Ul 


taiiied  the  plaintiffs  pleading  in  the  action  at  law  may  be  con- 
sidered.^^ 

A  bill  of  discovery  might  be  maintained  in  snpport  of  a  suit 
in  another  State  or  in  a  foreign  eonntry.^^ 

It  will  not  he  allowed,  if  it  seek  a  discovery  of  matters  concern- 
ing which  a  party,  if  called  as  a  witness,  would  be  excused  from 
testifying;  13  nor,  it  has  been  said,  if  the  discovery  is  sought  in 
aid  of  an  action  for  a  mere  personal  tort.^*  A  bill  of  discovery 
can  only  be  filed  in  aid  of  a  .judicial  proceeding  already  com- 
menced or  immediately  contemplated.^^  If  tiled  in  aid  of  pro- 
ceedings already  begun,  no  person  may  be  made  a  party  to  it 
who  is  not  a  party  to  such  proceedings,!^  except  possibly  the 
officer  of  a  corporation. i''  If  in  aid  of  an  action  at  law,  it  must 
be  filed  before  verdict. ^^ 

A  bill  of  discovery  must  state  the  matter  touching  which  dis- 
covery is  sought,  show  that  both  the  plaintiff  and  the  defendant 
have  or  claim  an  interest  therein,  state  the  facts  and  circum- 
stances upon  which  the  plaintiff's  right  to  compel  discovery  from 
the  defendant  is  founded,  and  pray  that  the  defendant  may 
make  a  full  discovery  of  the  matters  therein  stated.i»  A  bill  of 
discovery  may  also  r)ray  any  e(initable  assistance  of  the  court 


Co.,  221  Fed.  219;  Piessod  Steel 
Car  Co.  V.  Union  Pac.  R.  Co.,  240 
Fed.  185;  Gallon  Iron  Works  Co. 
V.  Ohio  Corrugated  Culvert  Co.,  C. 
C.  A.,  244  Fed.  427.  In  an  action 
for  royalties  a  bill  of  discovery  was 
allowed  to  ascertain  the  numV)er  of 
articles  used  ]>y  defendant  which 
contained  a  certain  device,  since  this 
involved  an  investigation  into  sev- 
eral thousand  articles,  Init  not  as 
to  the  price  at  which  tlu^y  had  l>cen 
offered  defendant,  wliich  could  bo 
easily  ascertained  at  the  trial. 
Pressed  Steel  Car  Co.  v.  Union  Pac. 
R.  Co.,  240  Fed.  135. 

11  Pressed  Steel  Car  Co.  v.  Union 
Pac.  R.  Co.,  240  Fed.  13.j. 

12  Crow  V.  Del  Ris  &  Vallego,  Ch. 
1769;  Mitchell  v.  Smith,  1  Paige 
(N.  y.)   287. 

13  Glynn  v.  Houston,  1  Keen,  329; 


Langdell's  Eq.  IM.,  §69;  Wigrani 
on  Discovery,  §§130-138;  Daniell's 
Ch.  Pr.   (2d  Am.  ed.)   563-569. 

14  Glynn  v.  Houston,  1  Keen,  329. 
But  see  Green  v.  Delaware,  L.  & 
W.  R.  Co.,  211  Fed.  774.  For  dis- 
covery of  an  unlawful  combination, 
see  Evans  v.  Lancaster  City  St. 
Ry.  Co.,  64  Fed.  626. 

15  Mayor  of  London  v.  Levy,  8 
Yes.  398;  United  N.  J.  R.  &  C.  Co. 
v.  Iloppock,  1  Stew.  Eq.  (N.  J.) 
261;   Daniell's  Ch.  Pr.  1558. 

16  Queen  of  Portugal  v.  Glyn,  7 
CI.  &  F.  466;  Daniell's  Ch.  Pr.  (5th 
Am.  cd.)   1558. 

17  See  §  in. 

18  Brown  v.  Swann,  10  Peters, 
497,  9  L.  ed.  508;  Scotten  v.  Rosen- 
bluni.  231  Fed.  357,  3.59. 

19  Daniell's  Ch.  Pr.  (5th  Am.  ed.) 
1557. 


§347] 


BlLLis  OF  DISCOVKKV 


1753 


wliicli  is  lucrel}-  eoiisequeiitial  upon  the  jji-aycr  for  discovery  ;  ^^ 
but  if  it  sliould  pray  any  otlier  or  general  relief,  it  will  thereby 
become  a  bill  for  relief.^^  It  lias  been  said  that  a  bill  of  discovery 
may  tic  sustained  althoufrli  ii  waives  an  answer  under  oath.*^ 

It  seems  that  a  bill  of  discovery  need  not  allege  that  the  facts 
of  which  a  discovery  is  sought  are  within  the  exclusive  knowledge 
of  the  defendant,^^  but  it  will  be  denied  if  the  complainant  has 
:im])l('  knowledge  of  tlie  faets,^*  or  0(|ual  means  of  knowledge 
with  the  defendant. 2^  AVhei-e  the  discovery  is  sought  upon  sus- 
I)icion.  surmise,  or  vague  guesses,  it  is  dismissed  as  a  "fishing 
bill."'^^  'J'lie  discovery  must  be  of  matters  essential  to  a  plain- 
tiff's cause  of  action,  or  if  he  be  defendant  in  another  suit  or 
action,  to  his  affirmative  defense,  and  the  bill  must  not  seek 
discovery  of  the  evidence  of  what  belongs  solely  to  tbe  defend- 
jtnt's  case.^'''  AVhere  tlie  evidence  sought  is  cumulative  or  com- 
pai-atively  unimportant,  relief  may  be  denied.^*  Where  the  bill 
pi-ays  foi-  other  relief  it  should  allege  that  the  discovery  is  essen- 
tial to  such  i-elief.^^  The  defeiulant  may  oppose  a  bill  of  di.s- 
covei-y  by  a  motion  to  dismiss,^*'  or  in  his  answer,  in  the  same 
manner  as  he  might  oppose  a  bill  for  relief.  The  English  rule 
as  filially  (established,  was  that,  if  a  demurrer  were  intei-posed  to 
;j  hill  |)rayiiig  both  discovery  and  i'eli(>f.  and  the  bill  were  held 
not  to  show  a  propei-  ease  for  relief,  it  could  not  be  maintained 
for  discoverv  merelv.^i    This  seems  to  be  the  rule  in  the  Federal 


aOMitford's  Eq.  PI.,  ch.  i,  §2; 
I.oker  V.  Roll,  8  Ves.  4. 

21  Angell  v.  Wcsteomho,  6  Sim. 
30. 

22  Hudson  v.  Wood,  119  Fed.  7<54, 
776.  See  Scotten  v.  Rosenltlum,  2:U 
Fed.  357,  360. 

23  Metier  v.  Metier,  4  C.  E.  Green 
(19  N.  J.  Eq.),  457.  But  see  Bell 
V.  Pomeroy,  41  McLean,  57. 

24  Gallon  Iron  Works  Co.  v.  Ohio 
Oorriigated  Culvert  Co.,  C.  C.  A.,  244 
Fed.  427. 

26Kenney  v.  Rice,  2:!8  Fed.  444; 
^Wolcott  V.  National  Electric  Sifj- 
naling  Co..  235  Fed.  224. 

26  (General  Film  Co.  v.  Sani|iliMer, 
C.  C.  A.,  232  Fed.  95. 


27  Carpenter  v.  Winn,  221  1'.  S. 
533,  540 ;  Churchward  International 
Steel  Co.  V.  Bethlehem  Steel  Co., 
233  Fed.  322;  Pressed  Steel  Car  Co. 
V.  Union  Pac.  R.  Co.,  241  Fed.  964; 
Wigram  on  Discovery,  §372;  Lang- 
dell's  Eq.  PI.,  §172;  Tngilby  v. 
Shafto,  33  Beav.  31.  See  infra. 
§  348. 

28Gnlion  Iron  Works  Co.  v.  Ohio 
Corrugated  Co.,  C.  C.  A.,  244  Fed. 
427. 

29  Leo  Feist,  Inc.  v.  American 
^Fiisic  Roll  Co.,  C.  C.  A..  251  Fed. 
242. 

30  Evans  v.  Lancaster  (  ity  St.  l{y. 
Co..  64   Fed.  6l'6;    Eq.   Rule  29. 

31  Fry  v.  IVnn,  2  Bro.  C.  C.  280; 


1754 


EVIDENCE 


[§348 


courts ;  32  at  least  where  the  discovery  is  incident  to  the  relief 
prayed.33  By  the  former  practice  a  defense  founded  upon  the 
statute  of  limitations  or  laches  could  be  interposed  to  a  bill  of 
discovery  by  plea,^*  or,  if  it  appeared  upon  the  face  of  the  bill, 
by  demurrer;  35  but  not  a  defense  upon  the  merits  to  the  suit  in 
aid  of  which  it  was  filed.^^  A  material  amendment  of  a  bill  of 
discovery  will  very  rarely  be  allowed.^'^ 

A  bill  of  discovery  was  never  brought  to  a  hearing ;  but,  after 
tlie  defendant  had  put  in  a  full  answer  thereto,  he  was  entitled 
to  costs  of  the  suit,38  less  any  costs  allowed  the  plaintitf  upon 
exceptions  to  a  previous  answer  as  insufficient.^^ 

§  348.  Discovery  in  equity.  Under  the  former  practice,  dis- 
covery and  inspection  could  only  be  obtained  in  the  answer  of 
the  defendant,  made  either  to  a  bill  seeking  relief  and  discovery 
of  matters  thereto  incidental,  or  to  a  bill  filed  solely  for  dis- 
covery. 

The  new  Equity  Rules,  however,  provide:  "The  plaintiff  at 
any  time  after  filing  the  bill  and  riot  later  than  twenty-one  days 
after  the  joinder  of  issue,  and  the  defendant  at  any  time  after 
filing  his  answer  and  not  later  than  twenty-one  days  after  the 
joinder  of  issue,  and  either  party  at  any  time  thereafter  by  leave 


Loker  v.  Rolle,  3  Ves.  4;  Langdell's 
Eq.  PI.,  §  152. 

32Markley  v.  Mut.  Ben.  L.  Ins. 
Co.,  6  Ins.  L.  J.  537;  CecU  Nat. 
Bank  v.  Thiirber,  C.  C.  A.,  59  Ted. 
913;  Preston  v.  Smith,  26  Fed.  884; 
Safford  v.  Ensign  Mfg.  Co.,  C.  C.  A., 
120  Fed.  480;  Grieb  v.  Equitable 
Life  Assurance  Society,  189  Fed. 
498;  First  State  Bank  v.  Spencer, 
219  Fed.  503;  Childs  v.  Missouri 
K.  &  T.  Ry.  Co.,  221  Fed.  219.  But 
see  Livingston  v.  Story,  9  Pet.  632, 
9  L.  ed.  255;  Wriglit  v.  Dame,  1 
Met.  (Mass.)  237;  Higginbotham  v. 
Burnet,  5  J.  Ch.  (N.  Y.)  184; 
Story 's  Eq.  PI.,   §  412. 

S3  John  A.  Roebling  's  Sons  Co.  of 
California  v.  Kianicutt,  248  Fed. 
596. 

34  Beams  on  Pleas,  275;  Gait  v. 
Osbaldston,  1  Russ.  158. 


35Wooster  v.  Siedenbergh,  S.  D. 
N.  Y.,  Nov.  6,  1889. 

36  Pressed  Steel  Car  Co.  v.  Union 
Pac.  R.  Co.,  241  Fed.  964. 

37  Marquis  Cholmondeley  v.  Lord 
Clinton,  Meriv.   71. 

38Atty.  Gen.  v.  Bureh,  4  Madd. 
178. 

39  Hughes  v.  Clerk,  6  Hare,  195. 
See  also  Bryant  v.  Leland,  6  Fed. 
125,  U.  S.  C.  C,  D.  Mass.;  Easton 
V.  Hodges,  7  Bissell,  324,  U.  S.  C. 
C,  D.  Illinois;  Baton  v.  Majors,  46 
Fed.  210,  U.  S.  C.  C,  E.  D.  La., 
Billings,  J.;  Washburn  &  M.  Mfg. 
Co.  V.  Freeman  "Wire  Co.,  41  Fed. 
410,  U.  S.  C.  C,  E.  D.  Mo.,  Thayer, 
J.;  Washburn  &  M.  Mfg.  Co.  v  Cin- 
cinnati B.  W.  F.  Co.,  42  Fed.  675, 
U.  S.  C.  C,  S.  D.  Ohio. 


§  348]  DISCOVERY    IN    KQLITY  1755 

of  the  court  or  jud«;e,  may  file  iDterrogatories  in  writing  fur  the 
discovery  by  the  opposite  party  or  parties  of  facts  and  documents 
material  to  the  support  or  defense  of  the  cause,  with  a  note  at 
the  foot  thereof  stating  which  of  the  interrogatories  each  of  the 
parties  is  required  to  answer.  But  no  party  shall  file  more  than 
one  set  of  interrogatories  to  the  same  party  without  leave  of  the 
court  or  judge, 

''If  any  party  to  the  cause  is  a  public  or  private  corporation, 
any  opposite  party  may  apply  to  the  court  or  judge  for  an  order 
allowing  him  to  file  interrogatories  to  be  answered  by  any  officer 
of  the  corporation,  and  an  order  may  be  made  accordingly  for 
the  examination  of  such  officer  as  may  appear  to  be  proper  upon 
such  interrogatories  as  the  court  or  judge  shall  think  fit. 

"Copies  shall  be  filed  for  the  use  of  the  interrogated  party  and 
shall  be  sent  by  the  clerk  to  the  respective  solicitors  of  record,  or 
to  the  last  known  address  of  the  opposite  part}'  if  there  be  no 
record  solicitor. 

"Interrogatories  shall  be  answered,  and  the  answers  filed  in 
the  clerk's  office,  within  fifteen  days  after  they  have  been  served, 
unless  the  time  be  enlarged  by  the  court  or  judge.  Each  inter- 
i-ogatory  shall  be  answered  separately  and  fully  and  the  answers 
shall  be  in  writing,  under  oath,  and  signed  by  the  party  or  cor- 
porate officer  interrogated.  Within  ten  days  after  the  service  of 
interrogatories,  objections  to  them,  or  any  of  them,  may  be  pre- 
sented to  the  court  or  judge,  with  proof  of  notice  of  the  purpose 
so  to  do,  and  answers  shall  be  deferred  until  the  objections  are 
determined,  which  shall  be  at  as  early  a  time  as  is  practicable. 
In  so  far  as  the  objections  are  sustained,  answers  shall  not  be 
required. 

"The  court  or  judge,  upon  motion  and  reasonable  notice,  may 
make  all  such  orders  as  may  be  appropriate  to  enforce  answers 
to  interrogatories  or  to  effect  the  inspection  or  production  of 
documents  in  the  possession  of  either  party  and  containing  evi- 
dence material  to  the  cause  of  action  or  defense  of  his  adversary. 
Any  party  failing  or  refusing  to  comply  with  such  an  order  shall 
l)c  liable  to  attachment,  and  shall  also  be  liable,  if  a  plaintiff,  to 
have  his  bill  dismissed,  and,  if  a  defendant,  to  have  his  answer 
stricken  out  and  be  placed  in  the  same  situation  as  if  he  had 
failed  to  answer. 

"By  a  demand  served  ten  days  before  the  trial,  either  party 


1756 


EVIDENCE 


a  US 


may  call  on  the  other  to  admit  iu  writing  the  execution  or 
genuineness  of  any  document,  letter  or  other  writing,  saving  all 
just  exceptions;  and  if  such  admission  be  not  made  within  five 
days  after  such  service,  tlie  costs  of  proving  the  document,  letter 
or  wriliiig  shall  be  i)aid  by  {he  i)arty  refusing  or  neglecting  to 
make  such  admission,  unless  at  the  trial  the  court  shall  find  that 
the  refusal  or  neglect  was  reasonable."'^  This  is  derived  from 
Order  XXXI  of  the  Supreme  Court  of  England.  The  English 
cases  under  that  order  and  the  former  cases  upon  discovery  iu 
Chancery  will  be  useful  in  the  interpretation  of  the  new  rule.^ 
Unfortunately  many  of  the  district  judges  have  construed  the 
rule  more  narrowly. 

It  has  been  said  that  it  docs  not  alter  the  substantive  rules 
governing  discovery  in  equit.y  nor  give  any  right  to  discovery 
which  did  not  previously  exist;  ^  but  upon  this  question  the  final 
word  has  not  yet  been  spoken. 

Under  the  Chancery  practice,  the  party  interrogated  was 
obliged  to  answer  specifically  and  categorically,  distinguishing 
between  matters  within  his  personal  knowledge  and  those  ^^•ithin 
his  information  and  belief.*   He  had  then  to  answer  not  only  as 


§  :US.     1  Eq.  Eulo  .58. 

2  Lord  Chancellor  Lorebuni 
(Harv.  Law  Bcv.,  xxvi,  p.  106)  : 
"Either  party  to  the  suit  can  ob- 
tain an  order  for  discovery  of  docu- 
ments relevant  to  the  case  of  the 
adversary,  but  a  fishing  discovery — ■ 
that  is  to  say,  discovery  in  order  to 
enable  the  applicant  to  fish  for  a 
cause  of  action  when  he  has  no  ma- 
terials of  his  own — is  disallowed. 
It  must  always  be  a  matter  for  de- 
cision upon  the  circumstances  in 
each  case  whether  it  is  a  fishing 
application  or  not.  There  are  nu- 
merous decisions  illustrating  the 
way  in  which  this  rule  works.  Nor- 
mally each  party  must  disclose  the 
documents  relevant  to  his  op])0 
nent's  case  which  are  or  have  lieen 
in  his  custody  or  eontrol,  and  make 
an  affidavit  that  there  are  no  others. 
He  may  put  in  a  separate  schedule 


to  the  affidavit,  such  of  them  as  he 
claims  to  be  privileged  from  inspec- 
tion. Then  his  adversary  can  ob- 
tain inspection  of  such  as  the  judge 
thinks  are  not  privileged."  See 
General  Film  Co.  v.  Sampliner,  C. 
C.  A.,  232  Fed.  95. 

3  Wolcott  V.  National  Electric 
Signaling  Co.,  2.35  Fed.  224;  F. 
Rpeidel  Co.  v.  N.  Barstow  Co.,  232 
Fed.  617. 

4  Brooks  v.  Byam,  1  Story,  296; 
Kittredge  v.  Claremont  Bank,  3 
Story,  590;  s.  c,  1  W.  &  M.  244; 
Victor  G.  Bloede  Co.  v.  Carter,  148 
Fed.  127.  It  has  been  said  that  the 
defendant  must  answer  not  only  as 
to  all  facts  within  his  knowledge, 
but  to  all  which  he  can  ascertain 
from  an  inspection  of  books  and 
]iapers  in  his  possession  or  \inder 
his  control.  Davis  v.  Mapes,  2 
Paige  (N.  Y.)  105. 


§  :UcS 


DISCOVF.KY    IN    IX^ri'l'V 


IT.")? 


to  all  \'nr\s  williiii  Ilis  kii()\vl.'(l«rc.  l.iit  ;is  lo  all  wlii.-li  lu'  coulcl  as- 
certain fi-(iiii  an  inspcc-tion  of  hooks  and  papi-rs  in  his  possession 
or  nnder  liis  conlrol.^    He  was  also  re.piired  to  iiWr  a  full  answer 
eoncernin<r  any  in  format  ion  lliat  lie  eould  obtain  upon  the  sub- 
ject  from"  persons  in  his  employ.^     If  the   employees  were  no 
loiioei-    in    the    ])ai-1y's    employ,    lie    was   not    bound    to    proeure 
informal  ion    from    Ihem    in   order   lo   answer,"^   and   it    lias  been 
said   that    a   full   answer  which  would  involve  an  unreasonable 
exi)ense  may  be  excused.*     If  he  asserted   ijjnoranee  as  to  any 
matter,  he  was  re(iiiired  to  avei-  that   he  was  ignorant  both  of 
ilis  own  knowledge  and  as  to  information  and  ])elief ; »  but  if  he 
denied  knowledge  and  iid'oiination,  he  was  not  required  to  state 
his  helief.i®    Ho  eould  not  deny  that  be  had  no  knowledge  as  to 
a  subject,  which  the  bill  eharged  as  a   personal   transaotion   in 
which  he  had  taken  part." 

This  last  ruli)ig.  it  has  been  said,  apiilies  to  otihcers  of  coi-pora- 
lions.i2  if  new  officers  have  succeeded  those  in  office  at  the 
time  wlien  the  matters  charged  are  said  to  have  occurred,  it  is 
their  duty,  when  called  upon  for  discovery,  to  ascertain  the  facts 
by  searching  the  records  of  the  corporation  and  by  inquiry  of 
their  ])redecessors.i^ 

Where  it  was  shown  that  a  party  charged  with  infringement 
mad<'  a  device  substaidially  similar  to  that  produced  by  the 
complainant's  patented  machine,  and  the  former  refused  to  per- 


6  Davis  V.  Mapes,  2  Paige  (N. 
Y.)    105. 

6  In  England,  if  a  party  "is  in- 
terrogatpfl  about  acts  whioh  are 
(lone  ill  the  presence  of  persons  em- 
ployed liy  him  tlieir  knowledge  is 
his  knowledge,  and  he  is  bound  to 
answer  in  respect  of  that."  Eas- 
botham  v.  Shropstiire  T'nion  TJy.  & 
Canal  Co.,  24  Ch.  T).  110,  11:1;  Od- 
ger's  Pleading,  4th  ed.,  p.  271. 

7  Phillips  V.  TJouth  (L.  Ti.),  7  C. 
T.  287. 

SBolckow,  Yaughan  &  Co.  v. 
Fisher,  10  Q.  B.  D.  T51.  Cf.  Miller 
V.  Chicago  &  A.  li.  Co.,  17ti  Fed. 
:!79,  :!81.  But  see  Ball  v.  L.  &  N. 
\V.  Ry.  Co.,  :ir)  L.  T.  8-J8. 


9  Brooks  v.  Byam.  1  Story,  296; 
Kittredge  v.  Claremont  Bank,  1  W. 
&  M.  244. 

10  Victor  Cr.  Bloede  Co.  v.  Carter, 
148  Fed.  127. 

11  Burpee  v.  First  Nat.  Bank,  ;") 
Biss.  40o.  Tt  has  been  held  that  it 
is  insufficient  to  deny  fraud  charged 
to  have  been  committed  by  an  agent 
upon  the  information  of  the  agent 
and  the  belief  of  the  princijial. 
Mason  v.  Jones,  1  llayw.  &  H.  :V29: 
^.  c.  Fed.  Cas.  No.  9,240. 

12  Burpee  v.  First  Nat.  Bank,  'i 
Biss.  405;  Kittredge  v.  Claremont 
Bank,  1  W.  &  M.  244. 

13  Kittredge  v.  Claremont  Bank, 
1   W.  &  M.  214. 


1758 


EVIDENCE 


[§348 


mit  an  inspection  thereof  or  to  disclose  the  contents  of  an  appli- 
cation that  he  had  made  for  a  patent  in  relation  thereto;  an 
order  compelling  such  disclosure  or  permission  to  make  such 
an  inspection  was  granted.^* 

Objections  to  the  interrogatories  may  be  made  upon  the  same 
grounds  as,  under  the  former  practice,  by  a  demurrer  to  the 
discovery.  A  demurrer  to  the  discovery  claimed  that,  for  some 
reason  apparent  upon  the  face  of  the  biU,  the  defendant  should 
not  be  obliged  to  answer  so  much  thereof  as  his  demurrer  cover. 
Professor  Langdell  says:  "A  demurrer  to  discovery  indeed  is 
not  in  its  nature  a  demurrer  at  all,  but  a  mere  statement  in 
writing  that  the  defendant  refuses  to  answer  certain  allegations 
in  the  bill,  for  reasons  which  appear  upon  the  face  of  the  bill, 
and  which  the  demurrer  points  out. ' '  ^'  In  Chancery  a  defend- 
ant might  thus  demur  because  (1)  his  answer  might  subject  him 
to  a  pain,  penalty,  or  forfeiture.^^     This  rule  still  prevails.^'' 


14Rowell  V.  William  Koehl  Co., 
194  Fed.  446. 

15  Langdell 's  Eq.  PI.,  §  97.  The 
object  of  interrogating  is  twofold: 
first,  to  obtain  admissions  to  prove 
the  case  of  the  interrogator;  sec- 
ondly, to  ascertain  the  case  of  the 
interrogated.  Great  care  is  neces- 
sary in  their  preparation,  for,  if  the 
question  is  too  general  or  assumes 
the  existence  of  several  facts,  an  er- 
ror in  one  of  them  may  justify  a 
denial.  For  example:  if  the  inter- 
rogator has  heard  that  the  plaintiff 
gave  evidence  upon  an  examination 
Ijefore  Commissioner  Shields,  that  a 
certain  check  was  in  the  handwrit- 
ing of  James  Brown,  it  may  be  of 
no  use  to  put  the  interrogatory, 
"Did  you  not  state,  on  oath,  upon 
an  examination  before  Commission- 
er Shields,  that  the  said  check  was 
in  the  handwriting  of  Mr.  Brown?" 
To  discover  precisely  what  the 
plaintiff  denies,  the  question  should 
be  split  substantially  thus:  "Were 
you  not  examined  as  a  witness  be- 
fore Commissioner  John   A.   Shields 


on  October  25th,  1912?  Was  not  a 
cheek  then  and  there  produced  to 
you?  Was  not  the  check  then  and 
there  produced  before  you?  Was 
not  the  said  check  the  one  men- 
tioned in  the  third  paragraph  of  the 
bill  of  complaint  herein?  If  you 
answer  'No'  to  the  last  question, 
describe  the  check  that  was  then 
produced.  Did  you  not  say  that 
said  check  was  in  the  handwriting 
of  James  Brown?  Did  you  not  say 
so  on  oath?  Did  you  not  say  so  in 
the  presence  of  said  Commissioner 
Shields?  If  you  answer  'No'  to 
any  of  the  last  three  questions,  in 
whose  handwriting  did  you  say  the 
said  cheek  was?"  Under  the  Clian- 
cery  practice,  it  was  the  custom  to 
close  a  leading  interrogatory  with 
the  words,  "or  how  otherwise?" 
Union  Sulphur  Co.  v.  Freeport 
Texas  Co.,  234  Fed.  194. 

16  Stewart  v.  Drasha,  4  M  'Lean, 
563;  Atwill  v.  Farrett,  2  Blatchf. 
39;  U.  S.  V.  White,  17  Fed.  561, 
565;  Snow  v.  Mast,  63  Fed.  623; 
Paxton    V.    Douglas,    19    Ves.    225; 


§348] 


DISCOVERY   IX    KQIITY 


1759 


It  has  hecMi  lield  that  it  applies  to  an  action  at  law  because  of 
the  infringement  of  a  patent  in  which  treble  damages  are  asked." 

(2)  That  it  was  immaterial  to  the  purposes  of  the  suit.^^ 

(3)  That  it  would  involve  a  breach  of  some  confidence  which 
it  is  the  policy  of  the  law  to  preserve  inviolate,^®  as  a  profes- 
sional confidence,2i  or  one  obtained  in  the  course  of  a  public 

office.^^ 

(4)  That  the  matters  of  which  a  discovery  was  sought  per- 
tained exclusively  to  the  defendant's  'easels  ]Mattors  disclosed 
in  the  answer  material  to  the  complainant's  case  may  be  made 
the  subject  of  interrogatories.^* 

(5)  Because  the  defendant  had,  "in  conscience,  a  right  equal 
to  that  claimed  by  a  person  filing  a  bill  again.st  him  though  not 
clothed  with  a  perfect  legal  title,  "^^  as,  if  he  were  a  purchaser 
in  good  faith,  and  for  a  valuable  consideration,  without  any 
notice  of  the  plaintiff's  claim.^e  Where  the  complainant  was  the 
only  person  who  could  insist  upon  the  penalty  or  forfeiture,  and 
he  waives  it  in  his  bill,  he  might  compel  a  discovery.^'    In  certani 


Story's   Eq.    PL,    §§575-599.      Per- 
haps, also,  if  it  might  disgrace  him. 
Franco  v.  Bolton,  3  Ves.  368;  Finch 
V.    Finch,     2    Ves.     Jr.    491,    493; 
Brownsword  v.  Edwards,  2  Ves.  Jr. 
243,    245;     Northrop    v.    Hatch,    6 
Conn.   361,   363.     In  England,   also, 
relevant    questions    which    tend    to 
criminate    may    be    asked,    although 
the  party  interrogated  is  not  bound 
to   answer  the   same.      Alabaster   v. 
Harness,   70   L.   T.   375;    McCorquo- 
dale    V.    Bell    (1876),    W.    N.    39; 
Odgers    "Principles    of    Pleading," 
4th  ed.,  p.  268. 

17  F.  Speidel  Co.  v.  N.  Barstow 
Co.,  232  Fed.  617.  See  supra,  §§  15:'., 
339a. 

18  Ibid.x 

19  Harvey  v.  Morris,  Eep.  temp. 
Finch,  214;  Daniell 's  Ch.  Pr.  (2d 
Am.  ed.)  636,  637.  But  see  Pac. 
R.  of  Mo.  V.  Mo.  Pac.  By.  Co.,  Ill 
U.  S.  505,  522,  28  L.  ed.  498,  504. 

20  Story's  Eq.  PL,  §547;  Gormul- 


ly  &  Jeffery  Mfg.  Co.  v.  Bretz,  64 

Fed.  612. 

21  Greenough  v.  Gaskell,  1  Myl.  & 
K.  100;  Story's  Eq.  PL,  §547,  and 
cases  cited. 

22  Smith  v.  East  India  Co.,  1  Phil- 
lips, 50;  Atty.-Gen.  v.  London,  12 
Beav.  8;  Worthington  v.  Scribnor, 
109    Mass.    487,    493,    12    Am.    Rep. 

736. 

23  Bolton  V.  Liverpool,  1  Myl.  & 
K.  88;  Daniell's  Ch.  Pr.  (2d  Am. 
ed.)  645-648;  Cluirchward  Int. 
Steel  Co.  V.  Bethlehem  Steel  Co.,  233 
Fed.  322 ;  see  s^ipra,  §  347 ;  Wolcott 
V.  National  Electric  Signaling  Co., 
235  Fed.  224. 

24  Blast  Furnace  Appliances  Co. 
V.  ^Yort.h  Bros.  Co.,  221  Fed.  430. 

26  Daniell  "s  Ch.  Pr.   (2d  Am.  cd.) 

635,  636. 

26  Jarrard  v.  Saunders,  2  Ves.  Jr. 
4.54;  Glegg  v.  Legh,  4  Madd.  193; 
Langdell's  Eq.  PL,  §188. 

27  Mason  v.  Lake,  2  Brown,  P.  C. 


1760 


EVIDENCE 


[§348 


cases,  a  defendant  might  be  obliged  to  answer  to  a  charge  of  a 
fraud  which  might  subject  him  to  criminal  prosecution.^^  An 
English  case  held  that  a  discover}-  could  be  compelled  although 
a  defendant  might  thereby  admit  his  guilt  of  an  oflPense  against 
tlie  criminal  laws  of  a  foreign  country. ^^ 

If  the  defendant  disputes  the  plaintiff's  right  to  any  discovei-y 
he  should  make  his  objections  by  motion  if  thcA-  appear  upon  the 
face  of  the  bill  and  interrogatories;  otherwise  by  answer  and 
obtain  an  enlargement  of»his  time  to  submit  to  the  interrogatories 
until  tlie  plaintiff's  right  thereto  is  determined.^"  If  he  objects 
to  some  but  not  to  all  of  the  interrogatories  he  must  make  these 
objections  specifically  and  bring  them  up  for  argument. ^^  He 
is  not  subject  to  the  old  rule  that  if  he  answers  one  he  must 
answer  all.^^  He  cannot  object  to  answering  interrogatories 
because  the  bill  waives  an  answer  under  oath.^^  After  answering 
an  interrogator}'  he  cannot  object  thereto,^*  although  he  seeks 
by  such  objection  to  raise  a  (juestion  as  to  the  sufficiency  of  his 
answer  thereto.'^ 

An  interrogatory  must  end)race  a  single  (piestion  and  be  so 
framed  that  it  may  be  clearly  seen  what  the  party  interrogated 
is  called  u])()n  to  answer. ^^  An  interrogatory  is  not  part  of  the 
pleadings.^''' 

The  criterion  of  the  materiality  of  an  interrogatory  is  not 
whether  an  affirmative  answer  will  prove  the  bill,  but  whether 
it  will  tend  to  prove. ^*  An  interrogatory  should  not  ordinarily 
])e  in   the  language   of  a  claim  of  the  complainant's  patent,^ 


495;  Lord  Uxbridge  v.  Stavelaiul,  1 
Ves.  Sen.  56;  Atwill  v.  Ferrett,  ?, 
Blatehf.  39. 


28  Dumnier     v. 
Ves.    245,    251 ; 
§  578 ;    Daniell  's 
ed.)    631,  632. 

29  King  of  Two  Sicilies  v.  Wilcox, 
1  Simons  (N.S.),  301.  See  also 
U.  S.  V.  McRae,  L.  E.  4  Eq.  327; 
s.  c,  L.  K.  3  Ch.  App.  79. 

30  Pressed  Steel  Car  Co.  v.  Union 
Pac.  R.  Co.,  241  Fed.  964. 

31  Thid. 

32  Ibid. 

33  Hudson  v.  Wood,  119  Fed.  764, 


Chippenham,  14 
Story's  Eq.  PI., 
Ch.    Pr.    (2d    Am. 


776;  Luteu  v.  Camp,  221  Fed.  424. 
Cf.  .lolmston  v.  Forsj'th  Merc.  Co., 
127  Fed.  845,  848. 

34  Window  Glass  Mach.  Co.  v. 
Brookville  Glass  &  Title  Co.,  229 
Fed.  833. 

35  Chicago,  St.  L.  &  N.  O.  E.  Co. 
V.  Macoml),  2  Fed.  18. 

36  Kinney  v.  Eice,  238  Fed.  444; 
Eodman  Chem.  Co.  v.  E.  F.  Hough- 
ton Co.,  233  Fed.  470. 

37  Luten  v.  Camp,  221  Fed.  424. 
38Uhlmann    v.    Arnholt    &    S.    B. 

Co.,  41  Fed.  369.     See  supra.  §  174. 

39  A.    B.    Dick    Co.    v.    Underwood 

Typewriter  Co.,  235  Fed.  300;   Rod- 


34S] 


DISCI  )VEKV    IN    K^rnY 


1761 


ii(»i-  rr(|uir)'  the  dpiiiioii  dl"  ;i  i>iii-1.\-  ;is  t(t  the  constriu-tioji  of  a 
l^ateiit,*"  luiU'ss  ail  answer  to  <i  (lucstioji  of  fact  will  incidentally 
require  an  expix'ssion  of  opiiiiDii.*^      It   lias  been   liekl  tluit  the 


man   Clu'iii.   Co.    v.   E.   l-\    Hon^liton 
Co.,  L'.S3  Fed.  470. 

40  P.  M.  Co.  V.  A.j.-ix  Kail  Ainlnii- 
Co.,  216  Fed.  6:54,  dM];  A.  B.  Duk 
Co.  V.  UiKlerwood  Typowritor  Co., 
2.'5o  Fed.  oOO. 

41Batdorf    v.    Sattley   Coin    Han 
dliug  Mach.  Co.,  C.  C.  A.,  2:58  Fed. 
!)25,    926,    927.      There    tlic    follow 
iiig       interrogatories       were       held 
proper : 

"(TOO)  State  where  the  device 
is  located  upon  which  the  plaintiffs 
will  rely  in  their  ])roof  of  infrinjjc- 
nient,  and  whether  or  not  such  de- 
vice can  he  inspected  on  behalf  of 
defendant. ' ' 

"(1(11)  If  the  machine  referred 
to  ill  interrogatory  100  cannot  be 
inspected  on  behalf  of  defendant, 
describe  and  illustrate  the  device 
sufficiently  for  all  parts  thereof  to 
l:e   understood." 

"(97)  State,  :is  to  each  claun 
of  the  patents  in  suit,  what  date  of 
coinjilction  of  invention  plaintiffs 
will    rely   njion  at   tlic  trial. " ' 

The  following  interrogatories  were 
held  to  be  improper: 

' '  Point  out,  by  reference  to  thi' 
drawings  of  patent  Xo.  691,4:55, 
what  part  or  parts  of  the  structure 
illustrated  in  the  drawings  of  said 
patent  rcsi)ond  to — 

"73.  'Means  for  advancing  the 
coins  sei>aratcly, '  recited  in  claim  1, 
2,  and  8,  and  'means  for  supply- 
ing coins  separately,'  recited  in 
claims  9,  11,  and  12." 

"(98)  State,  as  to  each  of  the 
patents  in  suit,  whether  or  not  a 
device  as  shown  in  the  drawings  of 
the      patent      lias     ever     Ikhii     cun 


sti'uctcd,    an<l,    if    so,    gi\e    fhc    date 
ul    completion  of  the  ilevici-. " ' 

■•  (99)  State,  as  to  ea<di  of  the 
patents  in  suit,  whether  or  not  plain 
tiff's  have  ever  made,  or  caused  to 
be  made,  devices  of  a  different  con- 
struction from  that  shown  in  the 
jiatents,  and,  if  a  device  or  devices 
have  been  made,  illustrate  and  de- 
scribe sneh  device  or  devices,  ami 
give  tlie  date  or  dates  of  comple- 
tion of  such  device  or  devices." 

In  Luten  v.  Camp,  221  Fed.  424, 
429,  held:  That  defendant  could  be 
compelled  to  i>roduce  blue  prints 
used  in  acts  which  were  charged  to 
be  an  infringement.  (To  the  sanu; 
effect  is  Blast  Furnace  Appliance-^ 
Co.  v.  Worth  Bros.  Co.,  221  Fed. 
4:!0.)  But  that  they  could  not  be 
compelled  to  compare  these  blue 
prints  with  the  plaintiff's  plans  nor 
to  state  what  was  the  precise  show- 
ing thereof  b\-  lines,  letters,  figures 
and  characters. 

In  A.  B.  Dick  Co.  v.  Underwood 
Typewriter  Co.,  2:5.1  Fed.  .100,  :i02, 
the  following  interrogatory  was  dis 
allowed: 

"(77)  What  is  the  description 
and  commercial  designation  of  the 
filler  einjiloyed  in  the  coating  com- 
pound of  defendant's  stencil  paper 
as  illustrated  (a)  by  Schedule  1; 
(b)  by  Schedule  4;  (c)  by  Schedule 
.\,  above  referred  to;  and  from 
whom  (give  address)  did  the  defend- 
ant  obtain   till'  same  .' ' ' 

* '  This  group  is  objectionable  be- 
canse  of  the  use  of  the  word  'illus- 
trated.' "  Window  Glass  Mach.  Co. 
V.  Brookville  (ilass  &  Tile  Co..  229 
Fed.   8:5:;.      Cf.   Gennert  v.   Burke   & 


1762 


EVIDENCE 


[§348 


plaintiff  cannot  by  interrogatoiy  be  compelled  to  point  out  upon 
which  claim  of  the  patent  he  relies,  since  the  defendant's  proper 
relief  is  hj  motion.*^ 


James,  Inc.,  231  Fed.  998;  Contra, 
P.  M.  Co.  V.  Ajax  Bail  Anchor  Co., 
216  Fed.  634,  636.  But  see  Bat- 
dorf  V.  Sattley  Coin  Handling 
Mach.  Co.,  C.  C.  A.,  238  Fed.  925; 
A.  B.  Dick  Co.  v.  Underwood  Type- 
writer Co.,  235  Fed.  300,  301,  303: 
"In  Oriental  Tissue  Co.  v.  De 
Jonge  &  Co.,  218  Fed.  170,  134 
C.  C.  A.,  50,  and  in  the  later  case 
between  the  same  parties  (235  Fed. 
294),  there  was  a  sharp  controversy 
as  to  the  meaning  of  'soluble  cot- 
ton,' and  my  experience  in  that  case 
convinced  me  that,  generally  speak- 
ing, chemical  eases  cannot  be  com- 
pared in  this  regard  to  simple  me 
chanical  eases,  where,  for  instance, 
a  'steel  rod'  must  be  a  steel  rod. 

"Defendant  has  annexed  to  its 
answer  a  sheet  of  the  stencil  paper 
made  by  it,  and  that  ordinarily 
would  be  enough.  As  it  appears, 
however,  from  the  argument  of  both 
counsel  that,  because  the  sheet  is 
hygroscopic,  it  may  be  subject  to 
changes,  defendant  should  arrange 
to  give  plaintiff,  immediately  when 
manufactured,  a  sufficient  number 
of  sheets  to  enable  plaintiff's  ex- 
]ierts  to  make  a  prompt  analysis. 
If  any  practical  difficulties  in  this 
regard  further  appear,  plaintiff  may 
move  again  for  appropriate  relief 
before  or  at  the  trial. 

' '  Another  objection  to  this  class 
of  interrogatory  is  that  in  effect  it 
may  call  for  a  construction  of  the 
claims  contrary  to  the  practice  in 
this  district.    District  Court  rule  7. ' ' 

In  the  same  case  the  Court  dis- 
allowed the  following  interrogatory: 

"(1)     Did     the      defendant,     in 


this  district  and  between  June  23, 
]914,  and  January  4,  1916,  make 
or  use  or  sell  (if  yea,  which)  sten- 
cil paper  illustrated  by  the  sheet 
hereto  aimexed  and  marked  '  Sched- 
ule 1'?" 

"The  objection  is  that  the  inter- 
rogatory refers  to  stencil  paper 
'illustrated'  by  the  sheet  marked 
'  Schedule  1. '  I  think  this  objection 
is  not  captious,  because  the  subject- 
matter  of  the  specifications  and 
claims  deals  with  much  specific  de- 
tail, and  therefore  in  this  case  the 
word  'illustrated'  may  be  indefinite. 
This  group  of  interrogatories,  how- 
ever, is  practically  disposed  of  by 
the  suggested  arrangement,  supra, 
of  furnishing  plaintiff  with  fresh 
samples  of  the  alleged  infringing 
sheets. ' ' 

42  In  p.  M.  Co.  V.  Ajax  Eail 
Anchor  Co.,  216  Fed.  634,  the  court 
disallowed  the  following  interroga- 
tories: "The  second,  third,  and 
fourth  interrogatories  seek  to  have 
the  complainant  describe  that  ele- 
ment in  defendant's  device  which 
complainant  considers  to  be  the 
wedge  described  in  the  Kramer 
patent,  and  that  element  which  com- 
plainant considers  to  be  the  sup- 
porting member  described  in  said 
claims,  and  whether  the  phrase 
'other  edge  of  the  rail,'  occuring 
in  the  claims,  refers  to  the  edge 
opposite  to  that  engaged  by  the 
flange.  The  fifth  interrogatory  re- 
quires an  answer  as  to  whether 
complainant  has  manufactured  any 
devices  under  the  Kramer  patent, 
and  how  many,  and  whether  it  is 
now  making  them,  and  requiring  the 


§348] 


DISCOVERY   IX   EQUITY 


1763 


Interrogatories  must  be  relevant  \o  the  issue.*^  An  answer 
does  not  admit  the  materiality  of  the  evidence  thus  elicited.** 
An  interrogatory  will  not  be  allowed  if  its  sole  object  is  to  estab- 
lish certain  facts,  which,  if  proved,  would  not  be  relevant  evi- 
dence in  support  of  the  plaintiff's  claims*^  or  would  be  no  de- 
fense in  law  to  the  action;*^  but  interrogatories  are  not,  like 
pleadings,  confined  to  the  material  facts  on  which  the  parties 
intend  to  rely.  In  England  they  may  be  directed  to  the  evi- 
dence by  which  it  is  desired  to  establish  such  facts  at  the  trial,*''^ 


production  of  a  sample  of  such  de- 
vices, or  a  cut  or  drawing.  The 
sixth  interrogatory  inquires  whether 
the  complainant  is  licensed  under, 
or  has  any  interest  in,  various  of 
the  patents  described  in  the  cor- 
respondence above  referred  to.  The 
next  interrogatory  inquires  whether 
complainant  considers  defendant 's 
device,  to  infringe  any  patents  which 
complainant  may  own,  be  licensed 
under,  or  have  an  interest  in,  other 
than  the  three  patents  mentioned  in 
the  notice  given  by  complainant  to 
defendant,  and,  if  so,  inquiring  the 
numbers  and  dates  of  the  patents 
and  names  of  the  patentees.  The 
eighth  interrogatory  asks  whether 
complainant  contemplates  institut- 
ing other  suits  for  patent  infringe- 
ment against  defendant ;  and  the 
last  interrogatory  asks  whether  one 
of  the  letters  above  referred  to  was 
written  with  the  knowledge  and  con- 
sent of  complainant." 

"The  second,  third,  and  fourth 
interrogatories  inquire  as  to  the 
opinion  of  the  complainant  as  to 
the  construction  of  the  patent. 
This  is  a  matter  to  be  supplied  by 
expert  testimony  in  support  of  the 
contention  of  infringement,  or  the 
validity  of  the  patent,  or  both.  It 
i.s  a  matter  purely  evidentiary,  and 
one  which  within  the  English  rule, 
and   the  ])roper  construction  of  rule 


~>8  cannot  be  inquired  into.  The 
same  considerations  apply  to  inter- 
rogatories 5,  6,  and  7,  inquiring 
whether  complainant  has  manufac- 
tured devices  under  its  patent, 
whether  it  has  any  interest  in  other 
patents,  and  whether  it  considers 
defendant's  device  to  infringe  any 
other  patents.  These  questions  all 
relate  to  evidence  of  circumstances 
or  of  facts  tending  to  prove  some 
contention  of  defendant,  supposedly 
the  one  set  up  in  the  sixth  para- 
graph of  the  answer,  which  is  to 
be  struck  out.  The  eighth  and  ninth 
interrogatories,  inquiring  whether 
it  had  knowledge  of  one  of  the 
letters  pleaded  in  the  answer,  should 
lie  treated  in  the  same  way. ' ' 

43  Rogers  &  Co.  v.  Lambert  & 
Co.,  24  Q.  B.  D.  57.3. 

44  Rodman  Chemical  Co.  v.  E.  F. 
Houghton  Co.,  233  Fed.  470. 

45  Kennedy  v.  Dodson  (1895),  1 
Ch.  334.  In  England,  a  defendant 
cannot  be  asked,  "If  you  did  not 
print  the  libel,  did  McCarthy  & 
Company  or  some  other  and  wlu^t 
firm  printed  it?"  Pankhurst  v. 
Wighton  &  Co.,  2  Times  L.  R.  745. 

46  Rogers  &  Co.  v.  Lambert  & 
Co.,  24  Q.  B.  D.  573. 

47  Attorney  General  v.  Gaskill,  20 
Ch.  D.  519,  528.  To  obtain  names 
of  witnesses  for  the  interrogator, 
Hall    V.    Lycordet,    W.    N.     (1S83), 


1764 


EVIDENCE 


[§348 


and  an  interrogatory  is  proper  when  relevant  to  any  link  in  the 
chain  of  evidence  necessary  to  si>bstaiitiate  the  ease  of  the  inter- 
rogator.** It  has  been  said  that  the  interrogation  must  be  con- 
fined to  the  facts  npon  which  the  interrogator's  ease  or  defense 
is  based, *^  but  not  as  to  mere  evidence  or  facts  tending  to  prove 
the  natnre  of  the  ease  or  facts  tending  to  prove  the  facts  upon 
wliicli  the  case  or  defense  is  based. ^^ 

A  party  may  file  interrogatories  as  to  anything  which  can  be 
fairly  said  to  be  material,  to  enable  him  either  to  maintain  his 
own  case  or  to  destroy  the  case  of  his  adversary ;  ^^  but  the 
English  rule  is  that  he  is  not  entitled  to  obtain  more  than  an 
outline  of  his  opponent's  case.  He  can  there  compel  his  adver- 
sary to  disclose  the  facts  on  which  the  latter  intends  to  rely, 
but  not  the  evidence  by  which  his  adversary  proposes  to  prove 
those  facts. 52  "Even  in  interrogating  as  to  your  own  case  the 
questions  asked  must  not  be  'fishing';  that  is  they  must  refer 
to  some  definite  and  existing  state  of  cireumstanees,  not  be  put 
merel}^  in  the  hopes  of  discovering  something  which  may  help 
the  iiarty  interrogating  to  make  out  some  case.     They  must  be 


175;  names  of  jiersons  sueh  as  in- 
cumbrancers in  order  to  make  them 
parties,  T^nion  Bank  v.  Manby,  13 
Ch.  D.  2:59.  The  security  held  by 
prior  iiicumlirancers.  West  of  Eng- 
land Bank  v.  Nicholls,  6  Ch.  D.  613. 
Profits  on  a  business  where  it  is 
admitted  that  trust  funds  were  em- 
ployed in  the  same.  Elkins  v. 
Clarke,  21  W.  E.  447;  Schrieber  v. 
Heymann,  63  L.  J.  Q.  B.  749.  But 
see  Hemery  v.  Worwsom,  26  Lolic. 
.T.  26. 

48  Jones  v.  Richards,  15  Q.  B.  D. 
439,  holding  that,  when  defendant 
has  denied  that  he  wrote  a  mate- 
rial document,  he  may  be  asked 
whether  other  documents  produced 
are  not  in  his  handwriting,  although 
the  latter  documents  have  no  rele- 
vancy except  for  use  in  comparison 
of  handwriting. 

49Luten  v.  Camp,  221  Fed.  424, 
428. 


50  P.  M.  Co.  V.  Ajax  Rail  Anchor 
Co.,  216  Fed.  234,  236;  Luten  v. 
Camp,  221  Fed.  424,  428.  In  Du 
Pont  v.  Du  Pont,  234  Fed.  459, 
a  stockliolders'  suit  against  oflRcers 
and  directors,  interrogatories  con- 
cerning the  details  of  a  multitude 
of  business  transactions  involving 
other  companies  with  no  relation  to 
the  suit  were  disallowed  where  the 
ultimate  material  facts  could  be  as- 
certained from  the  books.  See  Wol- 
cott  V.  National  Electric  Signaling 
Co.,  235  Fed.  224;  J.  H.  Day  Co. 
V.  Mountain  City  Mills  Co.,  225  Fed. 
622. 

51  Hennessy  v.  Wright,  No.  2,  24 
Q.  B.  D.  447ii,  per  Lord  Esher, 
M.  R. 

52  Odgers  "Principles  of  Plead- 
ings," 4th  ed.,  pp.  265,  266;  citing 
Eade  v.  Jacobs,  3  Ex.  D.  335;  Johns 
v.  James,   13   Cli.  D.   370. 


5;  ;j48j  I)I8c•ovKR^■  IN  Ki^i  iTV  1765 

confined  to  matters  whieli  there  is  good  ground  for  believing  to 
have  occurred."^'  In  England,  questions  "to  credit"  or  inter- 
rogatories put  solely  to  test  the  eredibilitj-^  of  a  party,  are  not 
allowed  before  trial,  although  they  then  may  be  asked  upon 
ei-oss-examination.^* 

In  the  Queens  Bench  Division  of  England,  interrogatories  are 
not  allowed  as  to  the  contents  of  written  documents,  unless  it  is 
admitted  that  tlie  documents  have  been  lost  or  destroyed.^^ 
It  has  been  so  held  by  a  Federal  court.*® 

The  right  to  discovery  of  matters  relevant  to  the  proof  of  the 
interrogator's  case  is  not  affected  by  the  fact  that  they  will  also 
show  the  defense  or  case  of  the  other  side.*'  The  adversary 
cannot  by  interrogation  be  compelled  to  disclose  the  names  of 
his  witnesses ;  **  nor  the  names  of  experts  or  others  from  w^hom 
the  information  for  his  answers  is  obtained.*^  Interrogatories 
are  not  allowed  when  their  object  is  to  contradict  a  written  docu- 
ment ;  ®®  but  the  interrogated  party  may  be  asked  what  has 
become  of  a  particular  document  and  the  interrogatory  con- 
tinued, "If  you  state  that  such  document  is  lost  or  destroyed, 
set  out  the  contents  of  the  same  to  the  best  of  your  recollection 
and  belief.  If  you  have  a  copy,  make  it  an  exhibit  to  your 
answer.^i 

63  0dgers  "Principles  of  Plead-  writing,  its  date  and  the  oorrespond- 
ings,"  4th  ed.,  p.  267;  citing  Gour-  ence  relating  thereto;  but  not  the 
ley  V.  Plimsoll,  L.  R.  H.  C.  P.  362;  date  of  the  notice  to  the  inventor 
Hennessey  v.  Wright,  No.  2,  24  Q.  of  the  beginning  of  the  construc- 
B.  D.  448.  tion,  the  completion  and  the  use  of 

64  Labouchere  v.  Shaw,  41  J.  P.  the  infringing  article,  since  that  was 
788,  per  Cockburn,  C.  J.;  Allhiisen  merely  evidentiary  on  the  issue  of 
V.  Labouchere,  3  Q.  B.  D.  654.  the  existence  of  the  license. 

55  0dgers    "Principles    of    Plead-  57  Kinney  v.  Rice,  238  Fed.  444; 

ings,"   4th    edition,   p.    267;    citing  Blast    Furnace    Appliances    Co.     v. 

Steam  v.  Tabor,  31  L.  T.  444;  Fitz-  Worth  Bros.  Co.,  231  Fed.  420. 

gibbon   v.   Greer   Parish  R.   9   C.   L.  58  Kinney  v.  Rice.   238  Fed.   444; 

294.  F.   Speidel   Co.    v.    N.   Barstow   Co.. 

56Luten   v.   Camp,   221   Fed.   424,  232  Fed.   617;    Wolcott   v.   National 

429.  In   Blast  Furnace   Appliances  Electric     Signaling    Co.,     235     Fed. 
Co.    V.    Worth   Bros.    Co.,    221    Fed.  224. 

430,  wlierc  a  license  was  claimed  by  69  A.    B.    Dick   Co.   v.    Underwood 
defendant,   plaintiff  was   allowed   to  Typewriter  Co.,  235  Fed.  300. 
inquire   as  to  the   date   of   the   acts  60  Moor  v.  Roberts,  3  C.  B.  N.  S. 
which  were  charged  as  an   infringe-  671. 

nient,    whether    the    license    was    in  61  Odgers    ' '  Principles    of    Plead- 

Fed.  Prac.  Vol.  II— Jl 


1766 


EVIDENCE 


[§349 


It  has  been  said  that  conditions  may  be  imposed  upon  the 
requirement  of  an  answer  to  an  interrogatory.^^  jj^  one  case  the 
court  imposed  the  condition  that  publication  of  the  answers  be 
not  made  until  after  both  parties  had  answered  the  interroga- 
tories respectively  put  to  them.^^ 

An  answer  to  an  interrogatory  is  insufficient  when  it  is  so 
mixed  with  matter  irrelevant  thereto  as  to  prevent  the  interroga- 
tor from  using  the  same  apart  therefrom.^*  A  person  not  a 
party  to  a  suit  cannot  be  compelled  to  answer  an  interrogatory 
attached  to  the  bill.^^ 

§349.  Inspection  in  equity.  According  to  the  old  English 
practice,  the  adverse  party  had  no  right,  in  the  absence  of  special 
circumstances,  to  compel  before  the  hearing  the  production  of 
any  exhibit,  however  it  had  been  proved,  except,  perhaps,  when 
the  deposition  proving  it  had  set  it  out  verhatim;  nor  even  to 
inspect  it,  it  being  considered  that  a  party  should  not  before  the 
hearing  see  the  strength  of  the  cause,  or  any  deed,  to  pick  holes 
in  it.i  The  Equity  Rules  now  provide :  that  the  court  or  judge 
may  upon  reasonable  notice  make  all  such  orders  as  may  be 
appropriate  to  effect  the  inspection  or  production  of  documents 
in  the  possession  of  either  party  and  containing  evidence 
material  to  the  cause  of  action  or  defense  of  his  adversary." 


ings,"  4th  ed.,  p.  267,  268;  citing 
Wolverhampton  New  Water  Works 
Co.  V.  Hawksf ord,  5  C.  B.  N.  S.  703 ; 
Dalrymple  v.  Leslie,  8  Q.  B.  5. 

62Batdorf  v.  Sattley  Coin  Han- 
dling Machine  Co.,  C.  C.  A.,  238 
Fed.  925. 

eSBatdorf  v.  Sattley  Coin  Han- 
dling Mach.  Co.,  238  Fed.  925,  927. 
"If  defendant  interrogates  plain- 
tiffs regarding  facts  or  documents 
tending  to  disclose  the  dates  of  the 
making  and  completion  of  the  in- 
vention of  the  patent  suit,  and 
plaintiffs  interrogate  defendant  re- 
garding facts  or  documents  tend- 
ing to  disclose  the  dates  of  any 
prior  knowledge,  prior  use,  or  prior 
invention  defense,  it  v^ould  seem 
proper  procedure  for  this  court, 
upon    ex    parte    request,    to    require 


both  the  plaintiffs  and  defendant  to 
file  the  answers  to  such  interroga- 
tories in  sealed  envelopes  with  the 
clerk  of  this  court  on  a  day  speci- 
fied by  the  court,  the  sealed  en- 
velopes containing  the  answers  to 
the  interrogatories  to  be  opened  by 
the  clerk  the  day  following  the  date 
set  by  the  court  for  the  filing  there- 
of. And  it  is  here  so  ordered  and 
made  a  condition  of  the  granting  of 
defendant's  prayer  regarding  inter- 
rogatory 97. ' ' 

64Lyell  v.  Kennedy,  27  Ch.  D.  1, 
28. 

65  First  State  Bank  v.  Spencer, 
219  Fed.  505. 

§  349.  1  Davers  v.  Davers,  2  P. 
Wms.   410. 

2  Eq.  Rule  58,  quoted  supra,  §  348. 


5  349] 


INSPECTION  IN  EQUITY 


1707 


A  party  is  not  entitled  to  a  general  inspeetiun  of  books  and  pa- 
pers in  his  adversary's  possession.  In  the  case  of  an  inspection 
of  books,  the  usual  practice  is  to  have  all  except  the  pages  con- 
taining the  material  matter  sealed  up,  and  to  have  the  inspec- 
tion take  place  under  the  supervision  of  a  master  or  commis- 
sioner,^ or  the  clerk,*  wiili  the  riglit  in  the  latter  case  to  a  sum- 
mary application  to  the  judge  for  a  review  of  the  clerk's  decision 
after  both  sides  had  l)een  ail'orded  a  hearing.^  Previously  to  the 
Equity  Rules  of  1912,  the  section  of  the  llevised  Statutes^ 
quoted  in  the  following  section  has  been  followed  in  equity.' 

In  England,  it  has  been  said  that  there  are  seven  grounds  upon 
which  production  of  documents  may  be  lawfully  refused :  First, 
documents  of  title  need  not  be  produced  when  they  relate  solely 
to  a  party's  own  title  to  real  property,  corporeal  or  incorporeal, 
and  contain  nothing  which  tends  to  establisli  the  title  of  his  oji- 
ponent.*  AVhere,  however,  the  documents  are  material  to  his 
opponent's  title,  they  must  be  produced,  although  the  party 
against  whom  the  order  is  made  is  a  purchaser  for  value  without 


8  Eobliins  v.  Denis,  1  Blatchf.  238, 
243. 

4  Jacques  v.  Collins,  2  Blatchf.  23. 

6  Ibid. 

6  U.  S.  E.  S.,   §  724. 

7Coit  V.  N.  C.  Gold  Am.  Co.,  9 
Fed.  .577.  Cf.  U.  S.  E.  S.,  §724; 
Kirkpatrick  v.  Pope  Mfg.  Co.,  61 
Fed.  46.  But  see  Guyot  v.  Hilton, 
32  Fed.  743;  Colgate  v.  Compagnic 
Francaise,  23  Fed.  82;  Eyder  v. 
Bateman,  93  Fed.  31.  Under  the 
former  practice  it  was  held:  that 
upon  the  inspection  of  books  or 
documents,  the  order  might  provide 
that  the  originals  be  filed  with  tlu- 
clerk  or  that  copies  thereof  be 
served  upon  the  parties  seeking 
them  (Sampson  v.  Johnson,  2 
Craneh  C.  C.  107;  Bank  of  U.  S. 
V.  Kurtz,  2  Craneh  C.  C.  342);  that 
a  special  master  might  be  appointed 
to  supervise  the  inspection  (Mot- 
ley, Green  &  Co.  v.  Detroit  Steel 
&    Spring    Co.,    174    Fed.    734);    or 


that  the  clerk  might  supervise  the 
inspection,  with  the  right  of  both 
parties  to  a  summary  application 
to  the  judge,  at  chambers,  for 
a  review  of  his  decision  after  a 
hearing  (Jacques  v.  Collins,  2 
Blatchf.  23)  ;  that,  in  the  case  of 
books,  only  the  entries  which  were 
relevant  (Jacques  v.  Collins,  2 
Blatchf.  23 ;  Motley,  Green  &  Co.  v. 
Detroit  Steel  &  Spring  Co.,  174  Fed. 
734)  ;  and  that  photographic  copies 
of  letters  might  be  made  under 
proper  restrictions  (Newcomb  v. 
Burbank,  159  Fed.  568).  Inspec- 
tion of  entries  containing  the  name 
of  a  party 's  customers  will  rarely 
be  allowed,  unless  they  are  clearly 
relevant.  Motley,  Green  &  Co.  v. 
Detroit  Steel  &  Spring  Co.,  174  Fed. 
734;  Eoberts  v.  Walley,  14  Fed.  167. 
8  Egremont  Burial  Board  v. 
Egremont  Iron  Ore  Co.,  14  Ch.  D. 
158. 


1768 


EVIDENCE 


[§350 


notice.^  Second,  eommunieulions  between  solicitor  and  client. -^^ 
Third,  documents  prepared  solely  for  the  purpose  of  assisting  the 
opponent  or  his  legal  advisers  in  any  actual  or  anticipated  liti- 
gation.^^  Fourth,  incriminating  documents. ^^  But.  in  England, 
the  objection  to  such  must  be  made  under  oath,  in  clear  and 
express  terms,  not  upon  information  and  belief. ^^  Fifth,  docu- 
ments that  tend  to  prove  a  forfeiture.^*  Sixth,  documents  which 
are  the  property  of  a  third  person  and  held  by  the  interrogated 
as  agent  or  trustee.^^  But  this  privilege  does  not  extend  to  pri- 
vate letters  written  in  contidence  by  a  stranger  who  forbids  their 
production. 1^  Seventh,  State  documents,  the  production  of  which 
is  contrary  to  public  policy.^''' 

§  350.  Inspection  at  ccmmon  law.  The  Revised  Statutes 
provide :  "In  the  trial  of  actions  at  law,  the  courts  of  the  United 
States  may,  on  motion  and  due  notice  thereof,  require  the  par- 
ties to  produce  books  or  writings  in  their  possession  or  power, 
which  contain  evidence  pertinent  to  the  issue,  in  cases  and 
under  circumstances  where  they  might  be  compelled  to  produce 
the  same  by  the  ordinary  rules  of  proceeding  in  chancery.  If  a 
plaintiff  fails  to  comply  with  such  order,  the  court  may,  on  mo- 
tion, give  the  like  judgment  for  the  defendant  as  in  cases  of  non- 
suit, and  if  a  defendant  fails  to  comply  with  such  order,  the 
court  may,  on  motion,  give  judgment  against  him  by  default.''  ^ 


9  Ind.  Coope  &  Co.  v.  Eniniersoii, 
12   App.   Cas.   300. 

lOLowden  v.  Blakey,  2;'.  Q.  B.  D. 
.332;  Minet  v.  Morgan,  L.  E.  H.  Ch. 
361;  Calecraft  v.  Guest  (1898),  1  Q. 
B.  759;  Goldstone  v.  Williams,  Dea- 
con &  Co.  (1899),  1  Ch.  47. 

llWalsham  v.  Stainton,  2  H.  & 
M.  1;  12  W.  E.  199;  Nicholl  v. 
Jones,  2  H.  &  M.  588;  13  W.  E. 
461;  M'Corquodale  v.  Bell,  1  C.  P. 
D.  471;  45  L.  J.  C.  P.  329;  South- 
wark  and  Vauxhall  Water  Co.  v. 
Quick,  3  Q.  B.  D.  315;  47  L.  J.  Q. 
B.  258;  Friend  v.  London,  Chatham 
and  Dover  Ey.  Co.,  2  Ex.  D.  437; 
46  L.  .J.  Ex.  696. 

12  Spukcs  V.  (!)'us\  (.'iirr  IJutrl  Co., 
2  Q.  B.  D.  130. 


13  Roe  V.  New  York  Press,  .75  L. 
T.  J.  31. 

14  Earl  of  Mexliorough  v.  Whit- 
wood  (1897),  2  Q.  B.  111.  Contra. 
Seaward  v.  Denniiigton,  44  W.  E.  696. 

15  Proctor  v.  Smiles,  2  Times  L. 
E.  474;  Ward  v.  Marshall,  3  Times 
L.  E.  578;  Odgers  "Principles  of 
Pleading,"  4th  ed.,  p.  258. 

16  Hopkinson  v.  Lord  Biirghley, 
L.  E.  2  Ch.  447;  Odgers  "Prin- 
ciples of  Pleading,"  4th  ed.,  p.  258. 
See  M'Corquodale  v.  Bell,  1  C.  P. 
D.  471. 

IVBeatson  v.  Skene,  5  IT.  &  N. 
838.     See  §  332,  svpra. 

§  350.  1 U.  S.  B.  S.,  §  7^4,  3 
Fed.  St.  Ann.  2,  Pierce  Fed.  Code, 
§  7360. 


§350] 


INSPECTION   AT  COMMON    I.AW 


1769 


The  Supreme  Court  of  the  United  States,  overruling  a  number  of 
eases  in  the  lower  courts  to  the  contrary,^  has  held  that  this  stat- 
ute does  not  authorize  compulsion  of  the  production  of  books 
and  papers  before  trial,^  the  court  saying  that  a  bill  of  discov- 
ery is  the  proper  remedy  if  the  parties  desire  inspection  in  order 
to  prepare  for  trial.* 

It  has  been  held  tliat  such  an  order  will  not  be  granted  when 
the  production  of  the  papers  can  be  compelled  by  a  sul)pipna 
drives  tecum  which  has  been  served.^  Where  a  deposition  is  prop- 
erly taken  under  the  Revised  Statutes  before  trial  the  production 
of  books,  papers  and  other  documents  can  then  undoubtedly  be 
compelled  by  a  suhpcena  duces  tecum. ^  In  a  recent  case  an  order 
was  affirmed  which  upon  a  petition  clearly  specifying  what  was 
wished  and  making  a  sufficient  showing  of  their  materiality  com- 
pelled the  production  of  books  and  papers  upon  the  trials 

It  was  previously  held  that  the  pendency  of  a  bill  of  discovery 
Avas  not  a  bar  to  such  a  motion  in  an  action  at  common  law.^  and 
that  the  motion  must  be  made  before  the  trial.^  The  statute  has 
been  enforced  in  an  action  to  recover  treble  damages  under  the 
Anti-Trust  Act.^"     In  an  action  to  recover  a  penalty,  wliether 


2  Exchange  Nat.  Bank  v.  "Wichita 
Cattle    Co.,    61    Fed.    190;     Central 
Nat.   Bank  v.   Tayloe,  2   Cranch,  C. 
C.     427;      Jacques     v.      Collins,     2 
Blatchf.  23;  Gregory  v.  Chicago,  M. 
&  St.  P.  R.  Co.,  10  Fed.  529 ;  Lueker 
V.  Phoenix  Assur.   Co.,   67   Fed.   18; 
Victor  G.  Bloede  Co.  v.  Joseph  Ban- 
croft &  Sons,  98  Fed.  175;  Cameron 
Lumber  Co.  v.  Droney,  132  Fed.  304. 
Contra,    Merchants'    Nat.    Bank    v. 
State  Nat.  Bank,  3  Cliff.  201 ;  lasigi 
V.    Brown,   1    Curt.   401;    Triplott    v. 
Bank,  3  Cranch,  C.  C.  646;   Cassatt 
V.  Mitchell  Coal  &  Coke  Co.,  C.  C. 
A.,  150  Fed.  32;  reversed  for  want 
of  jurisdiction  of  the  writ  of  error, 
Webster    Coal    &    Coke    Co.    v.    Cas- 
satt,   207    U.    S.    181.      Sec    Bas    v. 
Steele,  3  Wash.  C.  C.  381,  Fed.  Cas. 
No.     1,088;     Dunham     v.     T^iley,     4 
Wash.     C.    C.     126,    Fed.    Cas.    No. 
4,155. 


3  Carpenter  v.  Winn,  221  V.  S. 
533,  55  L.  ed.  842;  reversing  C.  C. 
A.,  165  Fed.  636. 

4  Ibid.,  221  U.  S.  533,  540,  55  L. 
ed.  842,  845.     See  supra,  §  347. 

6  Edison  El.  L.  Co.  v.  U.  S.  El. 
L.  Co.,  44  Fed.  294,  300. 

6  Am.  Lithographic  Co.  v.  Werck- 
meister,  C.  C.  A.,  Nov.  16,  1908,  165 
Fed.  426.     See  supra.  S  341. 

7  United  Mine  Workers  of  Amer- 
ica V.  Cornado  Coal  Co.,  C.  C.  A., 
258  Fed.  829,  834. 

8  lasigi  V.  Brown,  1  Curt.  4i>l, 
Fed.  Cas.  No.  6,993. 

9Geyger  v.  Geyger,  2  Dall.  332, 
1  L.  ed.  403;  Bank  of  V.  S.  v. 
Kurtz,  2  Cranch,  C.  C.  342. 

10  Am.  Banana  Co.  v.  U.  S.,  153 
Fed.  943. 


1770 


EVIDENCE 


[§  350a 


brought  by  a  private  individual  or  by  the  United  States,  and  in 
a  proceeding  to  enforce  a  forfeiture  of  property,  the  defendant 
or  owner  of  the  property  seized  cannot  be  compelled  to  produce 
its  books  or  papers  or  other  articles  of  personal  property  for  the 
inspection  of  the  opposite  part}^,  and  should  such  an  inspection 
be  compelled,  the  judgment  may  be  reversed  upon  that  ground 
alone. ^^  It  has  been  said  that,  as  regards  inspection  at  common 
law,  the  State  practice  may  now  be  followed. ^^ 

§  350a.  Testimony  taken  in  another  suit.  Dejiositions,  or 
testimonj-  otherwise  taken,  in  a  former  suit  between  the  same 
parties,  if  relevant  and  material  may  be  admitted  in  evidence  ^ 
unless  it  clearly  appears  that  there  was  no  adequate  cross  exami- 
nation upon  an  issue  not  raised  in  the  former  suit.^  The  deposi- 
tion of  a  witness  who  has  since  died  taken  in  a  suit  between 
strangers  if  tending  to  prove  ancient  possession  of  land,  is  com- 
petent evidence  ^  but  the  deposition  of  a  public  officer  who  has 
since  died  concerning  the  destruction  of  public  records  when 
taken  in  an  action  between  strangers  is  inadmissil)le  since  the 
destruction  might  be  shown  by  the  man  in  office  at  the  time  of 
the  trial.*  In  some  cases  affidavits,^  depositions,^  and  evidence 
of  oral  testimony  '  offered  by  a  party  in  another  suit  have  been 
admitted  in  evidence  against  him  although  there  was  no  privity 


11  Johnson  v.  Donaldson,  18 
Blatehf.  287;  Boyd  v.  U.  S.,  116  U. 
S.  616,  29  L.  ed.  746.  See  U.  S.  v. 
Denicke,  35  Fed.  407,  410. 

12  Victor  G.  Bloede  Co.  v.  Joseph 
Bancroft  &  Sons  Co.,  98  Fed.  175; 
Filscole  V.  Lancaster,  70  Fed.  337; 
Gray  v.  Schneider,  119  Fed.  474. 
Contra,  Lucker  v.  Phcenix  Assur. 
Co.,  67  Fed.  18;  Schatz  v.  Winton 
Motor  Carriage  Co.,  197  Fed.  777; 
General  Film  Co.  v.  Sampliner,  C. 
C.  A.,  232  Fed.  95.  See  infra, 
§  359. 

§  350a.  1  Young  v.  J.  Samuels  & 
Bro.,  232  Fed.  784. 

2  See  Virginia  &  West  Virginia 
Coal  Co.  V.  Charles,  C.  C.  A.,  251 
Fed.  83. 


3  Virginia  &  West  Virginia  Coal 
Co.  V.  Charles,  C.  C.  A.,  251  Fed. 
83. 

4  Virginia  &  West  Virginia  Coal 
Co.  V.  Charles,  C.  C.  A.,  251  Fed. 
83. 

5  Simon  v.  Etgen,  213  N.  Y.  589, 
598;  Pritchard  v.  Bagshawe,  11  C. 
B.  4.59,  462. 

6  But  see  Wigmore  on  Evidence, 
§  1075,  and  cases  cited. 

7  Becker  v.  Philadelphia,  217  Pa. 
344,  347,  66  Atl.  564;  Bageard  v. 
Consol.  Tea  Co.,  64  N.  J.  Law,  316; 
Livingston  v.  Colpiss,  4  N.  W.  Terr, 
441,  442,  Contra,  Wilkins  v.  Stidgen, 
22  Cal.  231,  236;  Patly  v.  Salem  F. 
Co.,  53  Oregon  350,  96  Pac.  1106. 


§351] 


TRRTnroXV   TAKKX  BEFORE   ISSUE 


1771 


between  the  parties.*  A  party's  own  affidavit,'  deposition  i**  or 
oral  testimony  ^^  or  admission  ^^  in  ^  former  suit  irrespective  of 
privity  is  always  competent  evidence  against  him  as  an  admis- 
sion. Otherwise  depositions  or  testimony  taken  upon  a  trial  to 
which  the  person  against  whom  it  was  offered  was  not  a  party 
are  incompetent.^^ 

§  351.  Testimony  taken  before  a  cause  is  at  issue.  Testimony' 
for  use  in  a  court  of  hiw  or  equity  of  tiie  United  States  maj'  be 
taken  either  before  or  after  it  is  at  issue.  Testimony  taken  be- 
fore  a  cause  is  at  issue  maj^  be  taken  either  before  or  after  it  has 
begun.  "Any  court  of  the  United  States  may,  in  its  discretion, 
admit  in  evidence  in  any  clause  before  it  any  deposition  taken  in 
perpetiiani  rei  memoriam,  which  would  be  so  admissible  in  a 
court  of  the  State  wherein  such  cause  is  pending  according  to 
the  laws  thereof."^  Evidence  taken  by  means  of  a  bill  to  per- 
petuate testimony  may  also  be  admitted  in  a  subsequent  suit  in 
equity.^  The  Equity  Rules  autliorize  depositions  to  be  taken,  by 
leave  of  the  court,  "when  allowed  by  statute,  or  for  good  and 
exceptional  cause  for  departing  from  the  general  rule,  to  be 
shown  by  affidavit."  ^  Such  testimony  is  then  taken  in  the  same 
manner  as  testimony  taken  after  issue  has  been  joined. 


SHallctt  V.  Walker,  1  Ala.  585, 
588;  Gardner  v.  Moult,  10  A.  &  E. 
464;  Cole  v.  Hadley,  11  A.  &  E. 
807;  Boileau  v.  Rutlin,  2  Ex.  Eq. 
265,  280;  Richards  v.  Morgan,  10 
Jurist,  N.  S.  559,  4  B.  &  S.  641; 
Evans  v.  Merthyr  Tydfil,  1  Ch.  241, 
250.  Cf.  Simon  v.  Etgen,  213  N.  Y. 
589,  598.  See  Wigmore  on  Evi- 
dence, §  1075,  and  eases  cited. 

9  Simon  v.  Etgen,  213  N.  Y.  589, 
598;  State  v.  Jones,  29  S.  C.  201; 
Wigmore  on  Evidence,  §  1040. 

10  People  V,  Devine,  44  Cal.  458; 
People  V.  Bushton,  80  Cal.  160,  161, 
22  Pac.  127;  Southern  Kansas  R. 
R.  Co.  V.  Painter,  53  Kansas  413, 
418,  36  Pac.  731. 

n  State  V.  .Tones,  29  S.  C.  201, 
228,  7  S.  E.  296;  Lewis  v.  State, 
91  Georgia  158,  170,  16  S.  E.  986; 
Wigmore  on  Evidence,  §  1040. 


12  Supra,  §§330,  331. 

13  Anderson  v.  Holtberg,  C.  C.  A., 
247  Fed.  273;  Virginia  &  West  Vir- 
ginia Coal  Co.  V.  Charles,  C.  C.  A., 
2.")!  Fed.  83.     See  ^tpra,  §  332. 

§351.  lU.  S.  R.  S.,  §867; 
Brown  v.  Worster,  113  Fed.  20.  For 
a  case  where  the  testimony  of  a 
man  injured  by  an  accident  was 
taken  for  use  in  a  contem])lated  ac- 
tion on  behalf  of  his  family  to  re- 
cover for  his  death,  see  Ohio  Copper 
Min.  Co.  v.  Hutchings,  C.  C.  A., 
172  Fed.  201. 

2  N.  Y.  &  B.  C.  P.  Co.  v.  N.  Y.  C. 
P.  Co.,  9  Fed.  578. 

3  Eq.  Rule  47,  quoted  infra,  §  352. 
See  Eq.  Rule  70  of  1842.  The  ac- 
tion of  an  examiner  in  adjourning 
the  hearing  after  a  witness  is  ten- 
dered for  cross-examination  is  final, 
and    if   the   party   who    oflFered   the 


1772 


EVIDENCE 


[§352 


§352.  Testimony  taken  within  the  jurisdiction  of  the  court 
after  a  cause  is  at  issue.  Testimony  taken  after  a  cause  is  at 
issue  is  taken  differently  when  taken  within,  than  when  taken 
without,  the  jurisdiction  of  the  court.  The  Equity  Rules  of  1912 
make  a  radical  innovation  in  the  pre-existing  practice. 

"In  all  trials  in  equity  the  testimony  of  witnesses  shall  be 
taken  orally  in  open  court,  except  as  otherwise  provided  by 
statute  or  these  rules.  The  court  shall  pass  upon  the  admissibility 
of  aU  evidence  offered  as  in  actions  at  law.  When  evidence  is  of- 
fered and  excluded,  and  the  party  against  whom  the  ruling  is 
made  excepts  thereto  at  the  time,  the  court  shall  take  and  report 
so  much  thereof,  or  make  such  a  statement  respecting  it,  as  will 
clearly  show  the  character  of  the  evidence,  the  form  in  whieh  it 
was  offered,  the  objection  made,  the  ruling,  and  the  exception.  If 
the  appellate  court  shall  be  of  opinion  that  the  evidence  should 
have  been  admitted,  it  shall  not  reverse  the  decree  unless  it  be 
clearly  of  opinion  that  material  prejudice  will  result  from  an 
affirmance,  in  which  event  it  shall  direct  such  further  steps  as 
justice  ma}^  require."  ^ 

"The  court,  upon  application  of  either  party,  when  allowed  by 
statute,  or  for  good  and  exceptional  cause  for  departing  from  the 
general  rule,  to  be  shown  by  affidavit,  may  permit  the  deposi- 
tion of  named  witnesses,  to  be  used  before  the  court  or  upon  a 
reference  to  a  master,  to  be  taken  before  an  examiner  or  other 
named  officer,  upon  the  notice  and  terms  specified  in  the  order. 


witness  refuses  to  produce  him  for 
cross-examination  his  testimony  in 
cliief  will  be  suppressed.  Shapleigh 
V.  Chester  El.  L.  &  P.  Co.,  47  Fed. 
848.  The  court  may,  after  a  depo- 
sition has  been  concluded,  allow  fur- 
ther cross-examination.  La  Nor- 
mandie,  C.  C.  A.,  58  Fed.  427;  s.  c, 
40  Fed.  590.  For  a  case  where  a 
deposition  was  admitted  when  the 
v.itness  had  died  before  his  cross- 
examination,  whieh  had  been  ad- 
journed at  the  request  of  the  cross- 
examiner,  see  Celluloid  Mfg.  Co.  v. 
Arlington  Mfg.  Co.,  47  Fe,d.  4.  For 
a  case  where  a  deposition  was  taken 
by    consent   in   the    absence    of   the 


examiner,  and  a  dispute  arose,  see 
Ballard  v.  McCluskey,  52  Fed.  677. 
It  has  been  held  that  when  the  par- 
ties stipulate  that  testimony  may 
be  taken  before  any  oflScer  or  magis- 
trate qualified  to  administer  oaths 
without  special  appointment  by  the 
court  as  an  examiner,  the  deposi- 
tion thus  taken  must  be  filed  on  rec- 
ord, as  required  by  Equity  Eule  67, 
in  eases  where  an  examiner  is  regu- 
larly appointed;  and  the  party  in 
whose  behalf  the  testimony  was 
taken  has  no  right  to  suppress  it. 
T.  L.  Mott  Iron  Works  v.  Standard 
Mfg.  Co.,  C.  C.  A.,  48  Fed.  345. 
§  352.     1  Eq.  Eule  46. 


^  3o2 1 


TESTIMONY  TAKEN   AFTER  ISSUE 


1773 


All  dei)ositioiis  taken  under  a  statute,  or  under  any  sueli  oidi-r 
of  the  court,  shall  be  taken  and  filed  as  follows,  unless  otherwise 
ordered  by  the  court  or  judge  for  good  cause  shown :  Those  of 
the  plaintiff  within  sixty  days  from  the  time  the  cause  is  at 
issue;  those  of  the  defendant  within  thirty  days  from  the  expira- 
tion of  the  time  for  the  tiling  of  plaintiff's  depositions;  and  re- 
hutting  depositions  by  either  party  within  twenty  days  after  the 
time  for  taking  original  depositions  expires. "^  This  rule  does 
not  limit  the  power  of  the  court  by  order  to  peiinit  the  taking  of 
depositions  at  any  time  ^  even  after  the  close  of  the  hearing.* 
The  time  may  be  extended  by  consent.^ 

It  has  been  doubted  whether  the  order  can  be  made  nunc  pro 
tunc  after  the  depositions  have  been  taken.^  Depositions  taken 
after  the  time  has  expired  will  be  suppressed.'  The  probability 
that  the  trial  will  occupy  several  days  was  held  not  to  be  a  suffi- 
cient ground  for  authorizing  the  taking  of  depositions  before 
an  examiner.'  Whether  this  time  limit  applies  to  depositions 
de  bene  esse  taken  under  the  Revised  Statutes  »  has  been  the  sub- 
ject of  conflicting  decisions.^" 

The  court  when  granting  leave  to  take  a  deposition  may  limit 
the  scope  of  the  inquiry  to  a  particular  matter." 

Permission  may  be  granted  before  a  case  is  upon  the  trial 

calendar.^^ 

"In  a  case  involving  the  validity  or  scope  of  a  patent  or  trade- 
mark, the  district  court  may,  upon  petition,  order  that  the  tes- 
timony in  chief  of  expert  witnesses,  whose  testimony  is  directed 


2Eq.  Eule  47. 

3U.  S.  Gypsum  Co.  v.  Mackey 
Wall  Plaster  Co.,  C.  C.  A.,  252  Fed. 
357. 

4U.  S.  Gypsum  Co.  v.  Mackey 
Wall  Plaster  Co.,  252  Fed.  397.  See 
American  Caramel  Co.  v.  White,  C. 
C.  A.,  234  Fed.  328. 

SFortney  v.  Carter,  C.  C.  A.,  203 
Fed.  454. 

6  Victor  Talking  Mach.  Co.  v. 
Scnora  Phonograph  Corp.,  221  Fed. 

677. 

7  Victor  Talking  Mach.  Co.  v. 
Sonora  Phonograph  Corp.,  221  Fed. 
fi77. 


8  North  V.  Herrick,  203  Fed.  591. 

9  Infra,  §354. 

10  It  has  been  held  that  it  does 
jiot  in  Iowa  Washing  Mach.  Co.  v. 
Montgomery  Ward  &  Co.,  227  Fo.l. 
1004  (S.  D.  N.  Y.).  Contra.  Block 
V.  Arrowsmith  Mfg.  Co..  243  Fed. 
775  (D.  N.  J.);  Audiffren  Refrig- 
erating M.  Co.  V.  General  El.  Co., 
245  Fed.  783  (D.  N.  J.). 

11  Norma  Min.  Co.  v.  Mackay,  C. 
C.  A.,  241  Fed.  640. 

18  United  Lace  &  Braid  Mfg.  Co. 
• .  Bsrthels  Mfg.  Co..  217  Fed.  175. 


1774 


EVIDENCE 


[§352 


to  matters  of  opinion,  be  set  forth  in  affidavits  and  filed  as  fol- 
lows: Those  of  the  plaintiff  within  forty  days  after  the  cause 
is  at  issue ;  those  of  the  defendant  within  twenty  days  after  plain- 
tiff's time  has  expired;  and  rebutting  affidavits  within  fifteen 
days  after  the  expiration  of  the  time  for  filing  original  affidavits. 
Should  the  opposite  party  desire  the  production  of  any  affiant 
for  cross-examination,  the  court  or  judge  shall,  on  motion,  direct 
that  said  cross-examination  and  any  re-examination  take  place 
before  the  court  upon  the  trial,  and  unless  the  affiant  is  produced 
and  submits  to  cross-examination  in  compliance  with  such  direc- 
tion, his  affidavit  shall  not  be  used  as  evidence  in  the  cause. ' '  ^^ 

"All  evidence  offered  before  an  examiner  or  like  officer,  to- 
gether with  any  objections,  shall  be  saved  and  returned  into  the 
court.     Depositions,  whether  upon  oral  examination  before  an 


14  Eq.   Rule   48.     In  view   of   the 
positive    language    of    the    Eevised 
Statutes,   there  may  be  some  ques- 
tion whether  the  Court  can   compel 
the    testimony    of    expert    witnesses 
who    live    more    than    one    hundred 
miles  from  the  place  of  trial  to  be 
thus  taken.     See  U.  S.  E.  S.,  §  863. 
Infra,    §  354.    By  the   Equity  Rules 
of  S.  D.  N.  Y.    "5.  In  the  trial  of  a 
patent  cause  whether  in  open  Court 
or  by  deposition,  or  partly  in  each 
way,  only  one  expert  witness   shall 
be  allowed  to  each  side,  unless  leave 
shall    previously    be    obtained    from 
the     Court     on    motion    made     and 
cause  shown. "    "In  cases  where  un- 
der Supreme   Court  Rule  48  the  di- 
rect testimony  of  experts  in  Patent 
causes  is  taken  by  affidavit,  the  wit- 
nesses  shall   not   give   their   opinion 
as    to   the    meaning   of    any   patent 
claim  or  specification,  but  their  tes- 
timony shall  be  strictly  confined  to 
an   explanation   of  the  operation   of 
relevant    arts,    processes,    machines, 
manufactures     or     compositions     of 
matter,  and  of  the  meaning  of  terms 
of  art  or  science  and  of  diagrams  or 
formulae.     If  the  aflcidavit  or  depo- 
sition of  any  expert  witness  contain 
matter   forbidden   by  this   Rule,   or 


irrelevant  or  immaterial  matter,  it 
shall  not  be  answered  by  the  opi)0- 
aite  party,  nor  shall  it  be  the  basis 
of  any  cross-examination  at  the 
hearing,  and  the  Court  at  any  stage 
of  the  case  may  strike  from  any 
such  affidavit  or  deposition  all  such 
matter."  Eq.  Rule  6.  "Each  Dis- 
trict court  shall  establish  regular 
times  and  places,  not  less  than  once 
each  month,  when  motions  requiring 
notice  and  hearing  may  be  made  and 
disposed  of;  but  the  judge  may  at 
any  time  and  place,  and  on  such 
notice,  if  any,  as  he  may  consider 
reasonable,  make  and  direct  all  in- 
terlocutory orders,  rulings  and  pro- 
ceedings for  the  advancement,  con- 
duct and  hearing  of  cases.  If  the 
public  interest  permits,  the  senior 
circuit  judge  of  the  circuit  may  dis- 
pense with  the  motion  day  during 
not  to  exceed  two  months  in  the 
year  in  any  district." 

Wliere  there  is  doubt  as  to  the 
propriety  or  relevancy  of  any  mat- 
ter, the  court  will  reserve  until  the 
hearing,  its  decision  upon  the  mo- 
tion to  strike  it  out.  Victor  Talk- 
ing Mach.  Co.  V.  Sonora  Phonograph 
Corp.,  221  Fed.  676. 


§  352]  TESTIMONY  TAKEN*  AFTER  ISSUE  177."» 

examiner  or  like  officer  or  otherwise,  shall  be  taken  upon  ques- 
tions and  answers  reduced  1o  writing;,  or  in  the  form  of  narra- 
tive, and  the  witness  shall  bo  subject  to  crass  and  re-examina- 
tion." i^ 

"When  deemed  necessaiy  by  the  court  or  officer  taking  testi- 
mony, a  stenographer  may  be  appointed  who  shall  take  down  tes- 
timony in  shorthand  and,  if  recpiired,  transcribe  the  same.  His 
fee  shall  be  fixed  l)y  the  court  and  taxed  ultimately  as  costs.  The 
expense  of  taking  a  deposition,  or  the  cost  of  a  transcript,  shall 
be  advanced  by  the  party  calling  the  witness  or  ordering  the 
transcript."  ^^ 

"Objections  to  the  evidence,  before  an  examiner  or  like  officer, 
shall  be  in  short  form,  stating  the  grounds  of  objection  relied 
upon,  but  no  transcript  filed  by  such  officer  shall  include  argu- 
ment or  debate.  The  testimony  of  each  witness,  after  being  re- 
duced to  writing,  shall  be  read  over  to  or  by  him,  and  shall  be 
signed  by  him  in  the  presence  of  the  officer ;  provided,  that  if  the 
witness  shall  refuse  to  sign  his  deposition  so  taken,  the  officer 
shall  sign  the  same,  stating  upon  the  record  the  reasons,  if  any, 
assigned  by  the  witness  for  such  refusal.  Objection  to  any  ques- 
tion or  questions  shall  be  noted  by  the  officer  upon  the  deposition, 
but  he  shall  not  have  power  to  decide  on  the  competency  or  ma- 
teriality or  relevancy  of  the  questions.  The  court  shall  have 
power,  and  it  shall  be  its  duty,  to  deal  with  the  costs  of  incom- 
petent and  immaterial  or  irrelevant  depositions,  or  parts  of 
them,  as  may  be  just. "  ^"^ 

"Witnesses  who  live  within  the  district,  and  whose  testimony 
may  be  taken  out  of  court  by  these  rules,  may  be  summoned  to 
appear  before  a  commissioner  appointed  to  take  testimony,  or 
before  a  master  or  examiner  appointed  in  any  cause,  by  sub- 
poena in  the  usual  form,  which  may  be  issued  by  the  clerk  in 
blank  and  filled  up  by  the  party  praying  the  same,  or  by  the 
commissioner,  master,  or  examiner,  requiring  the  attendance  of 
the  witnesses  at  the  time  and  place  specified,  who  shall  be  al- 
lowed for  attendance  the  same  oompousation  as  for  attendance 

16  Eq.  Rule  49.     See  Be  Felts,  205  eviden.e  at  the  complainant's  eonrts 

Pp^    9g3  cannot    be    made    at    the    ai»[.ellate 

16  Eq   Eule50.  c-ouit.      Horton   Mfg.    Co.   v.    White 

17  Eq.  Rule  51.  See  infra,  §§409,  Lily  Mf-.  Co.,  C  (\  A.,  21:?  Fed. 
410,    411.      A    motion    to    strike    out  471. 


1776  EviDEKcK  [§  352 

ill  court ;  and  if  any  witness  shall  refuse  to  appear  or  give  evi- 
dence it  shall  be  deemed  a  contemijt  of  the  court,  which  being 
certified  to  the  clerk's  office  by  the  commissioner,  master,  or  ex- 
aminer, an  attachment  may  issue  thereupon  by  order  of  the  court 
or  of  any  judge  thereof,  in  the  same  manner  as  if  the  contempt 
were  for  not  attending,  or  for  refusing  to  give  testimonj^  in,  the 
court.  In  case  of  refusal  of  witnesses  to  attend  or  be  sworn  or 
to  answer  any  question  put  by  the  commissioner,  master  or  ex- 
aminer or  by  counsel  or  solicitor,  the  same  practice  shall  be 
adopted  as  is  now  practiced  with  respect  to  witnesses  to  be  pro- 
duced on  examination  before  an  examiner  of  said  court  on  writ- 
ten interrogatories. ' '  ^* 

"Notice  shall  be  given  by  the  respective  counsel  or  parties  to 
the  opposite  counsel  or  parties  of  the  time  and  place  of  exam- 
ination before  an  examiner  or  like  officer  for  such  reasonable 
time  as  the  court  or  officer  may  fix  by  order  in  each  case. ' '  ^® 

"After  a  cause  is  at  issue,  depositions  may  be  taken  as  pro- 
vided by  sections  863,  865,  866  and  867,  Revised  Statutes.  But 
if  in  any  case  no  notice  has  been  given  the  opposite  party  of  the 
time  and  place  of  taking  the  deposition,  he  shall,  upon  applica- 
tion and  notice,  be  entitled  to  have  the  witness  examined  orally 
before  the  court,  or  to  a  cross-examination  before  an  examiner  or 
like  officer,  or  a  new  deposition  taken  with  notice,  as  the  court 
or  judge  under  all  the  circumstances  shall  order."  ^^ 

"Upon  the  filing  of  any  deposition  or  affidavit  taken  under 
these  rules  or  any  statute,  it  shall  be  deemed  published,  unless 
otherwise  ordered  l)y  the  court. ' '  ^^ 

"After  the  time  has  elapsed  for  taking  and  filing  depositions 
under  these  rules,  the  case  shall  be  placed  on  the  trial  calendar. 
Thereafter  no  further  testimony  by  deposition  shall  be  kept  ex- 
cept for  some  strong  reason  shown  by  affidavit.  In  everi'  such 
application  the  reason  why  the  testimony  of  the  witness  cannot 
be  had  orally  on  the  trial,  and  why  his  deposition  has  not  been 
before  taken,  shall  be  set  forth,  together  with  the  testimony  which 
it  is  expected  the  witness  will  give. ' '  ^^ 

18  Eq.  Kule  52.  should    be    delayed,    see    Batdorf    v. 

19  Eq.  Eule  5.3.  Sattley  Coin  Handling  Mach.  Co., 
80  Eq.  Rule  54.  238  Fed.  925,  927,  quoted  supra, 
21  Eq.  Rule  55.  For  a  ease  where       §  348. 

the    Court   directed   that   the    publi  22  Eq.   Rule   56. 

cation  of  answers  to  interrogatories 


§  352]  TESTIMONY  TAKEN  AFTEK  ISSUE  1777 

Originally,  the  only  manner  of  examining  witnesses  within  the 
jnrisdiftion  of  a  court  of  chancery  was  by  means  of  written 
interrogatories  and  cross-interrogatoi'ies,  which  were  prepared 
by  the  solicitors  and  counsel  of  the  resjjective  parties,  or  by  the 
court,  and  then  submitted  to  an  examiner  or  one  or  more  com- 
missioners appointed  by  the  court,  who  examined  the  witnesses 
privately  by  means  of  them.  The  testimony  thus  obtained  was 
kept  secret  until  all  the  testimony  in  the  cause  had  been  taken. 
The  time  when  it  could  first  be  inspected  was  called  the  time 
of  publication.  This  method  of  taking  testimony  was,  like 
many  other  parts  of  equity  practice,  borrowed  from  the  canon 
law ;  with  this  difference,  however,  that  whereas  by  the  canon 
law  each  party  before  the  examination  of  witnesses  was  obliged 
to  furnish  his  adversary  and  the  court  with  articles  containing 
a  specific  statement  of  the  facts  which  he  expected  to  prove  by 
them ;  in  equity,  on  the  other  hand,  except  in  a  few  rare  in- 
stances, facts,  not  evidence,  are  required  to  be  pleaded.  So,  orig- 
inally, each  party  was  before  publication  very  much  in  the  dark 
as  to  the  facts  which  his  antagonist  intended  to  attempt  to 
establish.  "It  is  not  surprising,  therefore,  that  the  mode  of  tak- 
ing testimony  in  equity  fell  into  disrepute,  and  finally  broke 
down."  23 

23  Langdell  's  Eq.  PI.,  §  56.  See  guard  against  this  abuse,  that  ex- 
also  Langdell's  Eq.  PI.,  §§  14-19,  57,  aminations  in  chief  are  not  per- 
58;  Eillert  v.  Craps,  44  Fed.  792;  niitted,  after  publication,  and  that 
Wood  V.  Mann,  2  Sumn.  316.  The  courts  of  law  will  not  grant  new- 
argument  in  favor  of  this  practice  trials  merely  to  enable  a  party  to 
is  stated  by  Chancellor  Kent  in  accumulate  testimony  on  any  given 
Eemscn  v.  Kemsen,  2  J.  Ch.  (N.  Y.)  point,  or  to  oppose  that  which  was 
495,  499,  500:  "Whether  examina-  taken  on  the  opposite  side.  It  is 
tions  shall  be  secret,  and  to  what  also  upon  the  same  grounds  tliat 
extent  they  shall  be  carried,  sug-  a  witness,  who  has  been  examined 
gests  much  more  important  consid-  in  chief  before  the  hearing,  cannot 
erations.  If  examinations  are  pro-  be  re-examined  before  the  master, 
tracted,  from  day  to  day,  for  any  without  an  order,  and.  then,  not  to 
length  of  time,  there  is  very  great  any  matter  to  which  he  had  before 
danger  of  abuse  from  public  exami-  been  examined  (Dickens,  508) ; 
nations,  by  which  parties  are  en-  and  that  a  witness,  once  examined 
abled  to  detect  the  weak  parts  of  before  the  master,  cannot  be  re- 
the  adversary's  case,  or  of  their  examined,  without  an  order.  (2 
own,  and  to  hunt  up  or  fabricate  Ves.  370.  2  Haddock's  Ch.  392, 
testimony  to  meet  the  pressure  or  "93.)  In  trials  at  common  law,  the 
exigency   of   the   inquiry.      It    is   to  cause     is     heard,     and     the     verdict 


1778 


EVIDENCE 


[§352 


Under  the  Equity  Rules  of  1842,  as  subsequently  aniended,^* 
testimony  within  the  jurisdiction  was  usually  taken  orally  before 
an  examiner.  It  was  the  duty  of  the  examiner  to  note  all  of  the 
objections  and  of  the  exceptions  to  questions  and  answers  and 
to  take  the  testimony  subject  to  them  when  deciding  on  their 
validity. 25  It  was  held  that  the  court  should  not  interfere  to 
prevent  irrelevant  questions.^^  The  only  way  to  object  for  ir- 
relevancy was  for  the  witness  to  refuse  to  answer  and  then  to 
raise  the  objection  upon  a  motion  to  compel  liim  to  answer  2'  or 
upon  contempt  proceedings.^*  Where  the  witness  or  the  evi- 
dence was  privileged,29  or  it  clearly  and  affirmatively  appeared 
that  the  evidence  sought  could  not  possibly  be  competent,  ma- 
terial or  relevant,  which  very  rarely  happened,  such  a  motion 
would  be  denied ;  ^^  but  a  witness  ordinarily  was  compelled  to 
answer  all  questions  which  might  possibly  be  relevant  or  ma- 
terial, provided  that  he  was  not  privileged.^i  This  rule  applied 
to  depositions  taken  upon  a  commission  of  dedimus  potestatem, 
issued  under  section  eight  hundred  and  sixty-six  of  the  Revised 
Statutes  of  the  United  States,  after  a  general  notice  by  the  plain- 
tiff that  he  desired  the  evidence  to  be  taken  orally ;  ^2  unless,  for 
special  reasons,  the  court  ordered  it  to  be  taken  upon  written  in- 
terrogatories.^' This  system  produced  great  abuses.  Records 
were  swollen  with  irrelevant  matter  consisting  not  only  of  testi- 
mony but  of  discussions  between  counsel.    Before  a  case  could  be 


taken  at  one  sitting,  and  all  oppor- 
tunity for  getting  np  siippletory 
proof  is  precluded." 

24  Former  Eq.   Rule  67. 

26Appleton  v.  Ecaubert,  45  Fed. 
281.    See  Be  Felts,  205  Fed.  983. 

26Blease  v.  Garlington,  92  U.  S. 
1,  4-8,  23  L.  ed.  521,  522-524. 

27  Independent  Baking  Powder 
Co.  V.  Boorman,  137  Fed.  995.  See 
Dowagiac  Mfg.  Co.  v.  Loehren,  C. 
C.  A.,  143  Fed.  211,  where  the  form 
of  the  application  was  a  petition 
for  mandamus. 

28  Butler  v.  Fayerweather,  C.  C. 
A.,  91  Fed.  458. 

29  Butler  v.  Fayerweather,  C.  C. 
A.,  91  Fed.  458;  Dowagiac  Mfg.  Co. 


V.  Loehren,  C.  C.  A.,  143  Fed.  211. 

30  Independent  Baking  Powder 
Co.  V.  Boorman,  137  Fed.  995; 
Dowagiac  Mfg.  Co.  v.  Loehren,  C. 
C.  A.,  143  Fed.  211;  siopra,  §343. 
This  is  the  present  rule.  Be  Felts, 
205  Fed.  983;  infra,  §353. 

31  Perry  v.  Rubber  Tire  Wheel 
Co.,  138  Fed.  836;  Dowagiac  Mfg. 
Co.  V.  Loehren,  C.  C.  A.,  143  Fed. 
211.     Be  Felts,  205  Fed.  983. 

32  Bischoff scheim  v.  Baltzer,  10 
Fed.  1;  Encyclopaedia  Britannica 
Co.  V.  Werner  Co.,  138  Fed.  461; 
infra,  §  356. 

33  Bischoffscheim  v.  Baltzer,  10 
Fed.  1. 


$5  353] 


TESTIMONY   IN"   ANOTHER  JURISDICTION 


1770 


heard,  the  courts  required  that  tliis  all  be  printed,  and  fees  be 
paid  the  clerks  of  the  courts  for  filinir  the  same.  The  consequence 
was  that  a  rich  and  unscrupulous  defendant  could  make  litigation 
so  expensive  and  delay  a  case  so  long  that  poor  men  feared  to 
assert  their  rights  on  the  equity  side  of  the  courts  of  the  United 
States.  The  evil  was  especially  prominent  in  litigation  concern- 
ing patents.  The  new  rules  have,  it  is  hoped,  abolished  it  for- 
ever. 

It  has  been  held  that  the  taking  of  depositions  before  an 
examiner  in  an  equity  suit  is  not  a  judicial  trial,  nor  part  of  a 
trial,  but  merely  a  proceeding  preliminary  to  a  trial,  and  that 
neither  the  public,  nor  the  representatives  of  the  press,  have  the 
right  to  be  present  against  the  objection  of  either  party.'*  A 
recent  statute  directs  that  testimony  in  such  proceedings  in  suits 
by  the  United  States  under  the  Anti-Monopoly  Law  shall  be 
public.'^ 

§  353.  Testimony  taken  after  a  cause  is  at  issue  and  beyond 
the  jurisdiction  of  the  court.  It  often  happens  that  a  witness, 
whose  testimonj^  is  needed  by  either  party  to  a  suit  in  equity,  is 
beyond  the  jurisdiction  of  the  court.  In  such  a  case,  his  testi- 
mony can  be  taken  in  six  ways. — by  deposition,  according  to  the 
acts  of  Congress ;  ^  l)y  a  commission  under  a  dedimus  potesta- 
tem;^  by  letters  rogatory:'  in  the  method  prescribed  by  the 
laws  of  the  State  where  the  court  is  held:*  and  by  a  special 
master  or  examiner,*  or  a  master  ^  appointed  by  the  court  where 
the  suit  is  pending  to  take  testimony  in  another  district,  or  even 
in  a  foreign  country.''  In  such  cases,  applications  to  compel  wit- 
nesses to  answer  questions  or  to  punish  them  for  contempt,  must 
be  made  to  the  court  of  the  district  where  the  testimonv  is 


84  U.  S.  V.  United  Shoe  Machinery 
Co.   of   New   Jersey,   198   Fed.   870. 
36  Act  of  March   3d,   1913. 
§  353.     \  Infra,  §§354,  355. 

2  Infra,  §§356.  357. 

3  Infra,  §  358. 

4  27  St.  at  L.   17;    §359,  infra. 

6  White  V.  Toledo  R.  Co.,  C.  C.  A., 
79  Fed.  133;  North  Carolina  R.  Co. 
V.  Drew,  3  Woods  691;  Be  Steward, 
29  Fed.  813;  Johnson  Steel  Street 
Rail  Co.  V.  North  Branch  Steel  Co., 


48  Fed.  191;  Be  Allis,  44  Fed.  217; 
Be  Spofford,  62  Fed.  443;  Be  Rob- 
ert Gair  Co.,  C.  C.  A.,  196  Fed,  492, 
493;  IT.  S.  v.  Standard  Sanitary 
Mfg.  Co.,  187  Fed.  232.  But  sec 
Arnold  v.  Cliesebrough,  35  Fed.  16, 
and  Celluloid  Mfg.  Co.  v.  Russell, 
35  Fed.  17. 

8  Consolidated  Fastener  Co.  v. 
Columbian  B.  &  T.  Co.,  85  Fed.  54. 

7  Bate  Refrigerating  Co.  v.  Gill- 
ette, 28  Fed.  673. 


1780  EVIDENCE  [§354 

taken ;  ^  and  if  application  to  the  court  for  subpoenas  is  neces- 
sary, the  court  of  such  district  must  issue  theni.^  Where  a  party 
lives  without  the  district,  the  court  has  the  power  to  postpone 
the  trial  to  enable  his  deposition  to  be  taken,  unless  he  is  present 
in  court  and  within  reach  of  a  subpoena.^*' 

§354.  Depositions  de  bene  esse  under  the  acts  of  Congress. 
The  acts  of  Congress  which  authorize  depositions  to  be  taken 
de  bene  esse,  apply  to  cases  at  common  law  and  in  equity.^  They 
are  as  follows:  "The  testimony  of  any  witness  may  be  taken  in 
any  civil  cause  depending  in  a  District  or  Circuit  Court  by  depo- 
sition de  bene  esse,  when  the  Mdtness  lives  at  a  greater  distance 
from  the  place  of  trial  than  one  hundred  miles,  or  is  bound  on  a 
voyage  to  sea,  or  is  about  to  go  out  of  the  United  States,  or  out 
of  the  district  in  which  the  case  is  to  be  tried,  and  to  a  greater 
distance  than  one  hundred  miles  from  the  place  of  trial,  before 
the  time  of  trial,  or  when  he  is  ancient  and  infirm.  The  deposi- 
tion may  be  taken  before  any  judge  of  any  court  of  the  United 
States,  or  any  commissioner  of  a  Circuit  Court,  or  any  clerk  of  a 
District  or  Circuit  Court,  or  any  chancellor,  justice,  or  judge 
of  a  Supreme  or  Superior  Court,  mayor  or  chief  magistrate  of  a 
cit}-,  judge  of  a  County  Court  or  Court  of  Common  Pleas  of  any 
of  the  United  States,  or  any  notary  public,  not  being  of  counsel 
or  attorney  to  either  of  the  parties,  nor  interested  in  the  event 
of  the  cause.  Reasonable  notice  must  first  be  given  in  writing 
by  the  party  or  his  attornej-  proposing  to  take  such  deposition, 
to  the  opposite  party  or  his  attorney  of  record,  as  either  may 
be  nearest,  which  notice  shall  state  the  name  of  the  witness,  and 
the  time  and  place  of  the  taking  of  his  deposition ;  and  in  all 
cases  in  rem,  the  person  having  the  agency  or  possession  of  the 
property  at  the  time  of  seizure  shall  be  deemed  the  adverse  party, 
until  a  claim  shall  have  been  put  in ;  and  whenever,  by  reason  of 
the  absence  from  the  district  and  want  of  an  attorney  of  record 
or  other  reason,  the  giving  of  the  notice  therein  required  shall 
be  impracticable,  it  shall  be  lawful  to  take  such  depositions  as 
there  shall  be  urgent  necessity  for  taking,  upon  such  notice  as 

8U.  S.  V.  Standard  Sanitary  Mfg.  10  Frost  v.  Barber,  173  Fed.  847. 

Co.,  187  Fed.  232;   infra,  §429.  §3.54.  1  Stegner  v.  Blake,  36  Fed. 

9U.  S.  V.  Standard  Sanitary  Mfg.       183;   U.  S.  R.  S.,  §863. 
Co.,  187  Fed.  232.    But  see  Eq.  Eule 
52. 


§354]  DEPOSITION'S    DE    BKSE   ESSE  1781 

any  judge  authorized  to  hold  courts  in  such  circuit  or  district 
shall  think  reasonable  and  direct.  Any  person  may  be  comix-llod 
to  appear  and  depose  as  provided  by  this  section,  in  the  same 
manner  as  witnesses  may  be  compelled  to  appear  and  testify  in 
court. "'^  It  has  been  held  that  the  deposition  may  be  taken  be- 
fore the  jndge  who  is  to  trj-  the  case,  at  the  residence  of  the 
witness  ontside  of  the  judge's  district.^ 

"Every  person  deposing  as  provided  in  ilie  preceding  section, 
shall  be  cautioned  and  sworn  to  tell  the  whole  truth,  and  carefully 
examined.  His  testimony  shall  be  reduced  to  writing,  or  t\pewrit- 
ing,  bj^  the  officer  taking  the  deposition,  or  by  some  other  person 
under  his  personal  supervision,  or  by  the  deponent  himself  in  the 
officer's  presence,  and  by  no  other  person,  and  shall,  after  it  has 
been  reduced  to  writing  or  typewriting,  be  subscribed  Ity  1lie 
deponent.  "^^ 

It  seems  insufficient  to  swear  the  witness  to  tell  ihe  Avhole 
truth  concerning  such  interrogatories  as  may  be  put  to  him.  He 
should  be  sworn  or  should  affirm  to  tell  the  whole  truth  as  far  as 
he  knows  concerning  the  matter  in  controversy  between  the  par- 
ties.* It  seems  that  if  flie  witness  is  properly  sworn,  it  is  neces- 
sary that  he  be  also  cautioned  to  testify  the  whole  truth ;  ^  and 
that  the  oath  may  be  administered  after  the  deposition  has  been 
reduced  to  writing,  as  well  as  before.^     If  the  witness  has  con- 

2  U,  S.  R.  S.,   §  863.  allowed   to    take   depositions   iu    an- 
It  has  been  held  that  the  deposi-       other    State,    see    United    Lace    & 

tion   may  be  taken   before   a  judge  Braid  Mfg.  Co.  v.  Barthels  MtV.  Co.. 

of   probate   if   his  court   is   a  court  217  Fed.  175. 

of      record,      Merrill      v.      Dawson,  3a  \\  s.  R.  S..  S  S(i4.  a--  amended 

Hempst.  .563;   s.  C,  sub  nom.    Tow-  May  13,  190n. 

ler  V.   Merrill,   11   How.   375,   13   L.  4  Shutte    v.    Thompson,    15    Wall, 

ed.  736;   or  any  county  judge,  Voce  152;   Pondleton  v.  Forbes,  1   Crancli 

V.  Lawrence,  4  McLean  203.     It  has  507;  Garrett  v.  Woodward,  2  Oram-h 

been   held   that   the   deposition    can-  190;     Rainer    v.     Haynes,    Hempst. 

not  be  taken  before  a  township  jus-  689;   Wilson  S.  M.  A.  v.  Jackson,  1 

tice,  Schutte  v.  Thompson,  15  Wall.  Hughes,  295;   U.  S.  v.  Smith,  4  Day 

152,  21  L.  ed.  123;   or  a  judge  of  a  121. 

county  commissioner's  court,  Garey  6  Moore  v.  Nelson,  .>  McLean  ;!S:!; 
V.  Union  Bank,  3  Cranch,  C.  C.  91;  Brown  v.  Piatt,  2  Oi-anch  253.  Con- 
or a  judge  of  a  city  court,  Freeman  ha,  Luther  v.  The  Mev'-*-  ir„„f  } 
V.  Holmead,  5  Cranch,  C.  C.  162.  Newb.  Adni.  -4. 

3  Jennings  V.  Smith,  244  Fed.  837.  6  Toker    v.    Thompson.    :-;    McLean 
For  a   case  where  the  plaintiff  wa=  92. 

Fed.  Piac.  Vol.  TT— tJ 


1782 


EVIDENCE 


[§  354 


scientious  scruples  aboi^t  taking  an  oath,  he  may  affirm.'  The 
certificate  of  the  magistrate  that  the  witness  has  such  conscien- 
tious scruples  is  sufficient  evidence  thereof.^ 

"Every  deposition  taken  under  the  two  preceding  sections 
shall  be  retained  by  the  magistrate  taking  it,  until  he  delivers  it 
with  his  own  hand  into  the  court  for  which  it  was  taken ;  or  it 
shall,  together  with  a  certificate  of  the  reasons  as  aforesaid  of 
taking  it,  and  of  the  notice,  if  any,  given  to  the  adverse  party, 
be  by  him  sealed  up  and  directed  to  such  court,  and  remain  under 
his  seal  until  opened  in  court.  But  unless  it  appears  to  the  satis- 
faction of  the  court  that  the  witness  is  then  dead,  or  gone  out  of 
the  United  States,  or  to  a  greater  distance  than  one  hundred 
miles  from  the  place  where  the  court  is  sitting,  or  that  by  reason 
of  age,  sickness,  bodilj^  infirmity,  or  imprisonment  he  is  unable 
to  travel  and  appear  at  court,  such  deposition  shall  not  be  used 
in  the  cause. ' '  ® 

These  sections  do  not  apply  to  the  taking  of  depositions  in 
foreign  countries.^*' 

In  suits  in  equity  it  is  the  safer  practice  for  the  plaintiff  to 
take  his  deposition  within  sixty  days  from  the  time  the  cause  is 
at  issue ;  the  defendant  within  thirty  days  from  the  expiration  of 
this  time  and  rebutting  depositions  b}^  either  party  within  twenty 
days  thereafter.^^  A  deposition  cannot  be  taken  under  these 
statutory  provisions  after  an  appeal  to  the  Supreme  Court  or  the 
Circuit  Court  of  Appeals  has  been  perfected ;  for  the  case  is  then 
no  longer  "depending"  in  a  Circuit  Court. ^^  This  practice  has 
no  application  to  cases  pending  in  the  Supreme  Court.^^ 


I  U.  S.  E.  S.,  §  1. 

8  Elliot  V.  Hayman,  2  Crancli  678. 

9  U.  S.  E.  S.,  §  865. 

10  Cortes  Co.  v  Tannhauser,  18 
Fed.  667;  Stein  v.  Bowman,  13  Pet. 
209,  10  L.  ed.  129;  The  Alexandra, 
104  Fed.  904;  Compania  Azucarera 
Cubana  v.  Ingraham,  Maxwell  & 
Beals,  180  Fed.  516;  Birge-Forbes 
Co.  V.  Heye,  C.  C.  A.,  248  Fed.  636. 
But  see  Bisehoffsheim  v.  Baltzer,  10 
Fed.  1. 

II  Eq.  Enle  47.  Whether  this  rule 
applies  to  depositions  de  bene  esse 
under  the  revised  statutes  is  a  dis- 


puted question.  It  has  been  held 
that  it  does  not  in  Iowa  Washing 
Mach.  Co.  V.  Montgomery  Ward  & 
Co.,  227  Fed.  1004  (S.  D.  N.  Y.). 
Contra,  Block  v.  Arrowsmith  Mfg. 
Co.,  243  Fed.  775  (D.  J.)  ;  Audiffren 
Eefrigerating  M.  Co.  v.  General  El. 
Co.,  245  Fed.  783   (D.  N.  J.). 

12  Eichter  v.  Jerome,  25  Fed.  679, 
681 ;  Slaughter-House  Cases,  10 
Wall.  273,  19  L.  ed.  915. 

13  The  Argo,  2  Wheat.  287,  4  L. 
ed.  241;  Eichter  v.  Jerome,  25  Fed. 
679,  681. 


§354] 


DEPOSITIONS    DE    BENE   ESSE 


1783 


Either  party  to  an  action  at  law,  or  a  suit  in  equity,  may  be 
thus  examined  under  oath  when  tiie  other  statutory  conditions 
exist. ^*  It  has  been  held  that  a  witness  or  a  part}^  not  ancient 
or  infirm,  cannot  be  examined  under  this  statute  de  bene  esse 
before  issue  joined,  although  he  resides  more  than  one  hundred 
miles  from  the  place  of  trial. ^^  The  magistrate  should  write 
down  and  return  to  the  court  any  species  of  evidence  offered  be- 
fore him,  and  cannot  exclude  evidence  on  the  ground  that  it  is 
not  pertinent.  It  belongs  to  the  court,  on  the  return  of  the  depo- 
sition, to  determine  whether  the  evidence  is  pertinent  or  not.^® 

The  relevancy  of  a  question  and  the  right  to  have  the  deposi- 
tion taken  will  be  tested,  if  the  witness  refuses  to  answer,  and 
an  application  is  made  to  punish  him  for  contempt. ^^ 

In  an  examination  before  a  master,  examiner,  or  commissioner, 
if  the  question  is  improper  or  irrelevant,  the  answer  may  be  dis- 
regarded by  the  court,  or  the  counsel  may  advise  the  witness 
not  to  answer  until  the  (juestion  has  been  submitted  to  the 
court  for  determination.^* 


14  Lowrey  v.  Kiisworm,  66  Fed. 
5.39 ;  svpra,  §  B.'^Q. 

16  Stevens  v.  Mo.,  K.  &  T.  Ey.  Co., 
104  Fed.  934;  Flower  v.  MacGinniss, 
C.  C.  A.,  112  Fed.  377;  Hartman  v. 
Feenaiighty,  139  Fed.  887.  Contra, 
Lowrey  v.  Kusworm,  66  Fed.  539. 

16  Ex  parte  Judson,  3  Blatehf .  89 ; 
Adee  v.  J.  L.  Mott  Iron  Works,  46 
Fed.  39.  See  Thomson-Houston  El. 
Co.  V.  Jeffrey  Mfg.  Co.,  83  Fed.  614; 
He  Feltz,  205  Fed.  983. 

ITEx  parte  Peck,  3  Blatehf.  113; 
Ex  parte  Judson,  3  Blatehf.  89. 
Wliere  the  witness  or  the  evidence 
is  privileged,  Butler  v.  Fayerweath- 
er,  C.  C.  A.,  91  Fed.  458;  Dowagiac 
Mfg.  Co.  V.  Lochren,  C.  C.  A.,  143 
Fed.  211;  or  it  clearly  and  affirma- 
tively appears  that  the  evidence 
sought  cannot  possibly  be  compe- 
tent, material  or  relevant,  and  that 
it  would  be  an  abuse  of  the  process 
of  the  court  to  compel  its  production, 
as  for  example,  when  it  relates  to 
matters  alleged  in  part  of  a  plead- 
ing,    which     has     been     previously 


stricken  out  by  the  court,  Independ- 
ent Baking  Powder  Co.  v.  Boorman, 

137  Fed.  995,  such  a  motion  is 
denied,  Independent  Baking  Pow- 
der Co.  v.  Boorman,  137  Fed.  995; 
Dowagiac  Mfg.  Co.  v.  Lochren,  C. 
C.  A.,  143  Fed.  211;  mpra.  §.343; 
but  a  witness  may  be  compelled  to 
answer  all  questions,  which  may  pos- 
sibly bo  relevant  or  material,  pro- 
vided that  he  is  not  privileged ; 
Perry    v.    Kubber    Tire    Wheel    Co., 

138  Fed.  836;  Dowagiac  Mfg.  Co. 
V.  Lochren,  C.  C.  A.,  143  Fed.  211. 
If  there  is  any  doubt  on  the  ques- 
tion of  its  relevancy,  the  motion  to 
compel  an  answer  will  be  granted. 
Independent  Baking  Powder  Co.  v. 
Boorman,  137  Fed.  995;  Perry  v. 
Rubber  Tire  Wheel  Co.,  138  Fed. 
836;  Butte  &  B.  Consol.  Min.  Co.  v. 
Montana  Ore  Purchasing  Co.,  139 
Fed.  843;  Buckeye  Powder  Co.  v. 
Hazard  Powder  Co.,  20r,  Fed.  827. 

18  Be  Felts,  205  Fed.  983.    Where 
the  master  certified  to  the  court  a 


1784 


EVIDENCE 


[§354 


The  statutory  provisions,  ))eing'  in  derogation  of  the  common 
law,  are  strictly  construed. ^^  Consequently,  before  depositions 
thus  taken  can  be  read  in  evidence,  the  party  that  offers  them 
must  prove  that  compliance  was  made  with  all  the  requirements 
of  the  statutes,  or  else  that  these  requirements  were  waived  by 
the  opposite  party.^**  There  is  no  presumption  that  a  deposi- 
tion was  properly  takeu.^^  The  certificate  of  the  magistrate  is 
prima  facie  evidence  of  such  a  compliance. ^^  His  certificate  that 
the  witness  lives  more  than  one  hundred  miles  from  the  place  of 
trial  is  prima  facie  evidence  of  that  fact,^^  and  when  that  ap- 
pears by  such  certificate,  or  by  testimonj^  in  the  deposition,  it 
will  be  presumed,  without  further  proof,  that  the  witness  is,  at 
the  time  of  trial,  more  than  one  hundred  miles  away.^*  When 
the  distance  is  great  the  court  may  take  judicial  notice  of  the 
fact.2^  A  witness  lives,  within  the  meaning  of  the  statute,  at  a 
place  "where  he  can  be  found  and  is  sojourning,  residing  or 
abiding  for  any  lawful  purpose.  "^^  It  has  been  held  that  he 
lives  at  a  place  where  he  has  gone  for  his  health  to  remain  for 
an  uncertain  time.^'^'  Where  a  witness  who  lives  more  than  one 
hundred  miles  from  the  trial  but  is  not  otherwise  disqualified  is 
present  at  the  place  of  trial  and  available  to  the  party  who  took 
his  deposition,  his  deposition  cannot  be  read ;  ^8  unless  the  depo- 


question  which  a  witness  refused  to 
answer,  and  the  proponent  failed  to 
press  the  motion  to  compel  an  an- 
swer it  was  held  that  he  thereby 
waived  his  right  to  the  same.  Dr. 
Peter  H.  Fahrney  &  Sons  Co.  v. 
Euminer,  C.  C.  A.,  15.3  Fed.  735. 

19  Bell  V.  Morrison,  1  Pet.  351,  7 
L.  ed.  174. 

20  Bell  V.  Morrison,  1  Pet.  351,  7 
L.  ed.  174;  Harris  v.  Wall,  7  How. 
693,  12  L.  ed.  875. 

21  Bell  V.  Morrison,  1  Pet.  351, 
7  L.  ed.  174;  Banks  v.  Miller,  1 
Craneh,  C.  0.  543. 

22  Harris  v.  Wall,  7  How.  693,  12 
L.  ed.  875;  Thorpe  v.  Simmons,  2 
Craneh,  C.  C.  195. 

23  Patapsco  Ins.  Co.  v.  Southgate, 
5  Pet.  604,  8  L.  ed.  243;   Merrill  v. 


Dawson,  Hempst.  563;  s.  c.  suh 
n^m.  Fowler  v.  Merrill,  11  How. 
375.  13  L.  ed.  736;  Tooker  v.  Thomp- 
son, 3  McLean,  92. 

24  Texas  &  P.  Ey.  Co.  v.  Reagan, 
C.  C.  A.,  118  Fed.  815. 

25  Mutual  Ben.  Life  Ins.  Co.  v. 
Robison,  58  Fed.  723. 

26  Ibid. 

27  Ibid.  The  fact  that  a  witness 
is  a  seaman  on  a  gunboat  stationed 
in  harbor,  but  liable  to  be  or- 
dered to  some  other  place,  is,  it 
seems,  not  sufficient  to  authorize 
the  taking  of  his  testimony  de  bene 
esse  in  this  manner.  The  Samuel, 
1  Wheat.  9,  4  L.  ed.  23. 

28  Vagaszki  v.  Consolidated  Coal 
Co.,  C.  C.  A.,  225  Fed.  913  (in  which 
the  writer  was  counsel). 


cj  ;{r>4j 


DKI'OSITIONS    DK    HKNE    ESiSE 


178.") 


sitioii  was  lakt'ii  uiiclcf  a  si  ipiilal  ion  lliiit  il  mijzlit  lie  read  in 
evidenee.^^ 

If  the  wtiness  dops  not  live  nioi-c  tlian  mic  Imiidred  miles  i'l'din 
the  place  of  trial  the  party  who  has  taken  liis  deposition  must 
prove  that  his  disability  to  attend  still  continues,  and  that  due 
diligence  was  used  in  seeking  to  procure  his  attendance,  before 
the  deposition  can  be  read  in  evidence.^"  The  previous  issue  of 
a  subpa'na  is  not  essential  if  proof  of  the  inability  of  the  witness 
is  otherwise  given. ^^  If  it  appears  that  at  the  time  when  tlie 
deposition  was  taken  the  witness  lived  more  than  one  hundred 
miles  from  the  place  of  trial,  the  opjiosite  party,  upon  whom  the 
burden  then  rests,  may  prove  that  at  the  time  of  trial  lie  lives 
within  one  hundred  miles.^"  Actual  residence  and  not  domicile 
is  the  test.^^  Whether  a  witness  resides  more  than  one  hundred 
miles  from  the  place  of  trial  is  to  be  detei'mined  l)y  llie  adual 
distance  by  usual  routes,^* 

It  has  been  held  that  parol  evidence  is  inadmissil)]e  to  shftw  a 
sufficient  reason,  where  the  magistrate's  cei-titlcate  gives  one  tliat 
is  insufficient.^^ 


29  The  Colusa,  C.  C.  A.,  248  Fed. 
21. 

30  Patapsco  Ins.  Co.  v.  Southgate, 

5  Pet.  604,  612,  8  L.  ed.  243,  246; 
The  Samuel,  1  Wheat.  9,  4  L.  ed. 
23;  Weed  v.  Kellogg,  6  McLean,  44; 
Jones  V.  Greenolds,  1  Craneh,  C.  C. 
.^39;  Penn  v.  Ingraham,  2  Wash.  O. 
C:  487;  Baumert  v.  Day,  3  Wash. 
C.  C  343;  Pettibone  v.  Derringer. 
4  Wash.  C.  C.  215;  Bead  v.  Ber- 
trand,  4  Wash.  C.  C.  558;  Brown  v. 
Galloway,  Pet.  C.  C.  291. 

31  Park  v.  Willis,  1  Crandi.  C.  C. 
357;  Leatherberry  v.  Radcliffe,  5 
Craneh,  C.  C.  550. 

32  Penn  v.  Ingraham,  2  Wash.  C 
C.  487;  Brown  v.  Galloway,  Pet.  C. 
C.  291;  Pettibone  v.  Derringer,  4 
Wash.  215;  Russell  v.  Ashley, 
Hem])st.  546,  549;  Weed  v.  Kellogg. 

6  McLean.  44;  Whitford  v.  Clark 
Co.,   119  U.  S.  522,  30   L.  ed.   500; 


Patapsco    Ins.    Co.    v.    Southgate,    5 
Pet.  604,  8  L.  ed.  243. 

33  Frost  V.  Barber,  173  Fed.   848. 

3iEx   parte  Beebee,'  2    Wail.    .Jr. 
127. 

36  Wheaton  v.  Love,  1  Craneh,  C. 
C.  451.  But  see  Dunkle  v.  Worces- 
ter, 5  Biss.  102.  It  is  tlie  proper 
jtractice  for  the  magistrate  to  state 
in  liis  certificate  that  he  was  not  of 
counsel  for  either  i)arty  nor  inter- 
ested in  the  event  of  the  cause,  Gart- 
side  Coal  Co.  v.  Maxwell,  20  Fed. 
187:  Donohue  v.  Roberts,  19  Fe.l. 
863.  But  see  Miller  v.  Young,  - 
Craneh,  C.  C.  53;  Peyton  v.  Veitch, 
2  Craneh,  C.  C.  123;  Stewart  v. 
Townsend,  41  Fed.  121.  It  has  been 
held  that  tlie  magistrate's  certili 
cate  need  not  state  the  witness  was 
' '  sworn  to  testify  the  whole  trutli ' ' 
if  it  .states  that  tlie  witness  was 
sworn.        Bussard      v.      Catalino,    2 


1786 


EVIDENCE 


^fCg  §] 


No  order  or  rule  of  the  court  is  necessary  in  order  to  take 
depositions  in  this  manner.^^  Although  one  deposition  has  been 
already  taken,  yet  a  second  deposition  of  the  same  witness  may 
be  taken  without  an  order  of  the  court,^'''  even  it  seems  when  the 
first  deposition  was  taken  under  the  State  practice.^® 

§  354a.  Notice  of  taking-  deposition.  Any  one,  even  a  party 
to  the  suit,  may  serve  the  notice.^ 

If  the  United  States  be  a  party,  it  seems  that  service  of  the 
notice  should  be  made  upon  the  nearest  district  attornej^^  It 
has  been  held  that  if  an  attorney  has  been  employed  in  a  ease 
and  is  still  employed  therein,  notice  should  be  given  to  him,  al- 
though he  has  never  formally  appeared  on  the  record.^  The 
service  of  the  notice,  at  least  when  made  upon  the  party,  must 
be  personal,  unless  otherwise  expressly  authorized  as  provided 
for  in  the  statute.*  The  notice  must  be  served  a  reasonable  time 
before  the  taking  of  the  deposition.^ 

What  is  a  reasonable  time  depends  upon  circumstances.  It 
seems  that  it  is  not  proper  to  serve  a  notice  for  the  taking  of  a 
deposition  during  a  term  at  which  the  cause  could  be  tried,^  or  so 
short  a  time  before  as  not  to  allow  an  attorney,  if  he  attend,  to 
reach  the  court  before  the  commencement  of  that  term.'''  Under 
the  circumstances  of  one  case  it  was  held  that  an  hour's  notice 
was  reasonable.^    Under  those  of  another,  that  four  days'  notice 


Cranch,  C.  C.  421.  But  see  Eainer 
V.  Haynes,  Hempst.  689;  Garrett  v. 
Woodward,  2  Cranch,  C.  C.  190. 
Nor,  perhaps,  that  the  witness  is 
not  a  resident  of  the  district  where 
the  case  is  pending.  Sage  v.  Taus- 
zky,  6  Cent.  L.  J.  7. 

36  Pettibone  v.  Derringer,  4  Wash. 
215;  Buckingham  v.  Burgess,  3  Mc- 
Lean, 5  Cranch,  C.  C.  639. 

37  Nash,  tenant  of  Connett  v.  Wil- 
liams, 20  Wall.  226,  22  L.  ed.  254; 
Audiffren  Eefrigerating  M.  Co.  v. 
General  El.  Co.,  245  Fed.  783.  See 
U.  S.  V.  Tilden,  Fed.  Cas.  No.  16,522. 

38  Cook  V.  Flagg,  233  Fed.  713. 

§  354a.  1  Henning  v.  Boyle,  112 
Fed.  397;  Young  v.  Davidson,  5 
Cranch,  C.  C.  515. 


2  The  Argo,  2   Gall.   314. 

3  Allen  V.  Blunt,  2  M.  &  W.  121. 

4  Carrington  v.  Stimson,  1  Curt. 
437.  Contra,  Merrill  v.  Dawson, 
Hempst,  563;  s.  c.  sub  nom.  Fow- 
ler V.  Merrill,  11  How.  375,  13  L. 
ed.  736. 

5  Jamieson  v.  Willis,  1  Cranch, 
C.  C.  566;  Renner  v.  Howland,  2 
Cranch,  C.  C.  441;  Barreli  v.  Si- 
monton,  3  Cranch,  C.  C.  681;  Am. 
Ex.  Nat.  Bank  v.  First  Nat.  Bank, 
C.  C.  A.,  82  Fed.  961. 

6  Allen  V.  Blunt,  2  W.  &  M.  121; 
Bell  V.  Nimmon,  4  McLean,  539. 
Contra,  Union  Pac.  Ey.  Co.  v.  Eeese, 
C.  C.  A.,  56  Fed.  288. 

7  Bell  V.  Simmons,  4  McLean  539. 

8  Leiper  v.  Bickley,  1  Cranch,  C. 


§354a] 


NOTICE  OF   TAKING  DEl'OSITION 


1787 


was  iHJt.^  Wliere  the  magistrate's  certificate  showed  that  the 
time  of  taking  the  deposition  was  several  weeks  after  that  stated 
in  the  notice  and  there  had  been  no  adjournments,  the  deposi- 
tion was  suppressed.^*  If  the  notice  state  that  the  taking  of 
depositions  will  be  adjourned  from  day  to  day,  it  seems  that 
depositions  taken  upon  an  adjourned  day  will  be  received. ^^  A 
notice  that  a  party  will  on  the  same  day  take  depositions  of  wit- 
nesses in  different  cities  is  unreasonable,  and  such  depositions 
will  be  suppressed;  even,  it  has  been  held,  if  the  opposite  party 
appeared  at  eacli  by  counsel  and  cross-examined,  provided  that 
before  the  direct  examination  the  objection  was  specifically 
stated,  and  although  such  party  had  served  similar  notices  of 
the  taking  of  depositions  at  other  times  and  places  on  his  own 
behalf.i2 

It  is  the  rule  in  the  Southern  District  of  New  York  that  where 
the  witness  is  to  be  examined  at  a  place  remote  from  the  forum 
the  notice  must  state  his  name.^^  If  the  witnesses'  Christian 
names  are  unknowai,  the  inclusion  of  their  surnames  in  the  notice 
wdll  be  sufficient. 1*  "Where  the  parties  and  their  attorneys  lived 
in  the  place  where  the  deposition  was  taken,  a  notice  that  the 
deposition  would  be  taken  "before  William  G.  Peckham,  Esq., 
Notary  Public,  or  some  other  officer  authorized  by  law  to  take 
depositions,"  etc.,  was  held  sufficient  when  the  deposition  was 
taken  before  another  notary. ^^ 

The  notice  must  show  on  its  face  that  the  contingency  has  hap- 
pened which  confers  jurisdiction  on  the  magistrate,  and  gives 
the  party  serving  it  a  right  to  have  the  deposition  taken ;  so  that 
the  party  upon  whom  it  is  served  may  be  able  to  judge  whether 
it  is  necessary'  for  him  to  attend. ^^    It  has  been  held  that  a  wit- 


C.  29;  Bowie  v.  Talbot,  1  Cranch, 
C.  C.  247;  Atkinson  v.  Glenn,  4 
Cranch,  C.  C.  134.  But  see  Ben- 
ner  v.  Howland,  2  Cranch,  C.  C. 
441 ;  Irving  v.  Sutton,  1  Cranch,  C. 
C    567. 

9  Jones    V.    Illinois    Cent.    E.    Co., 
260  Fed.  488. 

10  Pullman    Co.    t.    Jordan,   C.    C. 
A.,  218  Fed.  573. 

11  Knodc  V.  Williamson,  17  Wall. 
586,  21  L.  ed.  670;  Sage  v.  Tauszky, 


6  Cent.  L.  J.  7.  But  see  Kirk- 
patriek  v.  B.  &  0.  R.  Co.,  24  Pittsb. 
L.  J.  51. 

12Uhle  V.  Burnham,  44  Fed.  729. 

13  Be  Automobile  Cooperative  As- 
sociation, 222  Fed.  345. 

14  Claxton  V.  Adams,  1  MacAr. 
(D.  C.)  496.  See  Carrington  v. 
Stimson,  1   Curt.  437. 

15Gormle.v  v.   Banyan,   138  Y.  S. 
623,  632,  34  L.  ed.  1086,  1089. 
ISAldrich  V.  Nye,  U.  S.  C.  C,  S. 


1788 


EVIDENCE 


[§354b 


ness  is  justified  iu  refusing  to  be  sworn  because  of  such  an  omis- 
sion ;  but  should  the  objection  be  waived  by  all  the  attorneys  it 
may  be  doubted  whether  this  decision  would  be  followed.  Tech- 
nical errors  in  the  notice  such  as  a  misdescription  of  the  district 
in  which  the  case  was  pending  ^"^  or  even,  it  was  held,  a  misnomer 
of  the  opposite  party  when  the  notice  was  served  upon  the  proper 
attorneys ;  ^^  when  the  latter  were  not  misled  thereby,  do  not 
justify  a  suppression  of  the  deposition.  It  has  been  held  that 
the  court  has  no  jurisdiction  to  vacate  the  notice ;  ^^  nor  to  ex- 
tend it.20 

Under  the  former  practice,  it  was  customary'  to  file  in  the 
clerk's  office,  the  notice,  or  a  cop.y  thereof,  with  an  affidavit  show- 
ing proof  of  service  thereof  and  proof  of  the  pendency  of  the 
suit,  and  the  clerk  then  issued  a  subpoena.''^  Whether  this  is  re- 
quired by  the  new  Equity  Rules  has  not  yet  been  decided.^^  No 
notice  of  filing  a  deposition  need  be  given  to  a  party  who  knows 
it  has  been  taken. ^^  A  State  statute  requiring  depositions  to  be 
filed  a  certain  number  of  days  before  trial  was  not  followed  by 
the  Federal  court. ^^ 

§354b.  Proceedings  upon  the  deposition.  Tt  has  been  held 
that  a  witness  may  be  compelled  to  attend  for  the  purpose  of 
having  his  deposition  taken  de  hene  esse,  either  by  a  subpcena 
duces  tecum,  or  the  writ  of  habeas  corpus  ad  testificandum,  but 
that  a  commissioner  cannot  issue  a  writ  of  habeas  corpus  to  take 
a  person  from  a  jail  for  the  purpose  of  giving  his  deposition 
before  such  a  commissioner.^     A  subpoena  duces  tecum  may  be 


D.  N.  Y.,  Lacombe,  J.,  Oct.  31, 
1891;  Harris  v.  Hall,  7  How.  693, 
12  L.  ed.  875.  Cmtra,  Debutts  v. 
McCulloch,  1  Craneh,  C.  C.  28;  Sage 
V.  Taiiszky,  6  Cent.  L.  J.  7. 

17  Grant  Bros.  v.  U.  S.  232  U. 
8.  647,  662. 

18  Pullman  Co.  v.  Jordan,  C.  C. 
A.,    218    Fed.    573. 

19  Kline  Bros.  &  Co.  v.  Liverpool 
&  London  &  Globe  Ins.  Co.,  184  Fed. 
969.  Contra,  Audiffren  Refrigerat- 
ing Mach.  Co.  V.  General  El.  Co., 
245  Fed.  783. 


20  Ibid. 

21Davis  V.  Davis,  90  Fed.  791; 
Ex  pwrte  Judson,  3  Blatehf.  89. 

22  See  Eq.  Eules  52,  54. 

23  Nelson  v.  Woodruff,  1  Black, 
156;  Leatherberry  v.  Radcliffe,  5 
Craneh  550.  The  D.  J.  Sawyer,  C. 
C.  A.,  236  Fed.  913.  For  practice 
when  a  deposition  is  destroyed,  see 
Stebbins  v.  Duncan,  108  U.  S.  32. 

24  Walker  v.   Collins,  59   Fed.   70. 
§  354b.        1  Ex      parte      Peck,      3 

Blatehf.    113;    U.    S.    v.    Tilden,    10 
Ben.  566. 


§354b] 


PROCEEDINGS    UPON   DEPOSITION' 


1789 


issued  by  the  court  to  compel  the  j)r<j(liirii(.ii  i.f  l)Ook.s  and  papers 
in  connection  with  such  deposition. ^ 

Under  the  former  practice,  a  subptoiia  duces  tecum  could  only 
be  issued  by  an  order  of  the  court.^  Whether  the  new  Etpiity 
Rules  permit  such  a  subpa-na  now  1o  be  issued  by  the  officei-  tak- 
ing the  deposition  has  not  yet  been  decided.*  A  party  cannot 
be  compelled  by  a  subpoena  to  produce  papers  or  books,  &c..  which 
would  not  be  material  or  competent  as  evidence,  merely  foi-  ijie 
purpose  of  refreshing  his  memory,^  but  the  production  of  books 
and  papers  which  are  material  may  be  thus  compelled ;  ^  even 
though  they  relate  to  his  private  business  and  he  is  not  interested 
in  the  suit,'''  not,  however,  it  has  been  held,  by  the  elieiil  from  an 
attorney,  who  has  a  lien  thereupon. ^ 

The  rules  concerning  the  exclusion  of  evidence  claimed  to  be 
incompetent,  irrelevant,  or  immaterial,  are  the  same  as  those  in 
depositions  taken  within  the  original  jurisdiction.^  A  witness 
will  be  compelled  to  answer  any  question  that  may  possibly  be 
material,  subject  to  his  right  to  be  protected  in  his  constitutional 
privilege.^®  It  has  been  held  that  after  a  party  has  examined  a 
witness  in  chief  under  the  statutory  provisions  and  demanded 
an  adjournment,  he  has  no  right  to  withdraw  the  proceedings, 
and  that  any  party  in  interest  may  compel  such  witness  to  appear 
and  submit  to  cross-examination.^^  Either  party  may  obtain 
an  order  compelling  the  return  of  a  deposition  thus  taken. ^^ 
After  a  deposition  has  been  taken,  the  court  may  allow  its  return 
for  cross-examination,  where  the  counsel  for  the  party  thereto 
entitled  has  not  attended  because  of  a  reasonable  excuse,^^  or  it 
may    allow    a    further    cross-examination    on    newly-discovered 


2U.  S.  V.  Tilden,  Fed.  Cas.  No. 
16,522;  Davis  V.  Davis,  90  Fed.  791. 

3  Danccl  v.  Goodyear  Shoe  Ma- 
chinery Co.,  128  Fed.  753;  supra, 
§341. 

4  See   Eq.   Rule  52. 

6  Ex  parte  Pet-k,  3  Blatehf.  113; 
U.  S.  V.  Tilden,  10  Ben.  566. 

6  Davis  V.  Davis,  90  Fed.  791. 

7  Buckeye  Powder  Co.  v.  Hazard 
Powder  Co.,  2U5  Fed.  827. 

8  Davis  V.  Davis,  90  Fed.  791. 


9  Supra,    §§339,   343. 

10  Perry  v.  Rubber  Tire  Wheel 
Co.,  138  Fed.  836;  Butte  &  B. 
Consol.  Min.  Co.  v.  Montana  Ore 
Purchasing  Co.,  139  Fed.  843 ;  supra. 

11  Ex  parte  Barnes,  1  Sprague, 
133:    Be  Rindskopf,  24  Fed.  .142. 

12  First  Nat.  Bank  v.  Forest,  44 
Fed.   246. 

13  Pennsylvania  Sujiar  Relinin-; 
Co.  v.  Am.  Sugar  Refining  Co.,  171 
Fed.  579. 


1790 


EVIDENCE 


[§354b 


facts.i*  The  court  has  the  power  to  compel  the  opening  of  such 
a  deposition  before  the  trial  upon  the  motion  of  either  party 
against  the  objection  of  the  other.^^ 

It  is  the  safer  practice  to  have  the  witness  sign  his  deposition." 
A  witness  is  not  justified  in  refusing  to  sign  his  deposition  be- 
cause he  claims  that  his  answers  are  incorrect  by  reason  of  his 
misunderstanding  of  the  questions.!^  His  remedy  is  to  insert 
before  his  signature  and  jurat  a  statement  that  upon  reading  the 
transcript  he  now  discovers  that  certain  of  his  answers,  which 
should  be  separately  specified,  are  incorrect  together  with  the 
reason  for  the  inaccuracy.^* 

An  objection  to  the  admissibility  of  such  a  deposition,  upon 
the  ground  that  it  is  not  shown  that  the  witness  is  beyond  the 
reach  of  a  subpoena  at  the  time  of  the  trial,  must  be  made  when 
it  is  offered  in  evidence,  and  will  not  be  considered  when  inter- 
posed for  the  first  time  in  the  court  of  review.^^    An  objection  to 
an  entire  deposition  is  untenable  if  any  part  thereof  is  admitted 
in  evidence-^**    It  has  been  held  that  a  deposition  should  not  be 
suppressed   because   the  witness  refused  to   answer   competent 
questions,  but  that  the  proper  remedy  is  an  order  compelling  the 
witness  to  answer  the  same.^i    Where  such  witness  is  a  defend- 
ant, his  answer  cannot  be  stricken  out  because  of  such  refusal.^^ 
Either  party  may  offer  part  of  the  deposition,  provided  that  it  is 
not  a  fragment  which  cannot  be  understood  without  reference  to 
what  is  omitted.23    In  such  a  case  he  adopts  it  as  his  own  evi- 
dence ^^  and  the   other  party  may  offer  what  was  omitted.^s 
Where  the  taker  of  the  deposition  fails  to  offer  it  in  evidence,  the 
opposing  party  may  offer  all  or  a  part  thereof  and  the  taker 
may  then  put  in  evidence  the  rest.^^    Where  the  witness  is  pres- 
ent upon  the  trial,  and  is  tendered  in  open  court  by  one  party  to 


14  The  Normandie,  40  Fed.  590. 

15  U.  S.  V.  Tilden,  10  Ben.  170. 

16  Thorpe   v.    Simmons,   2    Cranch 
195. 

17  Be  Samuels,  C.  C.  A.,  213  Fed. 
446. 

18  Ibid. 

19  Columbus  Ey.  Co.  v.  Patterson, 
C.  C.  A.,  143  Fed.  245. 

20  Ritterbusch   v.    Atchison,    T.    & 
S.  F.  Ry.  Co.,  198  Fed.  46. 


21  H.  Scherer  &  Co.  y.  Everest,  C. 
C.  A.,  168  Fed.  822. 

22  Barnes  v.  Trees,  194  Fed.  230. 

23  Grotty  v.  Chicago  Great  West- 
ern Ry.  Co.,  C.  C.  A.,  169  Fed.  593. 

24  American  Lumber  &  Mfg.  Co. 
V.  Berthold  &  Jennings  Lumber  Co., 
C.  C.  A.,  233  Fed.  971. 

25  Ibid. 

26  H.  Scherer  &  Co.  v.  Everest,  C. 
C.  A.,  168  Fed.  822. 


§  355] 


FORM  OF  DEPOSITION 


1791 


the  other,  the  hitter  cannot  read  his  deposition,  except  to  impeach 
testimony  then  given  hy  the  witness  orally. 2' 

§355.  Form  of  deposition  under  acts  of  Congress.  Tin- 
deposition  slionld  state,  either  in  its  body  or  in  its  caption,  the 
name  of  the  court  where  the  cause  is  pending:,^  the  title  of  the 
cause,2  and  the  place  where  the  deposition  is  taken.'  If  the 
deponent  reduces  the  deposition  to  writing,  the  magistrate  must 
certify  that  it  was  reduced  to  writing  by  the  deponent  in  his 
presence.*    Consent  may  waive  objection  to  the  person  Avho  takes 


27  Texas  &  P.  Ky.  Co.  v.  WiUlcr, 
C.  C.  A.,  92  Fed.  953;  Texas  &  P. 
Ry.  Co.  V.  Watson,  C.  C.  A.,  112 
Fed.  402. 

§  355.  1  Van  Ness  v.  Heineke,  2 
Cranch,  C.  C.  259. 

2  Peyton  v.  Veiteh,  2  Cranch,  C. 
C.  123;  Smith  v.  Coleman,  2  Cranch, 
C.  C.  237;  Centre  v.  Keene,  2  Cranch, 
C.  C.  198;  Waskern  v.  Diamond, 
Hempst.  701;  Allen  v.  Blunt,  2  W. 
&  M.  121.  But  see  Voce  v.  Law- 
rence, 4  McLean,  203;  Bucking- 
liam  V.  Burgess,  3  McLean,  368; 
Pannill  v.  Eliason,  3  Cranch,  C.  C. 
358;  Merrill  v.  Dawson,  Hempst. 
563;  s.  c.  sub  nam.  Fowler  v.  Mer- 
rill, 11  How.  375,  13  L.  ed.   736. 

S  Pendleton  v.  Forbes,  1  Cranch, 
C.  C.  507;  Tooker  v.  Thompson,  3 
McLean,  92.  A  slight  error  in  the 
caption,  such  as  mistake  in  spell- 
ing the  name  of  a  party.  Van  Ness 
V.  Heineke,  2  Cranch.  C.  C.  259; 
or  the  omission  from  the  title  of 
the  cause  of  the  name  of  one  of 
several  plaintiffs  or  defendants,  is 
not  a  ground  of  suppressing  the  de- 
position. Pannill  v.  Eliason,  3 
Cranch,  C.  C.  358;  Egbert  v.  Citi- 
zens' Ins.  Co.,  7  Fed.  47;  Merritt 
V.  Dawson,  Hempst.  563;  s.  c.  sub 
vnm.  Fowler  v.  Merrill,  11  How. 
375.  See  also  Voce  v.  Lawrence,  4 
McLean,  203.  The  heading  of  the 
notice :     ' '  United  States  of  America, 


State  of  Illinois,  County  of  Cook, 
ss.  In  the  Circuit  Court  of  the 
United  States,"  was  held  not  suflS- 
ciently  irregular  to  avoid  the  depo- 
sition. Gormley  v.  Bunyan,  138  U. 
S.  623,  634,  34  L.  ed.  1086,  1090. 
The  omission  of  the  name  of  the 
county  from  the  caption  is  not  a 
fatal  defect.  Van  Ness  v.  Heineke, 
2   Cranch,  C.   C.   2.59. 

4  Edmonson  v.  Barrel,  2  Cranch, 
C.  C.  228;  Rainer  v.  Haynes, 
Hempst.  689;  Pettibone  v.  Derring- 
er, 4  Wash.  215.  Before  the  amend- 
ment of  May  13,  1900,  it  was  held 
that  the  certificate  should  show  that 
the  magistrate  reduced  the  testi- 
mony in  writing  himself,  or  that  it 
was  done  by  the  witness  in  his  pres- 
ence. Cook  V.  Burnley,  11  Wall. 
659,  20  L.  ed.  29;  U.  S.  v.  Smith,  4 
Day   (Conn.)   121;   Bell  v.  Morrison, 

I  Pet.  351,  355,  7  L.  ed.  174.  176; 
Bussard  v.  Catalino,  2  Cranch,  C.  C. 
421  ;  Donohue  v.  Roberts,  19  Fed. 
863.  Contra,  Vasse  v.  Smith,  2 
Cranch,  C.  C.  31;  Van  Ness  v. 
Heineke,  2  Cranch,  C.  C.  259;  Cen- 
tre V.  Keen,  2  Cranch,  C.  C.  198; 
Elliott  V.  Piersol,  1  Pet.  328,  335, 
7  L.  ed.  164,  168;   Cook  v.  Burnley, 

I I  Wall.  659,  20  L.  ed.  29.  But  see 
Vasse  V.  Smith,  2  Cranch,  C.  C.  31 ; 
U.  S.  V.  Smith,  4  Day  (Conn.),  121  ; 
Marstin  v.  McRae,  Hempst.  688; 
Rainer    v.     Haynes,    Hempst.     689. 


1792 


EVIDENCE 


[§355 


down  the  deposition.^  Consent  may  waive  an  omission  by  the 
witness  to  sign  the  testimony,  which  was  taken  down  in  short- 
hand.^ 

It  has  been  said  that  a  witness,  upon  a  second  examination, 
may  read  over  and  subscribe  as  his  second  deposition,  a  copy  of 
one  formerly  made  by  him  in  the  case.'''  The  objection  that  the 
magistrate  does  not  certify  that  the  deposition  was  signed  by  the 
witness  in  his  presence,  is  not  fatal.*  A  mistake  in  the  name  of 
witness  in  the  notarial  certificate  will  not  make  the  deposition 
inadmissible,  when  the  name  is  correctly  stated  in  the  caption.^ 
The  certificate  should  state  whether  the  parties  were  or  were  not 
present  or  represented,^"  and  show  the  reasons  for  which  the 
deposition  was  taken.^^ 

The  notice  need  not  be  attached  to  the  deposition. ^^ 

Except  under  extraordinary  circumstances,  copies  instead  of 


In  one  case,  a  deposition  was  re- 
jected because  the  magistrate  certi- 
fied that  ''the  form,"  an  evident 
slip  of  the  pen  for  "the  same," 
which  were  the  words  of  the  statute 
then  in  force,  "was  reduced  to  writ- 
ing." Voce  V.  Lawrence,  4  McLean 
203;  Burton  v.  Simmons,  2  Granch, 
0.   C.   195. 

5  Stewart  v.  Townsend,  41  Fed. 
12L 

6  Columbus  Ey.  Co.  v.  Patterson, 
C.  C.  A.,  143  Fed.  245. 

7  Samuel  Bros.  &  Co.  v.  Hostet- 
ter,  C.  C.  A.,  118  Fed.  257,  258, 
259. 

8  "Van  Ness  v.  Heineke,  2  Cranch, 
C.  C.  259;  Centre  v.  Keen,  2  Cranch, 
C.  C.  198.  If  the  deposition  bears 
the  witness'  signature  and  appears 
to  have  been  reduced  to  writing  by 
the  magistrate,  it  is  sufficient,  al- 
though the  certificate  does  not  say 
that  it  was  signed  by  the  witness. 
Bussard  v.  Catalino,  2  Cranch,  C. 
C.  421.  But  see  Cook  v.  Burnley,  11 
Wall.  659,  20  L.  ed.  29;  Donahue  v. 
Hoborts,  19  Fed.  863. 


9  Columbus  Ey.  Co.  v.  Patterson, 
C.  C.  A.,  143  Fed.  245. 

10  Curtis  V.  Eailway  Co.,  6  Mc- 
Lean 401. 

11  Shutte  V.  Thompson,  15  Wall. 
152,  21  L.  ed.  123 ;  Sage  v.  Tauszky, 
6  Cent.  L.  J.  7;  Harris  v.  Wall,  7 
How.  693,  12  L.  ed.  875;  Woodward 
V  Hall,  2  Cranch,  C.  C.  235;  Whea- 
ton  V.  Love,  1  Cranch,  C.  C.  451; 
Jones  V.  Knowles,  1  Cranch,  C.  C. 
523. 

It  has  been  held  that  a  certificate 
sufficiently  shows  the  reason  for 
making  depositions,  if  the  caption  of 
the  deposition  states  when  the  de- 
positions were  taken,  without  giving 
the  distance  from  the  place  of  tak- 
ing to  the  place  of  trial;  where  the 
distance  is  in  fact,  and  is  well 
known  by  all  parties  to  be,  more 
than  one  hundred  miles  from  the 
place  of  trial.  Egbert  v.  Citizens' 
Ins.  Co.  of  Mo.,  7  Fed.  47. 

12  Stewart  v.  Townsend,  41  Fed. 
121. 


§355J 


FORM  OF  DEPOSITION 


1703 


the  originals  of  exhibits  or  so  ninch   tlit-i-fof  as  is  required  hy 
either  party,  must  be  annexed  to  the  deposition. ^^ 

Durins:  the  Great  War  wl^de  tlie  United  States  was  still  at 
peace  with  Germany,  depositions  transmitted  from  Germany  to 
the  State  Department  and  thence  mailed  to  the  court  were  ad- 
mitted.i*  If  the  deposition  is  sent  by  mail,  the  magistrate  should 
certify  that  it  was  retained  by  him  until  sealed  up  and  directed 
to  the  court.^^  The  eertifieate  need  not  state  that  the  deposition 
has  been  sealed,  provided  that  it  appears  by  the  envelope  that 
the  deposition  was  sealed. ^^  If  the  magistrate  have  an  official 
seal  under  which  he  usually  certifies  his  acts,  it  seems  that  this 
certificate  should  be  under  that  scal.^"''  It  seems  that  it  will  be 
presumed  that  he  occupies  the  official  position  which  he  assumes 
in  his  certificate:  ^^  oertaiidy  so  if  he  be  a  notary  public  and  cer- 
tifies under  his  notarial  seal ;  ^^  and  this  may  always  be  proved  In- 
oral  testimony  like  any  other  material  fact.^° 

The  deposition  may  l)e  diret-ted  to  either  the  judge  or  the  clerk 
of  the  court.2^  It  cannot  be  read  in  evidence  if  intentionally 
opened  anywhere  but  in  court,^^  except  when  opened  by  con- 


is  Dancel  v.  Goodyear  Shoe  Ma- 
chinery Co.,  U.  S.  C.  C,  D.  Mass., 
1905,  in  -which  the  writer  was  coun- 
sel. For  a  case  where  a  tabulation 
was  annexed  instead  of  the  books 
themselves,  see  Columbia  Knicker- 
bocker Trust  Co.  V.  Abbott,  C.  C.  A., 
247  Fed.  833.  See  Illinois  Car  &  Eq. 
Co.  V.  Linstroth  Wagon  Co.,  C.  C.  A., 
112  Fed.  737;  U.  S.  R.  S.,  §869. 

14  Birge-Forbes  Co.  v.  Heye,  C. 
C.  A.,  248  Fed.  636. 

16  Shankwiker  v.  Reading,  4  Mc- 
Lean 240;  Jones  v.  Neale,  1  Hughes, 
268.  But  see  Stewart  v.  Townsend, 
41  Fed.  121. 

16  Egbert  V.  Citizens'  Ins.  Co.  of 
Mo.,  7  Fed.  47,  .lO.  Tf  the  deposi- 
tion is  sealed  up  with  tlio  seal  of 
a  corporation,  across  which  are 
written  the  name  or  the  names  of 
the  )MTson  or  ]>('rs()ns  who  took  tlic 
deposition,  it  is  siillicient.  lu  Thdiii 
as,   3r)   Fed.    .".:!7. 


17  Paul  V.  Lowry,  2  Cranch,  C. 
C.  628.  But  see  Price  v.  ^Tnrris, 
5  McLean  4. 

18  Ruggles  V.  Bucknor,  1  Paine, 
358;  Price  v.  Morris,  5  McLean  4; 
Vasse  V.  Smith,  2  Cranch,  C.  C.  31 : 
Whitney  v.  Huntt,  5  Cranch,  C.  C. 
120.  But  see  Tooker  v.  Thompson. 
:!  McLean  92. 

19  Dinsmore  v.  Maronoy.  4 
Hlatchf.   416. 

20  Paul  V.  Lowry,  2  Crandi,  C.  C. 
62S;  Dunlop  v.  Munroe,  1  Cranch. 
C.  C.  536. 

21  Tliorp  V.  Orr,  2  Cranch,  C.  C. 
:;35;  Wliitney  v.  Huntt,  5  Cranch. 
C.  C.  120. 

22  Beale  v.  Thompson,  8  Cranch, 
7n:  The  Rosciiis,  1  Brown.  Adin. 
4-12;  h'r  Tliomas,  35  PVd.  337.  The 
Mcciilcntal  opening  in  the  mail  of 
;iii  envelope  containing  a  deposition 
t:il:(n  by  a  coniniission  under  Rnl,' 
(i7    does    not    authorize    the    suppres 


1794 


EVIDENCE 


[§355 


s>ent,  wliieli  it  will  be  Avell  to  have  appear  by  writing  duly  signed 
and  filed  with  or  indorsed  on  the  deposition.^^  Where  the  cer- 
tificate fails  to  state  certain  material  facts,  by  leave  of  the  court 
the  deposition  may  be  withdrawn  from  the  clerk's  office,  the 
certificate  amended,  and  the  deposition  then  refiled.^* 

If  an*  attorney  appear  and  cross-examine  a  witness  without 
objection,  he  thereby  waives  any  lack  of  notice,  or  irregularity 
in  the  notice,^^  or  in  the  form  and  manner  of  the  proceedings,^^ 
or,  it  seems  an  incompetency  in  the  witness  then  known  to  him,^'^ 
or  any  other  formal  defect.  His  presence,  however,  if  he  declines 
to  take  any  part  in  the  proceedings,  does  not.^^  It  is  the  safer 
and  the  usual  practice  for  the  counsel  present  to  note  on  the 
record  all  objections  to  the  form  of  questions ;  and  to  the  admis- 
sion of  an  exhibit ;  and  a  failure  to  note  such  an  objection  might 
be  held  to  be  a  waiver  by  a  party  who  was  present  or  represented 
at  the  examination.29  The  matter  objected  to  should  be  specifi- 
cally pointed  out,  and  the  grounds  of  the  objection  stated.^" 

Irregularities  are  waived  by  consent  to  open  depositions  ' '  with- 
out prejudice  to  any  objections  to  the  inclosed  deposition  other 
than  relating  to  publication  and  opening,  which  is  hereby 
waived.  "31  An  objection  to  the  failure  of  a  witness  to  produce 
a  paper  to  which  he  referred,  or  which  was  called  for,  can  only 
be  made  by  a  motion  to  suppress  the  deposition.^^  In  general, 
all  defects  in  form  ^3  or  to  the  competency  or  relevancy  of  evi- 


sion    of   the    deposition.      Eillert   v. 
Craps,  44  Fed.  164. 

23  The  Roseius,  1  Brown  Adm.  442. 

24  Gartside  Coal  Co.  v.  Maxwell, 
20  Fed.  187;  Donahue  v.  Roberts,  19 
Fed.  683;  Leatherberry  v.  Radcliffe, 
5  Craneh,  C.  C.  550. 

25  Dinsmore  v.  Maroney,  4  Blatchf. 
416. 

Thompson,    15   Wall. 
123;   Be  Thomas,  35 


26  Shutte  V. 
152,  21  L.  ed. 
Fed.  822. 

27  U.  S.  V. 
400. 

28  Harris  v. 
L.  ed.   875. 

29  C/.      Equity    Rule    49;     S.    C. 
Rule    13.      Illinois    Car    &    Eq.    Co. 


One    Case,    1    Paine 
Wall,  7  How.  693,  12 


V.  Linstroth  Wagon  Co.,  C.  C.  A., 
112  Fed.  737;  Persons  v.  Beling, 
116  Fed.  877. 

30  Persons  v.  Beling,  116  Fed.  877. 

31  Stewart  v.  Townsend,  41  Fed. 
121. 

32  Blackburn  v.  Crawford,  3  Wall. 
175,  18  L.  ed.  186;  Winans  v.  N.  Y. 
&  E.  R.  Co.,  21  How.  88,  16  L.  ed.  68. 
As  to  the  transmission  and  identifi- 
cation of  exhibits,  see  Giles  v.  Pax- 
sen,  36  Fed.  882;  Bird  v.  Halsy,  87 
Fed.  671;  U.  S.  v.  Fifty  Boxes,  92 
Fed.  601. 

33Claxton  v.  Adams,  1  MacA.  (D. 
C.)  496;  Bank  of  Danville  v.  Trav- 
ers,  4  Biss.  507;  Brooks  v.  Jenkins, 
3  McLean  432;  Uhle  v.  Burnham,  44 


}$  356]  DEDIMUS    POTESTATEM  1795 

donee  3*  can  only  be  raised  l)y  a  motion  to  snppre.ss  the  deposi- 
tion, wliieh  is  seasonably  made  before  tiie  ease  is  called  for 
trial,36  and  the  court  may,  and  usually  will,  when  such  a  motion 
is  granted,  allow  an  adjournment  of  tlie  hearing  in  order  that 
the  testimony  may  be  taken  again,  provided  that  the  objection 
can  then  be  obviated.^^ 

The  denial  of  such  a  motion  is  no  ground  for  the  reversal  of  a 
judgment  at  common  law,  unless  upon  the  trial  an  objection  is 
duly  made  1o  the  admission  of  the  evidence  and  an  exception 
taken. 3''' 

It  has  been  held  to  be  pro])cr  for  one  of  the  counsel  for  the 
party  introducing  the  deposition  to  stand  at  the  bar  and  read 
the  questions  and  another  to  sit  in  the  witness  chair  and  read 
the  answers.'* 

§356.  Commissions  issued  under  a  dedimus  potestatem. 
The  Revised  Statutes  provide  that  "in  any  case  where  it  is  neces- 
sary, in  order  to  prevent  a  failure  or  delay  of  justice,  any  of  the 
courts  of  the  ITnited  States  may  grant  a  dedimus  potefstntem  to 
take  depositions  according  to  common  usage."  "And  the  pro- 
visions of  sections  eight  hundred  and  sixty-three,  eight  hundred 
and  sixty-four,  and  eight  hundred  and  sixty-five  shall  not  apply 
to  any  depositions  to  be  taken  under  the  authority  of  this  sec- 
tion." ^  This  statute  applies  to  criminal  prosecutions,^  informa- 
tions for  forfeitures,'  actions  at  law.^  and  cases  in  ecpiity.^ 

Fed.  729,  730;   Howard  v.  Stillwoll,  38  Vafraszki   v.   Consolidation   Coal 

B.  M.  Co.,  139  U.  S.  199,  35  L.  ed.       Co.,  C.  C.  A.,  225  Fed.  913,  ia  which 
147;    Bibb  V.  Allen,  149  U.  S.  481,       the  writer  was  counsel. 

488,    37    L.    ed.    819,    822;    Samuel    "       §356.     1 U.  S.  R.  S.,  §  866;  Jones 

Bros.  &  Co.  V.   Hostetter,  C.  C.   A.,  v.  Oregon  C.  R.  Co.,  3  Sawyer.  523; 

118    Fed.    257.      See    Dickerson    v.  North    AineriL-an    Transportation    & 

Matheson,  50  Fed.  73,  75.  Tr.    Co.    v.    Howells,    C.    C.   A.,    121 

34  Ward  v.   Cochran,  C.  C.   A.,  71  Fed.   694. 

Fed.  127.  2  U.  S.  v.  Fifty  Boxes  and   Pai-k- 

36  Bibb  V.   Allen,   149   V.   S.  481,  ages  of  Laee,  92  Fed.  601. 

488,  37  L.  ed.  819,  822.  3  U.  S.  v.  Cameron,  15  Fed.  794; 

36  Luther  v.  The  Merritt  Hunt,  1  U.  S.  v.  Wilder,  14  Fed.  393. 
Newb.    Adm.    4;    Doe    d.    Moore    v.  4  Peters   v.   Provost.   1    Paine,   64. 
Nelson,  3  McLean,  383.  6  BischofTsclioim     v.     Haltzer,      in 

37  Union   Pac.    Ry.    Co.    v.    Reese,  Fed.  1. 

C.  C.  A.,  56  Fed.  288.  Cf.  Zych 
V.  Am.  Car  &  Foundry  Co.,  127 
Fed.  723. 


179G 


EVIDENCE 


S356 


The  words  "common  usage/'  when  applied  to  a  suit  in  equity, 
signify  the  ordinary  practice  of  courts  of  equity.^  It  has  been 
held  that  the  usage  referred  to  is  the  common  usage  at  the  time  of 
the  revision  of  the  Statutes  of  the  United  States  in  1874 ;  ^  that 
it  does  not  direct  the  Federal  courts  to  adopt  all  subsequent  laws 
of  the  States  wherein  they  sit ;  ^  and  where,  prior  to  1874,  the 
Federal  courts  within  a  district  had  adopted  a  practice  of  their 
own,  such  practice  may  be  continued ;  ^  that  accordingly  in  the 
Southern  District  of  New  York,  those  courts,  even  when  sitting 
at  common  law,  are  not  bound  by  the  sections  of  the  State  Code 
of  Civil  Procedure  regulating  the  execution  of  commissions  to 
take  testimony  in  foreign  countries,  l)ut  may  take  them  in  ac- 
cordance with  the  old  practice  in  the  district  upon  written  direct 
and  cross-interrogatories ;  and  when  the  answers  of  the  witnesses 
are  in  a  foreign  language,  they  may  be  translated  by  the  commis- 
sioner or  under  his  direction,  and  only  the  answer,  as  thus  in- 
terpreted, be  returned ;  ^^  but  that  in  districts  where  there  is  no 
settled  practice  the  State  practice  should  be  followed.^^ 

In  a  case  of  doubtful  authority,  the  condition  that  a  safe  con- 
duct be  furnished  to  the  plaintiff  was  inserted  in  an  order  for  a 
commission  to  examine  witnesses  on  the  part  of  the  defendant 
in  a  foreign  country, ^^  but  a  commission  to  prove  documents  was 
allowed  without  such  a  condition.^^ 

Depositions  may  be  taken  under  this  section  of  the  Revised 
Statutes,  even  though  the  witness  live  within  one  hundred  miles 
of  the  court  where  the  cause  is  pending ;  ^^  or  in  a  country  with 
which  the  United  States  are  at  war.^^ 

Such  a  commission  is  not  granted  as  of  course,  but  only  upon 
good  cause  shown. ^^     The  application  will  ordinarily  be  denied 


6U.   S.  V.   Parrott,   1  McAU.  447. 

7  U.  S.  V.  Fifty  Boxes  and  Pack- 
ages of  Lace,  92  Fed.  601. 

8  Ibid. 

9  Ibid. 

10  Ibid. 

11  Ibid.;  Buddicum  v.  Kirk,  3 
Cranch,  293,  2  L.  ed.  444;  Joues  v. 
Eailroad  Co.,  3  Sawyer,  523;  s.  c, 
Fed.    Cas.    No.    7,486. 

12  Hollander  v.  Baiz,  40  Fed.  659. 
For  a  case  where  a  commission  was 


issued  to  examine  an  expert  in  a 
foreign  country,  see  HoUiday  v. 
Scluiltzeberge,  57  Fed.  660. 

13  Hollander  v.  Baiz,  43  Fed.   35. 

14Wellford  v.  Miller,  1  Cranch, 
C.  C.  485;  Eussell  v.  M'Lellan,  3 
W.   &  M.   157. 

15  Peters  v.  Provost,  1  Paine,  64. 

16  U.  S.  V.  Parrott,  1  McAU.  447 ; 
Magoue  v.  Colorado  Smelting  & 
Min.  Co.,  135  Fed.  846.  An  appli- 
cation for  a  dcdimus  potestatem  to 


§  356] 


DEDIMUS    POTESTATEM 


1797 


when  the  testimony  can  be  taken  de  bene  esse,  under  Section  863 
of  the  Revised  Statutes."  The  application  must  be  made  in  open 
court,  and  not  to  a  judge  at  chambers;  ^^  and  must  be  accompa- 
nied by  an  affidavit  showing;  that  the  testimony  which  the  party 
desires  to  take  is  material. ^^  It  seems  that  the  commission  need 
not  specify  the  exact  place  where  the  depasitions  are  to  be  taken ; 
but  if  it  do,  the  commissioners  should  conform  to  it  in  that  re- 
spect-^^*  Whether  a  party  will  or  will  not  be  required  before  the 
commission  is  issued  to  name  the  witnesses  to  be  examined  under 
it,  depends  upon  the  discretion  of  the  court,  to  1)e  exercised  under 
the  circumstances  of  each  case.^i  j^  ^a^  been  held  in  equity  that 
either  party  has  the  right  to  have  the  testimony  taken  orally ;  22 
unless,  for  special  reasons,  the  court  orders  it  to  be  taken  upon 


take  testimony  before  trial  alleged: 
that  the  action  was  to  recover  dam- 
ages   for    the    negligent    death    of 
plaintiff 's  father,  and  that  plaintiffs 
were  non-residents  and  minors;  that 
the   negligence   alleged   consisted   in 
defendant's   failure   to   instruct   de- 
ceased regarding  the  dangers  of  his 
employment,  he  being  ignorant  and 
illiterate;  that  the  only  persons  who 
could   give   information   as  to   dece- 
dent's death,  and  the  rules  and  reg- 
ulations under  which  decedent's  busi- 
ness   was    conducted    at    the    time, 
were  persons  in  defendant's  employ, 
and  that  the  truth  of  the  allegations 
of  plaintiff's  complaint  must  neces- 
sarily   be    established   by    the    testi- 
mony of  defendant's  servants;   that 
defendant    had    refused    to    permit 
plaintiff's    representatives    to    enter 
its  works  and  examine  the  place  of 
the  accident,  and  that  at  the  inquest 
over    deceased's    remains    tive    eye- 
witnesses   testified,    two    of    whom, 
since     the     accident,    had    left    the 
State;  that  plaintiffs  were  unable  to 
ascertain  their  whereabouts   or  that 
of  another  of  such  eyewitnesses  and 
that    plaintiffs    verily    believe    there 
is    danger    of    losing   the    testimony 
Fed.  I'rac.  Vol.  11—43 


of  other  important  witnesses  through 
death,  disease,  or  accident.  Helil 
that  such  allegations  were  suflScient 
to  entitle  plaintiffs  to  the  relief 
demanded  under  U.  S.  R.  S.,  §  86G 
(U.  S.  Comp.  St.  1901,  p.  663), 
authorizing  the  taking  of  deposi- 
tions of  witnesses  in  order  to  pre- 
vent a  failure  or  delay  of  justii-e. 
Zy«'h  V.  Am.  Foundry  Co.,  127  Fed. 
723. 

17  Henning  v.  Boyle,  112  Fed.  397. 

18  Peters  v.  Provost,  1  Paine,  64. 

19  Sutton  V.  Mandeville,  1  Cranch, 
O.  C.  115;  U.  S.  V.  Parrott,  1  Me  All. 
447. 

ZORhoades  v.  Selin,  4  "Wash.  7ir). 

21  Parker  v.  Nixon,  Baldw.  291. 
An  order  authorizing  the  examina- 
tion of  witnesses  not  named  in  the 
commission  was  granted  by  Mayer, 
J.,  in  U.  S.  D.  C,  S.  D.  N.  Y.,  Feb- 
ruary 15,  1913. 

22  Bischoffscheim  v.  Baltzer,  10 
Fed.  1;  Edison  El.  Co.  v.  Westing- 
house,  Church,  Kerr  &  Co.,  138  Fed. 
460;  Encyclopaedia  Britanica  Co.  v. 
Werner  Co.,  138  Fed.  461;  Mary- 
land Tr.  Co.  V.  Kirby  Lumber  Co., 
149  Fed.  443. 


J79S  EVIDENCE  [§  356 

written  interrogatories ;  ^3  that  the  defendants  may  be  permitted 
to  cross-examine  orally,  although  the  complainants  have  filed 
interrogatories ;  2*  but,  in  that  case,  the  complainants  will  be 
given  leave  to  withdraw  their  interrogatories  and  to  examine 
their  witness  orally.^^  In  the  Southern  District  of  New  York,  a 
dedimus  potestwtem  to  examine  witnesses  in  admiralty  may  pro- 
vide for  oral  examination  or  for  written  interrogatories  or  for 
the  application  of  the  former  method  to  witnesses  in  a  party's 
employ  and  of  the  latter,  to  witnesses  presumably  disinter- 
ested.26 

When    testimony    was    taken    in    a    remote    jurisdiction- 
Texas,    the    suit    pending   in    the    Southern    District    of  New 
York— it  was  held  that  the  counsel  for  the  other  side  might  in- 
terpose their  objections  to  the  testimony  and  prepare  their  cross- 
interrogatories,  after  the  direct  testimony  had  been  returned ;  or 
that,  if  they  then  elected  to  cross-examine  orally,  the  witness 
must,  on  reasonable  notice,  be  produced  for  such  cross-examina- 
tion-^'    Before  the  issue  of  the  commission,  the  proposed  inter- 
rogatories should  be  filed  2»  and  served  upon  the  opposite  party 
or  his  attorney ;  ^9  and  the  latter  given  a  reasonable  time,  usually 
fixed  by  the  court,  within  which  to  object  to  them  and  to  file 
cross-interrogatories.3*>    If  he  omit  to  do  so,  the  commission  may 
be   issued    without    further   notice.^i      The   interrogatories    are 
drawn  up  substantially  as  those  for  the  examination  of  witnesses 
within  the  jurisdiction  of  the  court.32     Objections  to  interroga- 
tories or  cross-interrogatories  should  be  in  the  form  of  exceptions 
to  them,  and   must  be  filed  before  the   commission  issues;   or 

83  Bischoff scheim    v.    Baltzer,    10  29  Ehoades  v.  Selin,  4  Wash.  715; 

Fed.    1;     Compania    Azucarera    Cu-  Merrill    v.    Dawson,    Hempst.    563; 

bana  v.  Ingraham,  Maxwell  &  Beals,  s.  c.  sub  nom.    Fowler  v.  Merrill,  11 

180  Fed.  516.  How.   375,  13  L.  ed.  736. 

24  Edison  El.  Co.  v.  Westing-  30  Frevall  v.  Bache,  5  Cranch,  C. 
house,  Church,  Kerr  &  Co.,  138  Fed.  C.  463;  The  Norway,  1  Ben.  493. 
460;  Encyclopaedia  Britanica  Co.  v.  Leave  to  cross-examine  orally  will 
Werner  Co.,  138  Fed.  461.  rarely  be  given.     Coates  v.  Merrick 

25  Edison  El.  Co.  v.  Westinghouse,  T.  C,  41  Fed.  73. 

Church,   Kerr  &  Co.,   138  Fed.  460.  31  Cocker   v.    F.    H.    &    B.    Co.,    1 

26  The  Titanic,  206  Fed.  500.  Story,  169. 

27  Maryland  Tr.  Co.  v.  Kirby  32  Rhoades  v.  Selin,  4  Wash.  715. 
Lumber  Co.,  149  Fed.  443. 

28  Cunningham    v.    Otis,    1     Gall. 
166. 


§357] 


PROCEEDINGS    UNDEK    UEDIMUS    I'OTESTATEM 


1799 


otherwise  will  be  held  waived. ^^  If  the  parties  cannot  agree  as 
to  their  form  or  substance,  a  reference  may  be  ordered  to  a 
master,  whose  report  will  be  reviewed  by  the  court.'*  If  there  be 
any  doul)t  as  to  the  relevancy  or  propriety  of  an  interrogatory, 
the  ultimate  decision  thereon  will  be  reserved  until  the  hearing, 
and  it  will  be  allowed  to  stand  and  be  answered.  If  there  be  no 
doubt  as  to  its  irrelevancy  or  impropriety,  it  will  be  stricken  out 
before  the  commission  issues.'^ 

A  commission  must  also  name  oi-  designate  the  commissioner 
or  commissioners.'^  A  woman  may  be  a  commissioner,  even 
though  she  be  the  wife  of  the  witness  to  be  examined.''  The 
court  may  grant  an  order  that  exhibits  annexed  to  a  deposition 
already  taken  may  be  removed  from  the  file  and  attached  to  a 
commission,  i)rovided  that  copies  of  tlicm  arc  left  in  their  place." 

§357.  Proceedings  under  a  dedimus  potestatem.  If  the  ap- 
plication does  not  state  wlien  and  where  the  commission  is  to  be 
executed,  the  party  at  whose  instance,  or  the  commissioner  to 
whom  it  is  issued,  should  notify'  the  adverse  party  or  his  solicitor 
before  the  depositions  are  taken. ^  The  notice  should  name  the 
year  as  well  as  the  day.''  When,  however,  a  party,  after  notice 
of  an  opportunity  to  do  so,  has  neglected  to  file  cross-interroga- 
tories, no  further  notice  to  him  is  necessary.'  The  notice  should 
be  served  pei-sonally,  or  else  left  at  the  house  of  the  person  ujioii 
whom  it  is  made  with  a  member  of  his  family  of  sufficient  intel- 
ligence.*   The  person  with  whom  it  is  left,  however,  need  not  be 


33  Cocker  v.  F.  H.  &  B.  Co.,  1 
Story.   169. 

34  Cocker  v.  F.  H.  &  B.  Co.,  1 
Story,  169;  Bondereau  v.  Montgom- 
ery, 4  Wash.  186. 

36  Cocker  v.  F.  H.  &  B.  Co.,  1 
Story,  169. 

36  Vanstophtfrst  v.  Maryland,  2 
Ball.  401,  1  L.  ed.  433.  A  slight 
error  in  spelling  the  commissioner's 
name  will  not  vitiate  proceedings 
under  the  commission  provided  it 
clearly  appears  that  the  adverse 
j)arty  was  not  misled  thereby.  Bibb 
v.  Allen,  149  U.  S.  481,  488,  37  L. 
ed.  819,  822;  Keene  v.  Meade,  3 
Peters,  1,  6,  7  L.  ed.  581,  583. 


37  The  Norway,  2  Ben.  121. 

38  Daly  v.  Maguire,  6  Blatchf. 
137. 

§  357.  1  Ehoades  v.  Selin,  4  Wash. 
715;  Knode  v.  Williamson,  17  Wall. 
586;  Merrill  v.  Dawson,  Hempst. 
.563;  s.  c.  sub  nom.  Fowler  v.  Mer- 
rill, 11  How.  375,  13  L.  ed.  736; 
Dunlop  V.  Monroe,  1  Craneh.  C.  C. 
536.     See  infra.  §  353a. 

8  Knode  v.  Williamson,  17  Wall. 
586,  13  L.  ed.  736. 

3  Merrill  v.  Dawson,  Hempst.  56.!; 
.s.  c.  sub  nom.  Fowler  v.  Merrill,  1 1 
How.  37.5,  13  L.  ed.  736. 

4  Merrill  v.  Dawson,  Hempst.  563; 
s.  c.  sub  nam.  Fowler  v.  Merrill.  11 
How.  375,  13  L.  ed.  736. 


1800 


EVIDENCE 


[§357 


informed  of  its  purport.^  Service  by  mail,  unless  actually  re- 
ceived in  time,  is  insufficient.^  An  hour's  notice  of  the  time  of 
taking-  a  deposition  in  the  place  where  the  attorney  to  whom  it 
is  given  dwells,  has  been  held  sufficient.' 

The  regulation  of  the  proceedings  under  a  commission  is  a  mat- 
ter in  the  discretion  of  the  court  issuing  it.*  A  commissioner 
is  appointed  by  and  represents  the  court ;  and  is  no  more  the  rep- 
resentative of  the  party  nominating  him,  than  is  an  arbitrator.^ 
The  authority  given  to  a  commissioner  is  special,  and  must  be 
strictly  construed.^®  A  commission  issued  to  more  than  one  com- 
missioner must  be  executed  and  returned  by  all  of  them,!^  unless 
it  is  otherwise  so  provided  in  it ;  ^^  and  if  any  one  else,  except  a 
judge  in  a  foreign  country  whose  laws  do  not  permit  a  private 
individual  to  take  testimony  alone,"  join  in  its  execution  or 
return,  the  testimony  taken  under  it  will  also  be  suppressed." 

A  commission  must  be  executed  at  the  time  and  place  named  in 

it,  or  in  the  notice.^^ 

When  the  deposition  was  taken  by  written  interrogatories  it 
has  been  held  that  the  witnesses  under  such  a  commission  should 
be  examined  alone ;  and  the  parties  are  not  allowed  to  be  present 
either  in  person  or  by  attorney,  unless  the  court  otherwise  di- 
rects.^^    The  interrogatories  may  be  shown  the  witness  before  he 


6  M 'Call  V.  Towers,  1  Craiich,  C. 
C.  41. 

6  Walker  v.  Parker,  5  Cranch,  C. 
C.  639. 

7Nicholls  V.  White,  1  Cranch,  C. 
C.  59. 

8  Cunningham  v.  Otis,  1  Gall.  166. 

9  Jones  v.  Oregon  C.  R.  Co.,  3 
Saw.  523;  Gilpins  v.  Consequa,  Pet. 
C.  C.  85;  Guppy  v.  Brown,  4  Dall. 
410,  1  L.  ed.  887. 

10  Guppy  V.  Brown,  4  Dall.  410, 
1  L.  ed.  887;  Armstrong  v.  Brown, 
1  Wash.  43 ;  Boudereau  v.  Montgom- 
ery,  4   Wash.   186, 

11  Guppy  V.  Brown,  4  Dall.  410,  1 
L.  ed.  887;  Armstrong  v.  Brown,  1 
Wash.  43;  Mimns  v.  Dupont,  3 
Wash.  C.  C.  31. 


12  The    Griffin,    4    Blatchf.    203; 
Lonsdale  v.  Brown,  3  Wash.  404. 

13Winthrop  v.  Union  Ins.  Co.,  2 
Wash.   7. 

14Willings  v.  Consequa,  Pet.  C. 
C.  301;  Barnet  v.  Day,  3  Wash.  243. 

IBEhoades  v.  Selin,  4  Wash.  715; 
Boudereau  v.  Montgomery,  4  Wash. 
186;  Knode  v.  Williamson,  17  Wall. 
586,  21  L.  ed.  670;  Buddicum  v. 
Kirk,  3  Cranch,  293,  2  L.  ed.  444. 
As  to  waiver,  see  Gartside  Coal  Co. 
V.  Maxwell,  20  Fed.  187. 

16  Cunningham  v.  Otis,  1  Gall.  166. 
But  see  Knode  v.  Williamson,  17 
Wall.  586,  21  L.  ed.  670;  Merrill  v. 
Dawson,  Hempst.  563 ;  s.  c.  mb  nom. 
Fowler  v.  Merrill,  11  How.  375,  13 
L.  ed.  736. 


§357] 


PROCEEDINGS    UNDER    DEDIMUS    POTESTATEM 


1801 


is  called  upon  to  give  his  testimony.^"''  lie  must  be  examined  as 
to  such  interrogatory  and  cross-interrogatory;  and  if  he  improp- 
erly omits  to  answer  any  one  of  them ;  or  if  any  one  of  them,  an 
answer  to  which  would  be  legal  evidence,  is  not  put  to  him,  his 
whole  deposition  may  be  suppressed  at  the  instance  of  the  party 
who  miglit  ))e  tliereby  injured. ^^  If,  however,  the  depositions 
have  been  issued  ex  parte,  the  adverse  party  having  omitted  to 
file  cross-interrogalories  after  an  opportunity  to  do  so  has  been 
given  him,  it  has  been  said  that  as  many,  or  as  few,  of  these  inter- 
rogatories as  the  party  who  filed  them  thinks  proper  may  be  put, 
provided  that  the  general  interrogatory  is  not  omitted. i®  If  the 
cross-interrogatories  are  put,  it  makes  no  difference  how  soon 
after  the  direct  interrogatories  have  been  answered  the  witness 
is  called  upon  to  answer  them.^®  No  additional  interrogatories, 
however,  can  be  filed  Avith  or  put  by,  or  liefore,  the  commis- 
sioner.^^ 

Under  extraordinary  circumstances  the  examination  of  a  wit- 
ness not  named  in  the  commission  might  be  pcrmitted.^^ 

The  deposition  may  be  taken  down  in  writing  either  ])y  the 
magistrate  or  by  the  deponent  in  the  presence  of  the  magis- 
trate ;  23  but  not  by  the  counsel  for  either  of  the  parties.'^*  If  ex- 
hibits are  referred  to  by  the  witness,  they  should  be  annexed  to 
the  deposition  or  identified  by  marks  or  reference.^^  A  paper 
referred  to  by  a  witness,  but  which  is  neither  in  his  own  power 
nor  in  that  of  the  party  making  the  objection,  need  not,  however. 


17  North  Carolina  R.  Co.  v.  Drew, 
3  Woods,  691. 

ISKetland  v.  Bissett,  1  Wash. 
144 ;  Nelson  v.  U.  S.,  Pet.  C.  C.  235 ; 
Winthrop  v.  Union  Ins.  Co.,  2  Wash. 
7;  Bell  V.  Davidson,  3  Wash.  C.  C. 
328;  Richardson  v.  Golden,  3  Wash. 
C.  C.  109;  Dodge  v.  Israel,  4  Wash. 
323;  Gilpins  v,  Consequa,  Pet.  C.  C. 
85;  s.  c,  3  Wash.  184.  But  see  Gass 
V.  Stinson,  3  Sumn.  98. 

19  Merrill  v.  Dawson,  Henipst. 
5fi;!,  .s.  c.  sub  vnm.  Fowler  v.  Mer- 
rill, 11   How.  375,  13  L.  ed.  736. 

20  Gilpins  v.  Consequa,  Pet.  C.  C. 
85;    s.  c,  3  Wash.  184. 


21  Cunningham  v.  Otis,  1  Gall. 
166;  Merrill  v.  Dawson,  Hempst. 
563;  s.  c.  s^ih  noin.  Fowler  v.  Mer- 
rill, 11  How.  375,  13  L.  ed.  736. 

22  The  Infanta,  Abbott's  Adm. 
263.    See  §  356,  supra. 

23Stockwell  V,  U.  S.,  3  Cliff.  284; 
Keene  v.  Meade,  3  Pet.  1,  7  L.  ed. 
581 ;  s.  c.  sub  nom.  Meade  v.  Keane, 
3  Cranch,  C.  C.  51. 

24  U.  S.  V.  Pings,  4  Fed.  714.  But 
see  Nicholls  v.  White,  1  Cranch,  C. 
C.  59;  Atkinson  v.  Glenn,  4  Cranch, 
C.  C.  134. 

26  Dodge  V.  Israel,  4  Wash.  323. 


1802 


EVIDENCE 


[§357 


be  included  in  the  deposition  or  thus  identified.^^  The  better 
practice  ordinarily  seems  to  be  to  annex  copies  of  the  exhibits  to 
the  deposition.^'''  It  has  been  held  that  the  deposition  need  not 
be  signed  b}'  the  witness.^^  A  deposition  prepared  and  signed 
some  time  before  the  oath  is  administered  is  improper  and  will 
be  suppressed. 2^  The  depositions  should  be  attached  to  the  com- 
mission, and,  with  them,  a  certificate  by  all  the  commissioners 
that  they  have  complied  with  the  statutory  requirements  above 
described.  The  commission  should  then  be  sent  or  delivered  to 
the  clerk's  office  of  the  court  unopened,  and  must  there  remain 
so  till  publication  is  allowed  by  order  or  consent.^**  The  fact  that 
it  was  forwarded  througli  the  embassy  mail-bag  first  to  Wash- 
ington, and  thence  to  the  clerk,  does  not  invalidate  the  proceed- 
ings.^^ The  return,  or  certificate,  of  the  commissioners  should 
state  that  they  were  sworn,  unless  that  ceremony  has  been  waived, 
or  they  are  officers  qualified  to  administer  an  oath.^^  The  return 
should  also  state  the  time  and  place  of  taking  the  depositions;  *^ 
that  each  witness  was  sworn  or  affirmed,  but  not  that  he  was  cau- 
tioned ;  nor  need  it  state  the  form  of  the  oath.^*  The  return  need 
not  state  in  whose  handwriting  the  depositions  were  taken 
down ;  ^*  nor,  if  the  witness  was  an  alien,  whether  or  not  he  was 
examined  by  means  of  an  interpreter ;  ^^  nor  that  it  was  sub- 
scribed by  a  sworn  interpreter,  when  it  states  that  the  interpreter 
was  sworn  and  every  page  is  subscribed  by  a  signature  purport- 


26  Winans  v.  New  York  &  Erie  R. 
Co.,  21  How.   88,  16  L.  ed.  68. 

27  U.  S.  R.  S.,  §  869 ;  quoted  supra, 
§342. 

28Ketland  v.  Bissett,  1  Wash. 
144. 

29  Dodge  V.  Israel,  4  Wash.  32.3; 
North  Carolina  R.  Co.  v.  Drew,  3 
Woods,   691. 

30  Boudereau  v.  Montgomery,  4 
Wash.  186;  Prevail  v.  Bach,  5 
Cranch,  C.  C.  463;  U.  S.  v.  Price, 
2  Wash.  356. 

31  U.  S.  V.  Fifty  Boxes  and  Pack- 
ages of  Lace,  92  Fed.  601.  See 
Birge-Forbes  Co.  v.  Heye,  C.  C.  A., 
248    Fed.    636;    su.pra,    §3.55. 

32  Prevail   v.   Bach,   5   Cranch,   C. 


C.  463 ;  Hoyt  v.  Hammekin,  14  How. 
346,  14  L.  ed.  449.  But  see  Gilpins 
V.  Consequa,  Pet.,  C.  C.  85;  s.  c,  4 
Wash.  184. 

33Rhoades  v.  Selin,  4  Wash.  715; 
Boudereau  v.  Montgomery,  4  Wash. 
186. 

34  Jones  v.  Oregon  C.  R.  Co.,  3 
Saw.  523;  Keene  v.  Meade,  3  Pet. 
1,  7  L.  ed.  581;  s.  c.  suh  nom.  Meade 
V.  Keane,  3  Cranch,  C.   C.  51. 

35  Keene  v.  Meade,  3  Pet.  1,  7  L. 
ed.  581;  s.  c.  sub  nom.  Meade  v. 
Keane,  3  Cranch,  C.  C.  51;  Jones  v. 
Oregon  C.  R.  Co.,  3  Saw.  523. 

36  Gilpins  v.  Consequa,  Pet.  C.  C. 
85;   s.  c,  3  Wash.  184. 


§358]  l-ETTERS    KouAloKH  1803 

ing  to  be  that  of  the  interpreter ;  ^'^  nor,  it  lias  been  held,  need 
the  answers,  when  an  interpreter  was  used,  be  transmitted  in  the 
foreign  language  of  the  witness  as  well  as  in  the  translation.'* 
The  certificate  will  be  presumptive  evidence  of  the  facts  therein 
stated  in  relation  to  the  execution  of  the  commission.'® 

Subpoenas  for  the  witnesses  are  issued  by  the  clerk  of  a  court 
of  the  United  States  in  the  district  where  the  commission  is  exe- 
cuted.*'' Subpa'nas  duces  tecum  can  only  be  issued  by  the  order 
of  a  judge  of  such  a  court.*^  Otherwise,  proceedings  under  these 
commissions  should  conform  substantially  to  those  under  com- 
missions to  examine  witnesses  within  ihc  jurisdiction  of  the 
court."  Any  objection  to  the  form  or  manner  of  the  proceed- 
ings can  only  be  raised  by  a  motion  to  suppress  the  deposition,*' 
which  should  be  seasonably  made  before  the  case  is  called  for 
trial;**  provided  that  sufficient  time  within  which  to  make  such 
a  motion  remains  between  the  return  of  the  commission  and  the 
hearing.*^  Should  a  foreign  plaintiff  refuse  to  testify  before 
a  commission  when  required  so  to  do,  the  court  may  deny  him 
relief  in  the  suit.*^ 

§  358.  Letters  rogatory.  When  the  witnesses  whose  testi- 
mony is  desired  are  in  a  country  whose  laws  do  not  permit  of 
the  execution  of  a  commission  issued  from  a  foreign  court,  their 
testimony  can  only  be  taken  by  means  of  letters  rogatory.    "This 

87  IT.  S.  V.  Fifty  Boxes  and  Pack-  R.  Co.,  21   How.   88,  16  L.  ed.   68; 

a^es  of  Lace,  92  Fed.  601,  603,  604.  Doane    v.    Glenn,    21    Wall.    33,    22 

38  Ibid.  L.    ed.    476;    York    Co.    v.    Central 

39  Merrill  V.  Dawson,  Hempst.  563;  R.  Co.,  3  Wall.  107.  18  L.  ed.  170; 
s.  c.  S7ib  nom.  Fowler  v.  Mer-  Walker  v.  Parker,  5  Cranch,  C.  C. 
rill,    11   How.    375,    13   L.   ed.   736;  639. 

Eoudereaii  v.  Montgomery,  4  Wash.  44  Bibb   v.    Allen,   149   U.   S.   481, 

186;   Winter  v.  Simonton,  3  Cranch,  488,  37  L.  ed.  819,  822.     See  Dicker- 

C.  C.  104.  •''On    V.   Matheson.    50    Fed.    73,    75; 

40  IT.  S.  R.  S.,  §  868,  quoted  /ntpra.  supra,  S  355. 

§  342,  46  Sergeant    v.    Biddle,    4    Wheat. 

41  U.  S.  R.  S.,  §  868,  quoted  supra,  508,  4  L.  ed.  627;  Mechanics'  Bank 
§342.  See  Cancel  v.  Goodyear  Shoe  v.  Seton,  1  Pet.  299;  7  L.  ed.  152; 
Machinery    Co.,    128    Fed.    753.  Biiddicum    v.   Kirk,   3    Cranch.    293, 

42  Jones  v.  Oregon  C.  R.  Co.,  3  2  L.  ed.  444;  Alsop  v.  Com.  Ins. 
Saw.   523;    U.   S.   v.   Parrott,   1  Mc-  Co.,  1  Sumn.  451. 

All,  447.     See  §  352.  46  Heath  v.  Erie  R.  Co.,  9  Blati-hf. 

43  Blackburn  v.  Crawford.s,  3  Wall.       •"«>• 
175;    Winans   v.   New  York   &   Erie 


1804  EVIDENCE  [§  358 

method  of  obtaining  testimony  from  witnesses  in  a  foreign  coun- 
try has  always  been  familiar  in  the  Courts  of  Admiralty ;  but  it 
is  also  deemed  to  be  within  the  inherent  powers  of  all  courts  of 
justice.     For,  by  the  Law  of  Nations,  courts  of  Justice,  of  dif- 
ferent countries,  are  bound  mutually  to  aid  and  assist  each  other, 
for  the  furtherance  of  justice;  and  hence,  when  the  testimony 
of  a  foreign  witness  is  necessary,  the  Court  before  which  the 
action  is  pending,  may  send  to  the  Court  within  whose  jurisdic- 
tion the  witness  resides,  a  writ,  either  patent  or  close,  usually 
called  a  letter  rogatory,  or  a  commission  sub  mutuae  vicissitudi- 
nis  ohtentu,  ac  in  juris  suhsidium,  from  those  words  contained 
in  it.     By  this  instrument  the  court  abroad  is  informed  of  the 
pendency  of  the  cause,  and  the  names  of  the  foreign  witnesses, 
and  is  requested  to  cause  the  depositions  to  be  taken,  in  due 
course  of  law,  for  the  furtherance  of  justice;  with  an  offer,  on 
the  part  of  the  tribunal  making  the  request,  to  do  the  like  for  the 
other  in  a  similar  case.    The  writ  or  commission  is  usually  accom- 
panied by  interrogatories,  filed  by  the  parties,  on  each  side,  to 
which  the  answers  of  the  witnesses  are  desired.    The  commission 
is  executed  by  the  judge  who  receives  it,  either  by  calling  the 
witness  before  himself,  or  by  the  intervention  of  a  commissioner 
for  that  purpose;  and  the  original  answers,  duly  signed  and 
sworn  to  by  the  deponent,  and  properly  authenticated,"  or  duly 
authenticated  copies  of  the  same,  "are  returned  with  the  com- 
mission to  the  Court  from  which  it  issued. 

The  Court  of  Chancery  has  always  freely  exercised  this  power, 
by  a  commission,  either  directed  to  foreign  magistrates,  by 
their  official  designation,  or  more  usually,  to  individuals  by 
name ;  which  latter  course,  the  peculiar  nature  of  its  jurisdiction 
and  proceedings  enables  it  to  induce  the  parties  to  adopt  by 
consent,  where  any  doubt  exists  as  to  its  inherent  authority. ' '  ^ 
A  special  application  for  an  order  for  letters  rogatory  may  be 
made  to  the  court,  and  will  be  granted  in  the  first  instance  with- 
out issuing  a  commission,  upon  satisfactory  proof  that  the  au- 

§358.      IGreenleaf's    Ev.,    §320.  add.,   pp.    37,   38,   55,   60;    Gierke's 

See  for  a  good  form,  Nelson  v.  U.  Praxis,    tit.    27;    1    Eoll.    Abr.    530, 

S.,  1  Pet.  C.  0.  236,  note.     See  also  pi.  15;  Oughton's  Ordo  Judiciorum, 

Cunningham    v.    Otis,    1    Gall.    166;  vol.    1,    pp.    150,    152,    tit.    95,    96; 

Hall's    Adm.    Pr.,   part    2,    tit.    19,  Wharton's  Int.  Law  Pig.,  vol.  Ill, 

vol.   1,   cum   add.,   and   tit.    27,   cum  §  413. 


s 


358]  LETTERS  ROGATORY  1805 


thorities  abroad  will  not  allow  the  testimony  to  be  taken  in  any 
other  manner.^ 

"When  any  commission  or  letter  rogatory,  issued  to  take  the 
testimony  of  any  witness  in  a  foreign  country,  in  any  suit  in 
which  the  United  States  are  parties  or  have  any  interest,  is 
executed  by  the  court  or  the  commissioner  to  whom  it  is  directed, 
it  shall  be  returned  by  such  court  or  commissioner  to  the  min- 
ister or  consul  of  the  United  States  nearest  the  place  where  it 
is  executed.  On  receiving  the  same,  the  said  minister  or  consul 
shall  indorse  thereon  a  certificate,  stating  when  and  where  the 
same  was  received,  and  that  the  said  deposition  is  in  the  same 
condition  as  when  he  received  it;  and  he  shall  thereupon  trans- 
mit the  said  letter  or  commission  so  executed  and  certified  by 
mail,  to  the  clerk  of  the  court  from  which  the  same  issued,  in  the 
manner  in  which  his  official  dispatches  are  transmitted  to  the 
government.  And  the  testimony  of  witnesses  so  taken  and  re- 
turned shall  be  read  as  evidence  on  the  trial  of  the  suit  in 
which  it  was  taken,  without  objection  as  to  the  method  of  re- 
turning the  same."^  The  statutes  further  provide  for  the  tak- 
ing of  testimony  under  a  commission  or  in  pursuance  of  letters 
rogatory  issued  from  a  court  in  a  foreign  country,  with  which  the 
United  States  arc  at  peace,  to  take  the  testimony  of  a  witness 
residing  within  the  United  States,  in  any  suit  for  the  recover^'  of 
money  or  property  depending  in  such  foreign  court  in  which  the 
government  of  such  foreign  country  is  a  party  or  has  an  interest, 
as  follows : — 

"The  testimony  of  any  witness  residing  within  the  United 
States,  to  be  used  in  any  suit  for  the  recovery  of  money  or  prop- 
perty  depending  in  any  court  in  any  foreign  country  with  which 
the  United  States  are  at  peace,  in  which  the  government  of  siich 
foreign  country  shall  be  a  ]iarty  or  shall  have  an  interest,  may 
be  obtained,  to  be  used  in  such  suit.  If  a  commission  or  letters 
rogatory  to  take  such  testimony,  together  with  specific  \yritten 
interrogatories,  accompanying  the  same  and  addressed  to  such 
witness,  shall  have  been  issued  from  the  court  in  which  such  suit 
is  pending,  on  producing  the  same  before  the  district  judge  of 

2  IIofTiiian's    Ch.    Pr.    482;    Dan-  coin    v.   Battclle,   6   Wend.    (N.   Y.) 

iell's  Ch,  Pr.  (3d  Am.  ed.  by  Judge  475;  Gross  v.  Palmer,  105  Fed.  833. 
Perkins),  vol.   II,  p.  953;   Gason  v.  3  U.  S.  E.  S.,  §875. 

Wordsworth,  2  Ves.  Seii.   336;   Lin- 


1806  EVIDENCE  [§358 

any  district  where  the  witness  resides  or  shall  be  found,  and 
on  due  proof  being  made  to  such  judge  that  the  testimony 
of  any  witness  is  material  to  the  party  desiring  the  same,  such 
judge  shall  issue  a  summons  to  such  witness  requiring  him  to 
appear  before  the  officer  or  commissioner  named  in  such  com- 
mission or  letters  rogatory,  to  testify  in  such  suit.  And  no  wit- 
ness shall  be  compelled  to  appear  or  to  testify  under  this  section 
except  for  the  purpose  of  answering  such  inteiTogatories  so 
issued  and  accompanying  such  commission  or  letters :  Provided, 
Then  when  counsel  for  all  the  parties  attend  the  examination, 
they  may  consent  that  questions  in  addition  to  those  accompany- 
ing the  commission  or  letters  rogatory  may  be  put  to  the  wit- 
ness, unless  the  commission  or  letters  rogatory  exclude  such  ad- 
ditional interrogatories.  The  summons  shall  specify  the  time 
and  place  at  which  the  witness  is  required  to  attend,  which  place 
shall  be  within  one  hundred  miles  of  the  place  where  the  witness 
resides  or  shall  be  served  with  such  summons. "  *  It  has  been 
held  that  criminal  proceedings,*  and  "proceedings  relating  to 
the  investigation  as  to  the  smuggling  of  some  cases  of  cotton, ' '  ^ 
do  not  come  within  this  statute, 

"No  witness  shall  be  required,  on  such  examination  or  any 
other  under  letters  rogatory,  to  make  any  disclosure  or  discov- 
ery which  shall  tend  to  criminate  him  either  under  the  laws  of 
the  State  or  Territory  within  which  such  examination  is  had,  or 
any  other,  or  any  foreign  State."  "^ 

"If  any  person  shall  refuse  or  neglect  to  appear  at  the  time 
and  place  mentioned  in  the  summons  issued  in  accordance  with 
section  forty  hundred  and  seventy-one,  or,  if  upon  his  appear- 
ance he  shall  refuse  to  testify,  he  shall  be  liable  to  the  same  penal- 
ties as  would  be  incurred  for  a  like  offense  on  the  trial  of  a  suit 
in  the  District  Court  of  the  United  States."  * 

"Every  witness  who  shall  so  appear  and  testif.y  shall  be  al- 
lowed, and  shall  receive  from  the  party  at  whose  instance  he 
shall  have  been  summoned,  the  same  fees  and  mileage  as  are 
allowed  to  witnesses  in  suits  depending  in  the  District  Courts 
of  the  United  States. "  9 

4  U.  S.  E.  S.,  §  4071.  7  U,  S.  R.  S.,  §  4072. 

6  Matter    of   the    Spanish    Consul,  8  U.  S.  R.  S.,  §  4073. 

1  Ben.  225.  -  » U.  S.  R.  S.,  §  4074. 

6i?e    Letters    Rogatory,    36    Fe<i. 
30«. 


§359] 


DEPOSITIONS    UNDEK  STATE   STATUTES 


1807 


"When  letters  rogatory  are  addressed  from  any  court  of  a 
foreign  country  to  any  Circuit  Court  of  the  United  States,  a 
commissioner  of  such  Circuit  Court  designated  by  said  court  to 
make  the  examination  of  the  witnesses  mentioned  in  said  let- 
ters, shall  have  power  to  compel  the  witnesses  to  appear  and 
depose  in  the  same  manner  as  witnesses  may  be  compelled  to 
appear  and  testify  in  courts. ' '  ^°  The  court  refused  to  comply 
with  a  judicial  request  in  a  letter  rogatory  requesting  service 
of  process  from  a  court  of  a  foreign  country  upon  a  resident  of 
the  United  States." 

§  359.  Testimony  taken  in  the  manner  prescribed  by  the 
State  law.  Tlie  act  of  March  9,  1892,  provides  "that  in  addi- 
tion to  the  mode  of  taking  the  depositions  of  witnesses  in  causes 
pending  at  law  or  equity  in  the  District  and  Circuit  Courts  of 
the  United  States,  it  shall  be  lawful  to  take  the  depositions  or 
testimony  of  witnesses  in  the  mode  prescribed  by  the  laws  of  the 
State  in  which  the  courts  are  held."  ^ 

Before  this  statute  it  was  held  that  no  form  of  examination  or 
deposition  unknown  to  the  common  law  and  not  authorized  by  a 
Federal  statute,  even  though — as  the  examination  of  a  party 
before  trial,^  or  the  filing  of  interrogatories  with  a  complaint  ^— 
authorized  by  a  statute  of  the  State  where  the  court  is  held.* 
would  be  followed  by  a  Federal  court  in  either  an  action  at  com- 
mon law  or  a  suit  in  equity;*  and  that  an  order  of  a  State 
court  directing  such  an  examination  was  avoided  by  the  removal 
of  the  case.6  jjj  ^]^q  Second  Circuit  it  was  held  that  an  order 
could  be  granted  for  the  examination  of  a  party  to  an  action  at 
common  law,  in  accordance  with  the  State  statute,  to  enable  the 
opposite  party  to  frame  his  pleading.'    In  the  Eighth  Circuit  it 


10  U.  S.  E.  S.,  §  875,  as  ameudod 
by  19  St.  at  L.  241  (U.  S.  R.  S., 
1    Supp.   266). 

11  Letters  Rogatory  Out  of  First 
Civil  Court  of  City  of  Mexico,  261 
Fed.   652. 

§359.  127  St.  at  L.  7;  Henning 
V.  Boyle,  112  Fed.  397;  see  Cook 
V.  Flagg,  233  Fed.  713. 

2  Ex  parte  Fisk,  113  U.  S.  713. 
28  L.  ed.  1117.     But  see  Bryant  v. 


Leyland,    6    Fed.    125;     Lowrey    v. 
Ku.iworni,  66  Fed.  539. 

3  Tabor    V.    Indianopolis    Journal 
Newspaper  Co.,  66  Fed.  423. 

4  U.  S.  V.  Fifty  Boxes  and  Pack- 
ages of  Lace,  92  Fed.  601. 

BEx  parte  Fisk,   113    U.    S.    713, 
28  L.  ed.  1117. 

6  Ex  parte  Fisk,   113   U.   8.   713, 
28  L.  ed.  1117. 

7  Anderson    v.    Mackay,    46    Fed. 


1808 


EVIDENCE 


[§359 


was  held  that  the  defendant  could  not  be  compelled  to  answer 
interrogatories  attached  to  the  plaintiff's  common-law  petition  in 
accordance  with  the  State  practice.®  It  has  been  said  that  the 
statute  merely  provides  an  additional  method  of  taking  testimony, 
and  does  not  confer  any  additional  rights.^  The  statute  relates 
only  to  the  manner  of  taking  depositions,  and  it  does  not  au- 
thorize them  to  be  taken  in  any  cases  not  specified  in  the  Eevised 
Statutes  of  the  United  States.^^*  It  does  not  authorize  an  exami- 
nation of  a  party  before  trial  for  the  use  of  his  testimony  at 
the  trial  under  the  State  practice  either  orally/^  or  upon  written 
interrogatories,^'^  or  before  issue  joined.^^  It  does  not  prevent 
the  taking  of  depositions  for  use  upon  motions,  when  that  prac- 
tice is  authorized  by  a  rule  of  the  Federal  court.^*  Under  this 
statute,  a  dedimus  potestatem  to  take  testimony  in  Cuba,  by  oral 
examination,  was  granted  in  accordance  with  the  statutes  of 
Connecticut.  15  When  the  State  practice  requires  an  application 
to  the  court,  it  may  be  denied  if  the  practice  in  taking  a  deposi- 
tion under  the  Revised  Statutes  of  the  United  States  ^^  would  be 
simpler  and  granted  when  the  State  practice  would  save  ex- 
pense.i''^ 

In  the  absence  of  a  statute,  State  or  Federal,  a  court  of  the 
United  States  has  no  power  to  order  a  plaintiff  in  an  action  for 


105.     But   see   Marvin  v.    C.    Ault- 
man  &  Co.,  46  Fed.   338. 

8  Pierce  v.  Union  Pac.  Ey.  Co., 
47  Fed.  709. 

9  Nat.  Cash  Keg.  Co.  v.  Leland, 
C.  C.  A.,  94  Fed.  502;  s.  c,  77  Fed. 
242. 

10  Hanks  Dental  Ass  'n  v.  Inter- 
national Tooth-Crown  Co.,  194  TJ. 
S.  303,  308,  48  L.  ed.  989,  991. 

11  Hanks  Dental  Ass'n  v.  Interna- 
tional Tooth-Crown  Co.,  194  U.  S. 
303,  308,  48  L.  ed.  989,  991;  Nat. 
Cash-Register  Co.  v.  Leland,  C.  C. 
A.,  94  Fed.  502;  s.  c,  77  Fed.  242. 
Cf.  Calivada  Colonization  Co.  v. 
Hayes,  119  Fed.  202. 

12  Hanks  Dental  Ass  'n  v.  Interna- 
tional Tooth-Crown  Co.,  194  U.  S. 
203,  48  L.  ed.  989;   Smith  v.  Inter- 


national   Mercantile    Co.,    154    Fed. 
786. 

13  Shellebarger  v.  Oliver,  64  Fed. 
306 ;  Texas  &  Pae.  Ey.  Co.  v.  Wilder 
C.  C.  A.,  92  Fed.  953;  Despeaux  v. 
Pennsylvania  R.  Co.,  81  Fed.  897. 
But  see  Anderson  v.  McKay,  46 
Fed.  105  supra. 

14  Importers '  &  Traders '  Nat. 
Bank  v.  Lyons,  134  Fed.  510. 

16  Compania  Azucarora  Cnbana  t. 
Ingraham,  Maxwell  &  Beals,  180 
Fed.  516. 

16Henning  v.  Boyle,  112  Fed. 
397.  (Application  for  a  commission 
to  take  a  deposition  orally.) 

17  Cook  v.  Flagg,  233  Fed.  713. 
(Application  for  a  commission  to 
take  testimony  upon  written  inter- 
rogatories.) 


§359] 


DEPOSITIONS    UNDER  STATE   STATUTES 


1809 


personal  injuries  to  submit  to  a  i)hysical  oxainination  in  advance 
of  the  trial, ^8  )j^^^  ^  State  statute  authorizinj;  such  an  examination 
is  constitutional  and  will  be  followed. ^^  It  lias  been  held  that 
the  State  practice  as  to  the  inspection  of  documents  will  not  be 
followed  .20 


18  Union  Pac.  Ry.  Co.  v.  Botsford, 
141  U.  S.  250,  35  L.  ed.  734 ;  Brace 
V.  Central  R.  Co.  of  N.  J.,  216  Fed. 
718. 

19  Camden  &  S.  Ry.  Co.  v.  Stet- 
son, 177  U.  S.  172,  44  L.  ed.  721. 
Cf.  Montana  Co.  v.  St.  Louis  M.  Sc 
M.  Co.,  152  U.  S.  160,  38  L.  ed.  398; 
Lyon  V.  Manhattan  Ry.  Co.,  142  N. 
Y.    298,    25    L.R.A.   402;    McGovern 


V.    Hope,    63    N,    J.    Law,    76,    42 
Atl.  830. 

20  Luekor  v.  Phoenix  As.sur.  Co., 
67  Fed.  18;  Schatz  v.  Winton  Motor 
Cairiage  Co.,  197  Fed.  777.  Contra, 
Victor  G.  Bloede  Co.  v,  Joseph  Ban- 
croft &  Sons  Co.,  98  Fed.  175;  Fils- 
eole  V.  Lancaster,  70  Fed.  337;  Gray 
V.  Schneider,  119  Fed.  474. 


CHAPTER  XXII. 

DISMISSAL  OF  BILLS  BEFORE  A  HEARING. 

§  360.  Dismissal  of  bills  before  a  hearing.  In  general.  Bills 
may  be  dismissed  before  a  hearing  upon  a  motion  of  the  plain- 
tiff, when  he  wishes  to  abandon  the  suit;  upon  the  motion  of 
the  defendant  for  want  of  prosecution,  for  failure  to  perfect 
or  revive  the  suit,  for  want  of  jurisdiction  over  the  person  of 
the  defendant,  for  want  of  jurisdiction  of  the  Federal  court, 
and  for  failure  to  show  a  ground  for  relief  in  equity  or  at  com- 
mon law. 

§  361.  Dismissal  of  bills  by  the  plaintiff.  The  plaintiff  may 
dismiss  his  bill  without  costs  at  any  time  before  the  defendant's 
appearance.^  He  may  obtain  the  order  for  the  dismissal  as 
of  course  upon  motion  or  petition,  usually  by  the  latter ;  ^  but 
if  the  dismissal  is  a  violation  of  an  agreement  between  him  and 
the  defendant,  the  order  granting  it  may  be  subsequently  va- 
cated.^ After  appearance  and  before  a  decree  or  decretal  order, 
a  plaintiff  can  usually  obtain  a  dismissal  upon  payment  of  the 
costs  of  such  of  the  defendants  as  have  appeared ;  *  but  not,  if 
they  or  any  of  them  would  be  injured  thereby.^ 


§  361.     1  Quoted      with      approval       768 ;    Tower   v.   Stimpson,   175   Fed. 


by  Newman,  J.,  Be  Wellhouse,  113 
Fed.  962;  Thompson  v.  Thompson,  7 
Beav.  350. 

2Daniell's  Oh.  Pr.  (5tli  Am.  ed.) 
790,  791. 

3Betts  V.  Barton,  3  Juri  (N.  S.) 
154. 

4  Chicago  &  A.  E.  Co.  v.  Union 
B.  M.  Co.,  109  U.  S.  702,  27  L.  ed. 
1081;  Conn.  &  P.  E.  Co.  v.  Hendee, 
27  Fed.  678;  Penn  Phonograph  Co. 
V.  Columbia  Phonograph  Co.,  C  C. 
A.,  132  Fed.  808;  Morton  Tr.  Co. 
V.  Keith,  150  Fed.  606;  Thomson- 
Houston  El.  Co.  V.  Holland,  160  Fed. 


130. 

6  This  whole  sentence  was  quoted 
with  approval  by  Newman,  J.,  Be 
Wellhouse,  113  Fed.  962,  and  the 
text  was  quoted  with  approval  by 
Hanford,  J.,  in  Hershberger  v. 
Blewett,  55  Fed.  170;  Cooper  v. 
Lewis,  2  Phil.  178;  Ainslie  v.  Sims, 
17  Beav.  174;  Booth  v.  L'eycester,  1 
Keen,  247;  Bank  of  S.  C.  v.  Eose, 
1  Rich.  Eq.  (S.  C.)  292;  Stevens  v. 
The  Eailroads,  4  Fed.  97.  See  W. 
U.  Tel.  Co.  V.  Am.  Bell  Tel.  Co., 
50  Fed.  662. 


1810 


§  361] 


DISMISSAL    OF    BILLS    BY    PLAINTIFF 


1811 


Ordinarily  the  only  terms  imposed  are  the  payniciit  of  eosts,« 
but  under  extraordinary  eireumstaiices  leave  may  be  granted 
upon  other  terms/  as  for  example,  that  the  complainant  stip- 
ulate to  allow  defendant's  evidence  to  be  used  in  any  sub- 
sequent suit.*  The  payment  of  costs  is  always  required  unless 
the  complainant  has  sued  as  a  pauper.*  Under  extraordi- 
nary circumstances  when  extensive  depositions  have  been  taken, 
the  complainant  was  obliged  to  pay  not  only  the  taxable  costs 
but  incidental  expenses  including  counsel  fees.^®  The  prospect 
of  future  litigation  regarding  the  same  subject  matter  is  not. 
according  to  the  practice  which  usually  prevails  in  e(|uity  a 
reason  for  depriving  the  plaintiff  of  the  right  to  dismiss." 

Leave  to  dismiss  may  be  refused  where  the  defendant  claims 
affirmative  relief  by  cross-bill, ^^  q^.  ]^y  counter-claim,  or  other- 


6  Ibid.  Young  v.  .J.  Samuels  & 
Bro.,  232  Fed.   784. 

7  Am.  Z.  Co.  V.  Celluloid  Mfg.  Co., 
32  Fed.  809;  Am.  Steel  &  Wire 
Co.  V.  Mayer  &  Englund  Co.,  123 
Fed.  204. 

8  Ibid. 

9  Carlisle  v.  Smith,  224  Fed.  221. 

10  A.  G.  Staude  Mfg.  Co.  v.  La- 
bomharde,  229  Fed.   100.5. 

11  Orr  V.  Cocoa-Cola  Co.,  C.  C.  A., 
247  Fed.  452;  Cowham  v.  MeNider, 
261  Fed.  714.  Rule  VIII  of  the 
United  States  District  Court,  S.  D. 
X.  Y.,  provides:  "If  justice  re- 
quires the  court  after  issue  joined 
may  refuse  to  permit  the  plaintiff 
to  discontinue  even  though  the  de- 
fendant cannot  have  affirmative  re- 
lief under  the  pleadings  and  though 
his  only  prejudice  is  the  vexation 
and  e.xpense  of  a  possible  second 
suit  upon  the  same  cause  of  ac- 
tion." Under  tTiis  rule  where  a 
complainant  has  obtained  a  favor- 
able adjudication  on  its  patent  in 
one  district  which  entitled  it  as  of 
course  to  a  preliminary  injunction 
I'n    a    suit    pending    in    another   dis- 


trict the  court  should  refuse  permis- 
sion to  dismiss  without  prejudice  the 
bill  in  the  second  suit.  Individual 
Drinking  Cup  Co.  v.  Union  News 
Co.,  C.  C.  A.,  250  Fed.  625.  But  see 
Orr  V.  Coca-Cola  Co.,  C.  C.  A.,  9th 
Ct.,  247,  441,  452. 

12  Electrical  Ace.  Co.  v.  Brush  El. 
Co.,  44  Fed.  602;  C.  &  A.  R.  Co.  v. 
Rolling  M.  Co.,  109  U.  S.  702,  27 
L.  ed.  1081;  City  of  Detroit  v.  De- 
troit City  Ry.  Co.,  55  Fed.  569. 
Where  a  cross-bill  prayed  discovery 
only  and  not  affirmative  relief,  it 
did  not  prevent  the  dismissal. 
Houghton  V.  Whitin  Mach.  Works, 
160  Fed.  227.  The  same  rule  was 
a]>plipd  when  the  cross-bill  sought 
atfirmative  relief  against  a  co-de- 
fondant  and  not  against  the  com- 
plainants. Gilmore  v.  Bort,  134 
Fed.  658.  Leave  to  dismiss  an  orig- 
inal bill  was  granted  without  preju- 
dice to  relief  under  the  cross-bill. 
Harding  v.  Corn  Products  Refining 
Co.,  C.  C.  A.,  168  Fed.  658.  Pend- 
ency of  a  motion  by  defendant  for 
leave  to  file  an  amended  answer 
praying    affirmative    relief    did    not 


1812 


DISMISSAL   OF    BILLS 


[§361 


wise.13  For  example,  where  the  bill  was  filed  to  enforce  a  false 
claim  to  property  or  an  instrument,  which  the  evidence  showed 
had  been  obtained  by  fraud;  in  which  case  the  defendant  with- 
out filing  a  cross-bill  would  be  entitled  if  successful  to  a  decree 
declaring  the  plaintiff's  claim  unfounded,  and  enjoining  him 
from  again  settling  it  up ;  i*  or  where  the  bill  was  filed  to  set 
aside  a  patent  on  the  ground  of  interference,  when  the  defend- 
ant may  obtain  affirmative  relief  by  answer.^^  The  court  will 
take  notice  of  fractions  of  a  day  in  determining  whether  a  cross- 
bill was  filed  before  the  filing  of  a  motion  to  dismiss  the  original 
bill.^^  Leave  has  been  refused  when  the  defendant  by  the  dis- 
missal would  have  lost  the  benefit  of  an  adjudication  made  in 
the  previous  proceedings  in  the  suit,^"^  or  of  a  verdict  ^*  or  find- 
ing by  a  master  or  referee  ^®  made  in  the  previous  proceedings 
in  the  suit,  or  of  a  failure  of  the  complaint  to  take  testimony, 
after  a  replication,  within  the  time  re(iuired  by  the  former  rules 
which  were  then  in  force. ^°  The  reversal  of  the  judgment  of 
ejectment  for  plaintiff  on  the  ground  that  he  had  brought  two 
previous  actions  and  was  not  entitled  to  bring  a  third  did  not 
prevent  the  court  from  permitting  him  to  dismiss  his  bill.^^  In 
a  patent  case,  the  court  refused  to  permit  the  plaintiff  to  dis- 
miss his  bill  without  prejudice,  after  the  proofs  had  been  taken 
and  a  preliminary  injunction  obtained.^^ 


cause  a  denial  of  the  motion  for 
voluntary  dismissal.  Cowham  v. 
McNider,  261  Fed.  714. 

13  Stevens  v.  The  Railroads,  4 
Fed.  97;  Hat  Sweat  Mfg.  Co.  v. 
Waring,  46  Fed.  87;  Pyrene  Mfg. 
Co.  V.  Castle,  240  Fed.  841  (where 
the  counterclaim  was  less  than  the 
jurisdictional  amount). 

14  Stevens  v.  The  Railroads,  4 
Fed.  97;  Hat  S.  Mfg.  Co.  v.  War- 
ing, 46  Fed.  87;  supra,  §  197. 

16  Electrical  Ace.  Co.  v.  Brush  El. 
Co.,  44  Fed.  602;  supra,  §  197. 

16  Tower  v.  Stimpson,  175  Fed. 
130. 

17  Hershberger  v.  Blewett,  55  Fed. 
170,  172;  Daniell's  Ch.  Pr.  (5th 
ed.)    793;   Am.   Bell   Tel.   Co.   v.   W. 


U.  Tel.  Co.,  C.  C.  A.,  69  Fed.  666. 
Rut  see  W.  U.  Tel.  Co.  v.  Am.  Bell 
T.  Co.,  50  Fed.  662. 

ISEbner  v.  Zimmerly,  C.  C.  A., 
118  Fed.  818. 

19  Am.  Bell  Tel.  Co.  v.  W.  U. 
Tel.  Co.,  C.  C.  A.,  69  Fed.  666. 
(where  no  report  had  been  -signed 
but  the  draft  of  the  master's  find- 
ings had  been  submitted  to  coun- 
sel;) Smith  v.  Carlisle,  C.  C.  A., 
228  Fed.  666,  reversing  224  Fed. 
231. 

aoSehmeiser  Mfg.  Co.  v.  Blanch- 
ard,  192  Fed.  362. 

21  Southern  Cotton  Oil  Co.  v. 
Shelton,  C.  C.  A.,  223  Fed.  770. 

22  Georgia  Pine  Turpentine  Co.  v. 
Bilfinger,  129  Fed.  131. 


§  361]  DISMISSAL   OF    BILLS    BY    PLAINTIFF  1813 

An  executor  or  other  person,  who  lias  filed  a  bill  in  a  repre- 
sentative capacity  in  good  faith  witli  reasonable  grounds  for  so 
doing,  may  be  excused  payment  of  costs.^^ 

The  motion  lor  such  an  order  should  be  upon  notice.^*  The 
same  practice  is  followed  when  a  plaintitT'  sues  in  behalf  of  him- 
self and  others,  provided  that  no  one  has  previously  joined  with 
him  as  co-plaintiff,^^  unless,  jx-rhaps,  others  have  contributed  to 
the  expenses  of  the  suit  and  wish  it  continucd.^^ 

It  has  been  said  that  an  individual  plaintiff  in  an  aftioii  on 
the  bond  of  a  government  contractor  should  not  be  permitted  to 
discontinue  so  as  to  prevent  relief  to  other  creditors  when  it 
was  not  shown  that  there  was  no  intervenor  ready  to  proceed.^'' 

Complainant  does  not  lose  this  right  because  his  motion  was 
made  after  the  removal  of  his  suit  from  a  State  to  a  Federal  court 
and  another  stockholder  has  since  then  instituted,  in  the  former 
jurisdiction,  a  suit  which  is  not  removable.^^  After  other  mem- 
bers of  his  class  have  joined  as  co-plaintiffs  in  the  suit,  the 
plaintiff  cannot  dismiss  the  bill  without  their  consent.^®  A 
stockholder  of  a  corporation,  who  has  intervened  in  a  creditors' 
suit,  cannot,  however,  make  such  an  oljjection.^" 

The  majority  of  the  stockholders  in  a  corporation  cannot 
usually  have  a  suit  discontinued  against  the  wishes  of  its  di- 
rectors,^^ 

After  a  decree  or  decretal  order,  whether  parol  or  interloc- 
utory, the  plaintiff  may  not  discontinue  without  the  consent  of 
all  parties  who  have  acquired  rights  by  the  decree,  including 
creditors  who  have  filed  their  claims  pursuant  to  a  direction  in 
the   same,^^   and    bondholders    represented    by    the    plaintiff   as 

23  Arnoux  v.  Steinbrenner,  1  28  Harding  v.  Corn  Products  Be- 
Paige   (N.  Y.)   82.  fining  Co.,   C.   C.  -A.,  168   Fed.   658. 

24  Am.  Z.  Co.  V.  Celluloid  Mfg.  29  Belmont  N.  Co.  v.  Columbia  I. 
Co.,  32  Fed.   809;    Gregory  v.  Pike,  &  S.  Co.,  46  Fed.  3.S6. 

C.  C.  A.,  67  Fed.  837;   Hirshficld  v.  30  Shaffer  v.  McCuUoeh,  C.  C.  A., 

Fitzgerald,  157  N.  Y.  166.  1J12  Fed.  801. 

26  Hanford  v.  Storie,  2  Sim.  &  S.  31  Railway  Co.  v.  Ailing,  99  U.  S. 
196;    Armstrong  v.   Storer,   9  Beav.  46.5,  25  L.  ed.  438. 

277.  32  Guilhert  v.   Hawles,  1   Ch.   Cas. 

2e  Ex   parte    Railroad    Co.,   95   U,  40;     Carrington    v.    Holly,    1    Dick. 

S.  221,  24  L.  ed.  355;  Miller  v.  Lig-  280;     Hershberger    v.    Blewett,    55 

gett  &  M.  T.  Co.,  7  Fed.  91.  Fed.  170;  Gregory  v.  Pike,  C.  C.  A., 

27  Merchants '  Nat.  Bank  v.  U.  S.,  6"  Fed.  837 ;  Garner  v.  Second  Nat. 
C.  C.  A.,  214  Fed.  200,  206.  Bank,  67  Fed.  833. 

Fed.  Prac.  Vol.  II— 44 


1814 


DISMISSxVL   OF    BILLS 


198  §] 


trustee.^^ 

The  usual  course  pursued  by  one  iu  whose  name  without  his 
consent  a  bill  has  been  filed,  is  to  move,  on  notice  to  the  solicitor 
who  appeared  for  him  and  to  any  other  parties  who  have  ap- 
peared, to  have  it  taken  off  the  file.^*  Upon  this  being  done, 
he  may  recover  from  the  solicitor  who  filed  the  bill,  his  costs,^^ 
as  well  as  any  costs  he  may  have  been  compelled  to  pay  a  de- 
fendant.2^  Where  the  plaintiff  had  made  an  agreement  of  settle- 
ment without  the  consent  of  his  attorneys,  who  opposed  the 
same,  it  was  held  that  the  suit  could  not  be  dismissed  until  the 
matter  had  been  set  up  by  a  cross-bill.^^  It  has  been  held  that 
an  agreement  to  dismiss  a  suit  is  waived  by  answering  on  the 
merits  an  amended  bill  thereafter  filed.^^ 

Plaintiff  cannot,  it  seems,  dismiss  a  part  only  of  his  bill. 
The  proper  course  is  for  him  to  amend  by  omitting  it.^^ 

When  there  is  more  than  one  plaintiff,  one  of  them  may  by 
special  leave  of  the  court  have  the  bill  dismissed  with  costs  so 
far  as  concerns  himself,  provided  that  no  injury  will  thereby 
result  to  any  other  party .*<•  If  there  are  several  defendants, 
a  plaintiff  may  obtain  an  order  dismissing  his  bill  as  to  some  of 
them,  provided  that  no  injury  will  be  thereby  done  the  rest.*^ 

A  dismissal  at  the  plaintiff's  request  before  a  hearing  is  usu- 
ally without  prejudice,*^  unless  evidence  has  been  taken  and  the 
cause  set  down  for  a  hearing,  when  it  should  be  granted  only 
by  a  decree  dismissing  the  bill  upon  the  merits.*^    The  entry  of 


33  Johnson  v.  Miller,  96  Fed.  271. 

34  Central  Tr.  Co.  v.  U.  S.  Flour 
Milling  Co.,  113  Fed.  587. 

35  Palmer  v.  Walesby,  L.  K.  3  Cli. 
App.  732;  Titterwan  v.  Osborne,  1 
Dick.  350;  Hood  v.  Phillips,  6  Beav. 
176. 

36  Palmer  v.  Walesby,  L.  E.  3  Oh. 
App.  732;  Wright  v.  Castle,  3 
Meriv.  12. 

37  Snyder  v.  DeForest  Wireless 
Telegraph  Co.  (D.  Maine),  154  Fed. 
142.  Contra,  Snyder  v.  DeForest 
Wireless  Telegraph  Co.,  E.  D.  Mo. 
1907.  In  both  cases  the  author 
was  counsel. 


38  McFadden  v.  Heisen,  C.  C.  A., 
150  Fed.  568. 

39  Camden  &  Amboy  E.  Co.  v. 
Stewart,  4  C.  E.  Green  (N.  J.)  69. 
But  see  Lyster  v.  Stickney,  12  Fed. 
609;  Barber  v.  Eeo  Motor  Car  Sales 
Co.,  245  Fed.  939. 

40Holkirk  v.  Holkirk,  4  Madd. 
50;  Winthrop  v.  Murray,  7  Hare, 
150. 

41  Baily  v.  Lambert,  5  Hare  178. 

42Danieirs  Ch.  Pr.  (5th  Am.  ed.)' 
793.  But  see  Stevens  v.  The  Eail- 
roads,  4  Fed.  97. 

43  Eumbry  v.  Stainton,  24  Ala. 
712;    Boehester   v.    Lee,   1   Macn.   & 


§  362]  DISMISSAL   FOR    WANT    OP    PROSECUTION  1815 

•an  order  of  discontinuance  upon  consent  of  botli  parties  amounts 
in  effect  to  a  dismissal  of  the  bill.**  The  dismissal  of  a  bill  or 
of  part  of  a  bill  does  not  authorize  the  removal  of  the  paper 
from  the  clerk's  office  unless  the  order  so  directs;  and  such  a 
direction  will  rarely  be  given.*^  Otherwise,  the  paper  remains 
a  part  of  the  record,  and  may  Ix'  used  as  evidence  of  any  ad- 
mission therein  contained.*^ 

An  order  dismissing  a  bill  may  be  set  aside.*'''  An  order  deny- 
ing a  motion  to  dismiss  a  bill  as  to  a  party  is  ai)i)<'ahil)le.*^ 

§  362.  Dismissal  of  bills  for  want  of  prosecution  or  for  failure 
to  perfect  or  revive  the  suit.  If  the  plaintiff'  unreasonably 
neglects  to  proceed  in  a  suit  it  may  be  dismissed  for  want  of 
prosecution.  This  was  done:  when  he  failed  to  take  ])i-oofs 
within  the  times  prescribed  by  the  rules  after  the  issues  were 
joined;^  where  after  an  auditor  had  been  appointed  plaintiff 
failed  to  proceed  for  fifteen  years  ;^  and  where  plaintiff  failed 
to  take  out  a  subpoena  for  two  j'ears  after  the  bill  was  filed.^ 

The  Equity  Rules  provide,  that  if  a  case  is  continued  by  con- 
sent beyond  the  term,  it  shall  be  dropped  from  the  trial  calendar, 
subject  to  reinstatement  within  one  year  upon  the  application 
to  the  court  by  either  party.  "If  not  so^  reinstated  within  the 
year,  the  suit  shall  be  dismissed  without  prejudice  to  a  new 
one."*  The  refusal  of  the  plaintiff  and  of  the  State  court  to 
recognize  a  removal  is  no  defense  to  such  motion  to  dismiss 
for  want  of  prosecution  in  the  Federal  eourt.^  although  the 
court  might,  in  its  discretion,  consider  this,  if  made  in  good 
faith,  as  a  ground  for  allowing  further  time.  A  failure  to  take 
out  subpoenas  for  two  years  after  a  bill  was  filed,  has  been 
held  to  justify  a  dismissal  of  the  bill.^ 

G.   467.     See   Stevens  v.   The   RaU-  §  362.     l  Vrooman   v.  Burdick,  C. 

roads,  4  Fed.  97.  C.  A.,  222  Fed.  900. 

44  Pictet  A.  I.  Co.  V.  N.  Y.  T.  M.  2  Bernays   v.   Frederic   Leyland   & 

Co.,  12  Fed.  816.  Co.,  228  Fed.  913. 

46  Lyster  v  Stickney,  12  Fed.  609,  3  Houston  v.   City  and  County  of 

610.  San   Francisco,   47   Fed.   337;    Ban- 

46  Ibid.  '-roft  v.  Sa^\-in,  143  Mass.  144. 

47  Gregory  v.  Pike,  C.  C.  A.,  67  4  Eq.  Rule  57,  quoted  in  full, 
Fed.  837.  5  369,  infra. 

48  Brush  El.  Co.  v.  California  El.  6  McMullon  v.  Northern  Pac.  R. 
L.  Co.,  C.  C.  A.,  51  Fed.  557;   s.  c,  Co..  57  Fed.  16. 

52  Fed.  945.  6  Houston  v.  City  and  County  of 


1816 


DISMISSAL   OF    BILLS 


[§  362 


A  bill  may  be  dismissed  for  the  failure  of  the  complainant, 
within  a  reasonable  time,  to  serve  indispensable  defendants, 
whom  he  has  named  in  its  introduction  or  title,'  but  it  is  the 
usual  practice  to  make  the  order  conditional  upon  his  not  bring- 
ing them  in  within  a  number  of  days  therein  specified.^ 

Where  a  master  had  filed  a  report  in  favor  of  the  complainant 
it  was  held  that  the  bill  should  not  be  dismissed  for  want  of 
prosecution  until  after  the  court  had  passed  upon  tlie  defend- 
ant's exceptions.® 

The  right  to  dismiss  for  want  of  prosecution  is  waived  by  a 
subsequent  proceeding  in  the  case  by  the  other  side  such  as  a 
consent  to  an  order  of  reference  ^°  or  a  consent  to  adjourn  the 
case  after  a  docket  entry  of  dismissal  had  been  madc^^  The 
pendency  of  other  litigation  involving  a  doubtful  question  of 
law  involved  is  a  sufficient  excuse  for  the  delay.^^  So  in  one 
ease  was  the  misunderstanding  of  the  practice  by  the  plaintiff 
whose  counsel  had  died.^^ 

By  the  former  practice,  when  a  suit  had  abated  or  become 
otherwise  defective  before  a  decree,  the  party  or  parties  against 
whom  it  could  be  continued  might,  upon  notice  served  upon  the 
person  or  persons  entitled  to  revive  or  supply  the  defect  in  the 
same,  move  for  and  obtain  an  order,  directing  that  these  revive 
or  supply  the  defect,  within  a  certain  limited  time  to  be  fixed 
by  the  court,  or  that  else  the  bill  be  dismissed.^*  If  the  suit 
abated  by  the  death  of  one  of  several  co-plaintiffs,  the  order 
might  be  obtained  against  the  survivors;  and  it  seems  that  the 
objection  that  there  was  no  personal  representative  of  the  de- 
ceased plaintiff  did  not  prevent  the  court  from  granting  such 
an  order.^5     It  was  irregular  in  such  cases  to  move  to  dismiss 


San   Trancisco,   47   Fed.   337;    Ban- 
croft V.  Sawin,  143  Mass.  144. 

7  Herndon  v.  Eidgway,  17  How. 
424,   15  L.   ed.   100. 

8  Rogers  v.  Penobscot  Min.  Co., 
C.  C.  A.,  154  Fed.  606;  Buck  v. 
Felder,  208  Fed.  474. 

9  Henry  v.  Harris,  C.  C.  A.,  201 
Fed.  872. 

lOLaekner  v.  McKechney,  C.  C. 
A.,  252  Fed.  403. 


11 U.  S.  V.  Sixty-five  Cases  of 
Glove  Leather,  254  Fed.  211. 

12Kryptok  Co.  v.  Haussman  & 
Co.,  216  Fed.  267. 

13  Craven  v.  Clark,  247  Fed.  622. 

UAdamson  v.  Hall,  1  T.  &  B. 
258;  Bolton  v.  Bolton,  2  S.  &  S. 
371.     See  svpra,  §§216-221. 

ISHinde  v.  Morton,  2  H.  &  M. 
368. 


§  363]  DISMISSAL  FOR  WANT  OF  JURISDICTION  1817 

a  bill  for  want  of  prosecution;  and  an  order  to  tliat  effect,  if 
obtained,  would  be  discharged  for  irregularity.^^ 

A  bill  might  be  dismissed  at  a  defendant's  motion  for  the 
plaintiff's  failure  to  serve  with  process  another  defendant  named 
in  the  bill  who  was  a  necessary  part}'  to  the  suit.*"^  Upon  the 
death  of  a  defendant,  whom  the  pleadings  showed  to  be  an  in- 
dispensable party,  when  it  was  impossible  to  bring  in  his  exe- 
cutors, the  suit  would  be  dismissed.^^ 

The  equity  rules  now  provide  that  in  the  event  of  the  death 
of  either  party  if  the  successors  or  representatives  of  the  de- 
ceased party  fail  to  make  such  application  within  a  reasonable 
time,  then  any  other  party  may,  on  motion,  apply  for  sucii  re- 
lief, and  the  court,  upon  any  such  motion  may  make  the  nec- 
essary orders  for  notice  to  the  parties  to  be  substituted  and  for 
the  filing  of  such  pleadings  or  amendments  as  may  be  necessary.^^ 
Under  this  rule  a  motion  to  dismiss  for  want  of  prosecution 
can  be  made.^® 

§  363.  Dismissal  for  v^rant  of  jurisdiction.  The  Judicial  Code 
provides:  "If,  in  any  suit  couimenced  in  a  District  Court  or 
removed  from  a  State  court  to  a  District  Court  of  the  United 
States,  it  shall  appear  to  the  satisfaction  of  the  said  District 
Court,  at  any  time  after  such  suit  has  been  brought  or  removed 
thereto,  that  such  suit  does  not  really  and  substantially  involve 
a  dispute  or  controversy  properly  within  the  jurisdiction  of 
said  District  Court,  or  that  the  parties  to  said  suit  have  been 
improperly  or  collusively  made  or  joined,  either  as  plaintiffs 
or  defendants,  for  the  purpose  of  creating  a  ease  cognizable  or 
removable  under  this  chapter,  the  said  District  Court  shall  pro- 
ceed no  further  therein,  but  shall  dismiss  the  suit  or  remand 
it  to  the  court  from  which  it  was  removed,  as  justice  may  re- 
quire, and  shall  make  such  order  as  to  costs  as  shall  be  just."  * 
The  court  should  do  this  of  its  own  motion,  as  soon  as  it  dis- 

16  Robinson   v.   Norton,    10    Beav.  18  Lawrence  v.  Southern  Pac.  Co., 

484;   Boddy  v.  Kent.  1  Meriv.  361;  177  Fed.  547. 

Sellers  v.  Dawson,  2  Dick.  738;  Dil-  19  Eq.  Rule  45. 

lard's    Adm'r   v.   Central   Va.    Iron  20 Spring  v.  Webb,  227  Fed.  481. 

Co.,  125  Fed.  157,  quoting  text  with  §  3(5:;.     1  ,Jud.    Code,    §  37,   36   St. 

approval.  at  L.  1087,  re-enacting  in  substance 

nPiequet  v.  Swan,  5  Mason,  561;  Act  of  March  3,   1875,  ch.  137,   §5 

Jessup  V.  Illinoia  Central  R.  Co.,  56  (18  St.  at  L.  472). 
Fed.  735. 


1818 


DISMISSAL   OF    BILLS 


[§363 


covers  its  want  of  jurisdiction  or  the  improper  or  collusive 
joiuder.2  The  Supreme  Court  has  said  that  such  an  act  is  salu- 
tary, and  that  it  is  the  duty  of  the  courts  to  exercise  their 
power  under  it  in  all  proper  cases.^  Neither  party  has  the 
right,  however,  without  pleading  a  denial  within  the  time  al- 
lowed for  that  purpose,  to  introduce  evidence  to  contradict 
averments  of  the  jurisdictional  facts ;  *  but  if  the  defect  appears 
upon  the  plaintiff's  pleading  or  the  evidence,  the  objection  may 
be  taken  at  any  time  ^  even  after  a  trial  upon  the  merits.^ 

And  if  from  any  source,  the  court  is  led  to  suspect  that  its 
jurisdiction  has  been  imposed  upon  by  the  collusion  of  the  parties 
or  in  any  other  way,  it  may  of  its  own  motion  cause  the  necessary 
inquiry  to  be  made,  either  by  having  the  proper  issue  joined 
and  tried,  or  by  some  other  appropriate  form  of  proceeding,  and 
act  as  justice  may  require  for  its  own  protection  against  fraud 
or  imposition.^  In  such  a  case  the  party  that  sought  the  juris- 
diction of  the  Federal  court  should  have  an  opportunity  to  be 
heard  on  the  motion,  and  to  meet  it  by  appropriate  evidence." 
Objection  can  be  raised  by  niotion,^  which,  where  it  is  charged 

2  Williams  v.  Nottawa,  104  U.  S.       reviewable    upon    a    writ    of    error. 


209,  26  L.  ed.  719;  Consolidated 
Eubber  Tire  Co.  v,  Ferguson,  C.  C. 
A.,-  183  Fed.  756;  McEldowney  v. 
Card,  193  Fed.  475;  Sclareneo  v. 
Chicago  Bonding  Co.,  236  Fed.  592; 
Bueyrus  Co.  v.  MacArthur,  219  Fed. 
266;  Cerri  v.  Akron  People's  Tel. 
Co.,  219  Fed.  285;  Houck  v.  Bank 
of  Brinkley,  C.  C.  A.,  242  Fed.  881; 
Columbus  Ry.  Power  &  Light  Co.  v. 
City  of  Columbus,  253  Fed.  499, 
509;  N.  Y.  Life  Ins.  Co.  v.  John- 
son, C.  C.  A.,  255  Fed.  958. 

3  Williams  v.  Nottawa,  104  U.  S. 
209,  212,  26  L.  ed.  719,  720. 

4  Hartog  V.  Memory,  116  U.  S. 
588,  29  L.  ed.  725;  Davies  v.  La- 
throp,  13  Fed.  565;  Cuthbert  v. 
Galloway,  35  Fed.  466;  Deputron  v. 
Young,  134  IT.  S.  241,  33  L.  ed.  923. 
A  refusal  by  the  court  upon  the 
trial  to  allow  the  defendant  to  file 
a  plea  on  the  question  of  the  plain- 
tiff's  citizenship  was  held  not  to  be 


Mexican  C.  Ry.  Co.  v.  Pinkney,  149 
U.  S.  194,  37  L.  ed.  699. 

5  Phoenix-Buttes  Gold  Min.  Co.  v. 
Winstead,  226  Fed.  855;  Hastings 
V.  Hoog,  234  Fed.  103. 

esteigleder  v.  McQuesten,  198  U. 
S.  141,  49  L.  ed.  986. 

7  Hartog  V.  Memory,  116  U.  S. 
588,  29  L.  ed.  725;  Morris  v.  Gil- 
mer, 129  U.  S.  315,  32  L.  ed.  690; 
Gribble  v.  Pioneer  Press  Co.,  15 
Fed.  689,  5  McCrary,  73,  When 
jurisdiction  does  not  depend  upon 
diversity  of  citizenship  the  court 
cannot  of  its  own  action  inquire  in- 
to the  incorporation  of  the  com- 
plainant when  the  defendant  has 
waived  that  point.  Kardo  Co.  v. 
Adams,  C.  C.  A.,  231  Fed.  950. 

8  Hartog  v.  Memory,  116  U.  S. 
588,  590-592,  29  L.  ed.  725,  726, 
727;  Barry  v.  Edmunds,  116  XT.  S. 
550,  29  L."  ed.  729. 

9Ladew  v.  Tennessee  Copper  Co., 


§  363] 


DISMISSAL  FOK    WANT  OF   JURISDICTION 


1819 


tluit  lliere  was  collusion  in  tiic  niakiiig  and  alignnit-nt  of  the 
parties,  must  specify  the  parties  as  to  whom  the  collusion  is 
charged.^" 

A  question  of  fact  thereupon  arising  may  be  submitted  to 
a  jury.^^  But  it  has  been  held  that  neither  party  has  a  con- 
stitutional right  to  a  jury  trial. ^^ 

Except  under  extraordinary  circuiiistances,  the  (juestiou  should 
not  l)e  tried  upon  affidavits,^^  but  affidavits  may  be  used  to  su]i- 
plement  the  statements  in  the  pleadings  upon  such  a  motion.^* 

A  judge  cannot  thus  dismiss  or  i-emand  a  case  upon  his  per- 
sonal conviction,  although  it  amounts  to  a  moral  certainty;  tiie 
collusion  or  lack  of  jurisdiction  must  be  legally  jn-oved,  and 
appear  upon  the  record. ^^     Expressions  in   the  opinion   of  the 


179  Fed.  245;  Lewis  Blind  Stitch 
Co.  V.  Abetter  Felling  Mach.  Co., 
181  Fed.  974;  Am.  Sheet  &  Tin 
Plate  Co.  V.  Winzeler,  227  Fed.  321. 

10  Helm  V.  Zarecor,  222  U.  S.  32, 
35,  56  L.  ed.  77,  79. 

11  Gilbert  v.  David,  235  U.  S. 
561.  But  see  Kever  v.  Phila.  & 
Reading  Coal  &  Iron  Co.,  234  Fed. 
814,  816. 

12  Ibid. 

13  Kilgore  v.  Norman,  119  Fed. 
1006.  See  Putin-Bay  Water 
Works,  &c.,  Co.  V.  Ryan,  181  U.  S. 
409,  415,  45  L.  ed.  927,  930;  s.  C, 
Industrial,  &e.,  Co.  v.  El.  Supply 
Co.,  C.  C.  A.,  58  Fed.  732,  744;  s. 
C,  C.  C.  A.,  84  Fed.  740. 

14  Federal  Wall  Paper  Co.  v. 
Kempner,  244  Fed.  240. 

16  Barry  v.  Edmunds,  116  U.  S. 
550,  559,  29  L.  ed.  729,  732;  Depu- 
tron  V.  Young,  134  U.  S.  241,  252, 
33  L.  ed.  923,  929.  Where  a  plain- 
tiff had  acquired  the  causes  of  ac- 
tion which  he  sought  to  enforce, 
solely  for  the  purpose  of  collection 
in  the  Federal  courts  under  an 
agreement  to  pay  back  a  certain 
proportion  of  the  net  proceeds  to 
his  assignors,  who  could  not  have 
sued   therein,   it   was  held  that   the 


suit  should  be  dismissed.  Farming- 
ton  v.  Pillsbury,  114  U.  S.  138,  29 
L.  ed.  114;  Williams  v.  Xottawa, 
104  XT.  S.  209,  26  L.  ed.  719;  Ber- 
nards Tp.  V.  Stebbins,  109  U.  S.  341, 
27  L.  ed.  956;  New  Providence  v. 
Halsey,  117  U.  8.  336,  29  L.  ed.  904; 
Little  V.  Giles,  118  U.  S.  596,  30  L. 
ed.  269;  Woodside  v.  Beckham,  216 
U.  S.  117,  54  L.  ed.  408;  Norton  v. 
European  &  N.  A.  Ry.  Co.,  32  Fed. 
865;  Board  of  Com'rs  of  Lake 
County  v.  Schradsky,  C.  C.  A.,  97 
Fed.  1,  38  C.  C.  A.  17;  Edwards  v. 
Bates  County,  117  Fed.  526;  Turn- 
bull  v.  Ross,  C.  C.  A.,  141  Fed.  649. 
But  see  Lipsmeier  v.  Vehslage,  29 
Fed.  175;  Cole  v.  Phila.  &  E.  Ry. 
Co.,  140  Fed.  944 ;  William  H.  Perry 
Co.  V.  Klosters  Aktie  Bolag,  C.  C. 
A.,  152  Fed.  967.  Jurisdiction  does 
not  depend  upon  motive;  and  when 
there  has  been  an  actual  transfer, 
the  jurisdiction  is  not  defeated,  al- 
though it  appears  that  the  property 
was  given  to  complainant  to  enable 
him  to  sue  in  the  Federal  court. 
Fe  Cleland,  218  U.  S.  120,  54  L.  ed. 
962;  O'Neil  v.  Wolcott  Min.  Co.,  C. 
C.  A.,  174  Fed.  527.  Where  land 
worth  at  least  $1,800  was  conveyed 
bv  a  citizen  of  the  State  to  an  alien 


1820 


DISMISSAL   OF    BILLS 


[§363 


Circuit  Court  of  Appeals  that  the  court  below  had  no  juris- 
diction, do  not  necessarily  make  it  appear  to  the  satisfaction 
of  the  District  Court  that  such  was  the  case,  nor  compel  a  dis- 
missal when  the  mandate  does  not  so  direct. ■^^ 

If  the  case  is  dismissed  for  this  reason,  the  Supreme  Court 
of  the  United  States  may  review  the  decision  upon  the  facts, 
as  well  as  upon  the  law.^''^  If  the  jurisdiction  appears  upon 
the  record,  and  the  District  Court  refuses  to  dismiss  or  remand 
the  case  under  this  clause  of  the  statute,  the  Supreme  Court 
will  ordinarily  refuse  to  review  its  decision,^^  but  it  may  do 
so.^^  although  not,  it  has  been  said,  by  mandamus.^" 

A  determination  that  the  defendants  did  not  act  jointly,  when 
joint  conduct  by  them  is  charged  in  good  faith  in  the  complaint, 


laborer  without  means,  who  agreed 
to  pay  $600  for  the  same,  paid  only 
$10  in  cash,  and  gave  a  mortgage 
for  the  balance,  it  was  held  that  the 
facts  did  not  show  a  simulated 
transfer  nor  justify  a  dismissal  of 
the  bill.  Woodside  v.  Ciceroni,  C7 
C.  A.,  93  Fed.  1.  Where  persons 
largely  interested  in  a  Pennsylvania 
corporation,  in  order  to  procure 
the  appointment  of  a  receiver  by  a 
court  of  the  United  States,  caused 
certain  bonds  and  stock  of  little 
value  to  be  assigned  to  a  citizen  of 
New  Jersey,  a  stenographer  in  the 
office  of  one  of  the  attorneys  for 
the  corporation,  for  no  other  con- 
sideration than  the  signature  of  the 
bill ;  it  was  held  that  the  case 
should  be  dismissed  as  collusive  and 
fraudulent,  although  the  assign- 
ment was  absolute.  Kreider  v; 
Cole,  C.  C.  A.,  149  Fed.  647.  It 
was  held  that  a  suit  should  be  dis- 
missed for  collusion  when  the  trus- 
tee of  a  mortgage  sued  to  protect  a 
right  asserted  by  the  mortgagor, 
who  was  in  possession  and  not  in 
default.  Williams  v.  City  Bank  & 
Tr.  Co.,  C.  C.  A.,  186  Fed.  419.  See 
§§  41,  119,  mpra.  For  the  reversal 
of  a  judgment  of  dismissal  because 


the  evidence  did  not  prove  that  the 
value  of  the  matter  in  dispute  was 
below  the  jurisdictional  amount,  see 
Wetmore  v.  Rymer,  169  U.  S.  115, 
42  L.  ed.  682.  Cf.  Blackburn  v. 
Portland  Gold  Mine  Co.,  175  U.  S. 
571,  44  L.  ed.  276;  Howe  v.  Howe  & 
Owen  Ball  Bearing  Co.,  C.  C.  A., 
154  Fed.  820.  Before  the  Act  of 
1875,  it  was  held  that  a  defendant, 
between  whom  and  the  complainant 
the  requisite  difference  of  citizen- 
ship existed,  could  not  raise  an  ob- 
jection on  account  of  the  citizenship 
of  another  defendant.  Harrison  v. 
Uramm,  1  Story,  64;  Pond  v,  Vt. 
Valley  E.  Co.,  12  Blatchf.  280. 

16  Put-in-Bay  Water  Works,  etc., 
Co.  V.  Ryan,  181  U.  S.  409,  431,  45 
L.  ed.  927,  937;  Hartford  Fire  Ins. 
Co.  V.  Erie  R.  Co.,  172  Fed.  899. 

ITSmithcrs  v.  Smith,  204  U.  S. 
632,  51  L.  ed.  651 ;  Gilbert  v.  David, 
235  U.  S.  561. 

18  Putin-Bay  Water  Works,  etc. 
Co.  V.  Ryan,  181  U.  S.  409,  431,  45 
L.  ed.  927,  937. 

19  Little  V.  Giles,  118  U.  S.  596, 
30  L.  ed.  269. 

20i?e  Cleland,  218  U.  S.  120,  54 
L.  ed.  962. 


§  36.S]  DISMISSAL  FOR  WANT  OF  .lURISDICTIOX  1821 

is  a  decision  of  the  merits,  not  of  the  jurisdictional  facts,  and 
does  not  justify  such  a  dismissal.^i  Where  an  alias  summons 
had  been  ({uashed,  and  the  Federal  Court  had  no  power  to  issue 
process  that  would  subject  the  defendant  to  its  jurisdiction; 
the  case  was  remanded. ^^ 

It  has  been  said:  "The  court  will  not  concern  itself  with 
the  fact,  if  it  exists,  that  the  parties  to  the  cause  have  agreed 
to  submit  their  alleged  controversy  to  this  court;  if  there  is 
nothing  in  substance  to  support  the  theory  of  collusion,  other 
than  that,  the  fact  is  of  no  conse(iuence.  Provided  a  real  con- 
troversy between  the  parties  exists,  and  the  same  elements  of 
jurisdiction  obtain  as  if  the  action  were  forced  upon  the  de- 
fendant by  tlie  plaintiff,  the  court  will  not  inquire  into  the 
reason  why  the  parties  to  the  cause  entered  into  an  agreement, 
if  they  did,  to  bring  their  action  in  this  court  in  any  forra."23 

It  has  been  held  that  there  is  a  controversy  in  the  case,  and 
that  the  suit  is  not  collusive,  when  instituted  to  procure  the 
appointment  of  a  receiver  and  an  administration  of  its  assets 
by  two  creditors  without  judgments  or  securities,  at  the  request 
of  the  defendant.^* 

The  conveyance  of  all  the  property  of  a  partnership  to   a 

corporation,  organized  for  the  purpose   by   the    partners,    and 

the  division  between  them  of  its   capital    stock,   a   small    part 

only  of  which  consisted  of  lands  in  controversy   in  an  action 

subsequently  brought  by  the  corporation    in   a    Federal    court; 

was  held  not  to  be  such  a  transfer   as   to   defeat   the   court    of 

jurisdiction.^^ 

Where  substantially  all  the  property  of  the  corporation  was 

involved  in  the  litigation,  it  was  held  that  the  transaction  was 
a  fraud  upon  the  court,  and  jurisdiction  was  not  sustained. ^^ 
In  a  patent  suit  the  triviality  of  the  infringement  combined 
with  tlie  fact  that  defendant  had  desisted  from  the  acts  com- 
plained of  as  soon  as  its  attention  was  called  to  it  and  a  stipula- 

21  Smithers   v.    Smith,    204    U.    S.  403.     See  Bowdoin   College   v.  Mer- 
632,  633,  51  L.  ed.  656.  ritt,  63  Fed.   213. 

22  Stowe  V.  Santa  Fe  Pac.  R.  Co.,  26  Slaughter    v.    Mallet    Land    & 
117  Fed.  368.  Cattle  Co.,  C.  €.   A.,   141    Fed.  282. 

23  Stevens  v.  Ohio  State  Tel.  Co.,  See  supra,  S  45 

240  Fed.  759,  765.  26  Lehigh    Min.     &    Mfg.    Co.    v. 

ZiRe    Metropolitan    Railway    Re-       Kolly,  160  U.  S.  327,  140  L.  ed.  444. 
ceivership,  208  U.   S.  90,  52  L.   ed.  f 


1822 


DISMISSAL   OF    BILLS 


[§363 


tion  as  to  the  facts  were  held  to  be  insufficient  to  establish  that 
the  case  was  collusive.^''' 

The  appointment  of  an  alien  administrator  of  a  citizen  of 
the  United  States  with  no  acquaintance  with  the  decedent  or 
his  family  and  no  interest  in  the  estate  was  held  to  be  evidence 
of  such  collusion  as  to  justify  a  dismissal.^s 

When  a  case  was  brought  in  good  faith  but  the  controversy 
was  subsequently  settled  and  the  suit  is  continued  in  order  to 
obtain  an  adjudication,  it  should  be  dismissed  for  collusion.^* 

If  there  is  no  collusion  and  an  original  defect  in  the  juris- 
diction has  been  cured,^^  or  the  jurisdiction  appears  upon  the 
record,3i  before  the  objection  is  raised ;  the  suit  may  be  retained. 
It  has  been  said  that,  where  the  want  of  jurisdiction  does  not 
appear  on  the  record,  the  court  may  exercise  its  discretion  on 
determining  whether  it  will  permit  the  issues  of  fact  to  be  tried 
at  a  late  stage  of  the  case.32  It  has  been  held  that  where  the 
difference  of  citizenship  is  averred  in  the  plaintiff's  pleading, 
and  denied  by  defendant,  tiie  burden  of  proof  is  upon  the  de- 
fendant.** 

If  the  record  does  not  know  affirmatively  that  the  court  has 
jurisdiction,  the  case  may  be  dismissed  at  any  time  by  motion 
before   issue   joined,**   or   thereafter  at   the   close   of  plaintiff's 


27  Globe  Knitting  Works  v.  Segal, 
239  Fed.  322. 

28  Cerri  v.  Akron-People 's  Tel. 
Co.,  219  Fed.  285. 

29  Southern  Pac.  Co.  v.  Eshelman, 
227  Fed.  928.     See  infra,   §  705. 

30  Pacific  R.  Co.  V.  Ketchum,  101 
U.  S.  289,  299,  25  L.  ed.  932,  936. 

31  Mahoning  Valley  Ey.  Co.  v. 
O'Hara,  C.  C.  A.,  196  Fed.  945. 

32Briggs  v.  Traders'  Co.,  145 
Fed.  254.  But  see  Pennsylvania 
Co.  V.  Bay,  138  Fed.  203. 

33  Adams  v.  Shirk,  117  Fed.  801; 
Kilgore  v.  Norman,  119  Fed.  1006; 
Federal  Wall  Paper  Co.  v.  Kemp- 
ner,  244  Fed.  240."  See  Fentress 
Coal  &  Coke  Co.  v.  Elmore,  C.  C. 
A.,  240  Fed.  328.  The  defendant 
is  not  bound  to  convince  the  court 
^      of  its  lack  of  jurisdiction  to  a  legal 


certainty.      Simpson    v.    Phillipsdale 
Paper  Mill  Co.,  223  Ved.  661. 

34  Bicycle  S.  Co.  v.  Gordon,  57 
Fed.  529;  La  Vega  v.  Lapsley,  1 
Woods  428;  Municipal  Inv.  Co.  v. 
Gardiner,  62  Fed.  954.  But  see  Ful- 
ler V.  Metropolitan  L.  Ins.  Co.,  31 
Fed.  696.  "Such  an  objection 
ought  to  be  raised  at  the  first  oppor- 
tunity, and  delay  in  its  presentation 
should  be  considered  in  examining 
into  the  grounds  upon  which  it  is 
alleged  to  rest."  Deputron  v. 
Young,  134  U.  S.  241,  251,  33  L. 
ed.  923,  928.  The  fact  that  if  the 
suit  is  dismissed  the  cause  of  actiorf 
will  be  barred  by  the  Statute  of 
Limitations  is  no  ground  for  deny- 
ing the  motion.  Gilbert  v.  David, 
235  IT.  S.  561.  It  has  been  held 
that  upon  a  motion  to  dismiss,  leave 


§363] 


DISMISSAL  FOR  WANT  OF   JURISDICTION 


1823 


proofs ;  '^  after  as  well  as  before  judgment ;  and  the  objection 
may  be  taken  for  the  lii-st  time  in  the  appellate  court.^^  An 
appellate  eourt  will  rarely  direct  the  dismissal  of  a  ease  for  col- 
lusion; but  will  ordinarily  direct  a  trial  of  that  (piestion  by  the 
court  below. ^^  When,  after  all  the  pleadings  are  tiled  in  a  suit 
which  is  brought  in  or  lemoval  to  a  Federal  court  on  the  claim 
that  it  is  a  case  arising  under  the  Constitution  and  laws  of  the 
United  States,  it  api^ears  that  the  averments  upon  which  the 
jurisdiction  is  claimed  are  immaterial,  it  is  the  duty  of  the  court 
to  dismiss  or  remand  the  cause. ^^  Where  there  was  a  misjoinder 
of  causes  of  action  cognizable  only  at  law  with  others  cognizable 
only  in  equity  and  if  separated,  the  aggregate  of  neither  part 
equalled  the  jurisdictional  amount,  the  court  of  its  own  motion 
dismissed  the  bill.^®  To  justify  a  dismissal  under  this  statute, 
the  court  must  be  satisfied  that  the  object  was  to  create  a  case 
cognizable  in  the  Federal  Coiirt.^** 

Where  a  collusive  transfer  of  the  cause  of  action  was  evidently 
made  for  anotlier  purpose,  it  was  held  that  the  jurisdiction 
should  be  retained.*^  Admissions  bj'  the  defendant  after  a  suit 
is  brought  cannot  be  reducing  the  matter  in  dispute  divest  the 


to  amend  may  be  given  where  it 
does  not  affirmatively  appear  that 
the  court  has  no  jurisdiction.  Home 
Ins.  Co.  of  N.  Y.  V.  Nobles,  63  Fed. 
641. 

36  Streat  v.  American  Rubber  Co., 
11.1  Fed.   634. 

36  Grace  v.  Am.  C.  Ins.  Co.,  109 
U.  S.  278,  27  L.  ed.  93;  Bors  v. 
Preston,  111  U.  S.  252,  28  L.  ed. 
419;  Mansfield,  C.  &  L.  M.  Co.  v. 
Swan,  111  U.  S.  379,  28  L.  ed.  462. 

37  Ashley  v.  Supervisors  of 
Presquo  Isle  County,  C.  C.  A.,  60 
Fed.  55. 

38  Rolnnson  v.  Anderson,  121  U. 
S.  522,  30  L.  ed.  1021;  McCaim  v. 
Des  Moines,  174  U.  S.  168,  43  L. 
od.  946;  Rhrcveport  v.  Cole,  129 
r.  S.  36,  32  L.  ed.  589;  New  Or-' 
leans  v.  Benjamin,  153  IT.  S.  411, 
38  L.  ed.  764;  Minnesota  v.  No. 
Securities  Co.,  194  U.  S.  48,  65,  48 


L  ed.  870;  Excelsior  Wooden  Pipe 
Co.  V.  Pacific  Bridge  Co.,  185  U.  S. 
282,  288,  46  L.  ed.  910,  914;  supra, 
§  24.  But  see  Peoples'  Sav.  Bank 
V.  Layman,  134  Fed.  635;  where, 
there  being  two  questions  involved, 
one  Federal  and  the  other  not,  it 
was  held  that  the  decision  of  the 
Federal  question  adversely  to  the 
complainant  did  not  deprive  the 
court  of  jurisdiction  to  decide  in 
its  favor  upon  the  other  ground. 

39Bucyrus  Co.  v.  M 'Arthur  219 
Fed.  266;  Shrauger  &  Johnson  v. 
Phillip  Bernard  Co.,  247  Fed.  547, 
549. 

40  Lanier  v.  Nash,  121  U.  S.  404, 
410,  30  L.  ed.  949;  Manhattan  L. 
Ins.  Co.  v.  Broughton,  109  U.  S. 
121,  27  L.  ed.  878. 

41  Lanier  v.  Nash,  121  U.  S.  404, 
30  L.  ed.  947. 


1824  DISMISSAL   OF    BILLS  [§  364 

court  of  jurisdiction.*^  If  the  question  of  jurisdiction  is  doubt- 
ful, the  decision  thereupon  may  be  reserved  until  the  final  hear- 
ing."   The  dismissal  should  be  without  prejudice.** 

§364.  Motions  to  dismiss  because  the  complaint  shows  no 
cause  of  action.  Demurrers  have  been  abolished.^  Objections 
which  formerly  were  raised  by  demurrer  "shall  be  made  by 
motion  to  dismiss  or  in  the  answer;  and  every 'such  point  of 
law  going  to  the  whole  or  a  material  part  of  the  cause  or  causes 
of  action  stated  in  the  bill  may  be  called  up  and  disposed  of 
before  final  hearing  at  the  discretion  of  the  court. "  ^  "  If  the  de- 
fendant move  to  dismiss  the  bill  or  any  part  thereof,  the  motion 
may  be  set  down  for  him  by  either  party  upon  five  days'  notice, 
and,  if  it  be  denied,  answer  shall  be  filed  within  five  days  there- 
after, or  a  decree  pro  confesso  entered. ' '  ^  This  new  method  of 
procedure  is  borrowed  from  the  English  chancery  orders.*  The 
former  decisions  upon  demurrers,  as  well  as  the  English  cases 
upon  motions  to  dismiss,  will,  to  a  large  extent,  be  followed,  ex- 
cept in  so  far  as  they  relate  to  technical  questions.  Under  the 
equity  rule  that,  if  at  any  time  it  appears  that  a  sviit  commenced 
in  equity  should  have  been  brought  as  an  action  on  the  law  side 
of  the  court,  it  shall  be  forthwith  transferred  to  the  law  side 

42  Fuller  v.  Met.  L.  Ins.  Co.,  37  want  of  equity  could  not  be  made 
Fed.  163.  See  Chicago  C.  Co.  v.  before  the  hearing.  La  Vega  v. 
Fogg,  53  Fed.  72,  and  siipra,  §  22.  Lapsley,    1    Woods    428;     Beits    v. 

43  York  County  Sav.  Bank  v.  Al-  Lewis,  19  How.  72,  15  L.  ed.  576; 
bot,  131  Fed.  980.  Fuller  v.   Met.  L.  Ins.   Co.,  31  Fed. 

44  Thompson  v.  Railroad  Co.,  6  696.  But  see  Person  v.  Fidelity 
Wall.  134,  18  L.  ed.  765;  Kendig  Cas.  Co.,  84  Fed.  759.  Cf.  Willis  v. 
V.  Dean,  97  U.  S.  423,  24  L.  ed.  Willis,  42  W.  Va.  522;  s.  C,  26  S. 
1061;  Van  Noddon  v,  Morton,  99  E.  E.  515;  Carlsbad  v.  Tibbetts,  51 
U.  S.  378,  25  L.  ed.  453;  Williams  Fed.  852;  State  v.  Hemingway,  69 
V.  Nottawa,  104  U.  S.  209,  26  L.  Miss.  491;  Eeilly  v.  Reilly,  139  111. 
ed.  719.  A  New  York  court  said  180;  Russell  v.  Lamb,  82  Iowa,  558; 
that,  in  such  a  case,  the  case  re-  Am.  Bank  Protection  Co.  v.  City 
sembled  one  in  which  an  arbitrator  Nat.  Bank  of  Johnson  City,  Tenn., 
duly  chosen  had  refused  to  act  and  181  Fed.  375;  Hardinge  Conical 
pass  upon  the  claims  of  the  parties.  Mill  Co.  v.  Abbe  Engineering  Co., 
Dunlevie  v.  Spangenbery,  66  Misc.  182  Fed.  848;  Fay  v.  Hill,  C.  C. 
(N.  Y.)    364.  A.,  249  Fed.  415. 

§  364.     1  Eq.  Rule  29.  3  Eq.      Rule      29,      Southwestern 

2Eq.  Rule  29.    Under  the  former  Surety   Ins.   Co.   v.   Wells,  217   Fed. 

practice,  the  prevailing  opinion  was  294.     See  supra,  §§171,  172. 

that  a  motion  to  dismiss  a  bill  for  4  See   Odgers  on  Pleading  passin. 


§364] 


DISMISSAL  FOR  WANT   OF   EQLITY 


1825 


and  be  there  proceeded  with,  with  only  such  alterations  in  the 
pleadings  as  shall  be  essential,^  and  the  statute^  authorizing  the 
amendment  of  pleadings  so  as  to  obviate  the  objection  that  the 
suit  was  brought  in  equity  when  it  should  have  been  at  law;  a 
motion  to  dismiss  the  bill  because  the  complainant  has  an  ade- 
quate remedy  at  law  should  not  be  granted.'  It  has  been  said 
that  a  bill  cannot  be  dismissed  on  motion  unless  for  misjoinder, 
nonjoinder  or  insufficiency  of  facts  to  constitute  a  cause  of  ac- 
tion.' The  rule  contemplates  that  the  motion  be  made  before 
answer  but  the  court  may  entertain  it  at  any  time.® 

Upon  such  a  motion  no  facts  can  be  considered  except  tho.se 
which  appear  on  the  face  of  the  bill  including  the  exhibits  to 
which  the  bill  refers,^"  neither  allegations  in  the  defendant's 
answer,"  nor  affidavits  submitted  by  him ;  ^^  nor,  denials  by 
another  defendant ;  ^^  nor  even  records  of  the  court  which  show 
another  suit  pending  for  the  same  relief,"  or  that  a  person  not 
joined  is  an  indispensable  party  ;15  although  if  such  a  defect 
appear  upon  the  face  of  the  bill,  the  motion  will  be  granted,!^ 
except  admissions  made  by  the  complainant  in  answer  to  inter- 
rogatories in  the  suit,!''  g^d  records  produced  at  the  request  of 
complainant  "  which  it  has  been  held  will  have  the  same  effect 
as  if  set  forth  in  his  pleading.     When  the  motion  is  to  dismiss 


6  Equity  Eule  22.     Brown  v.  Kos- 
sove,  C.  C.  A.,  255  Fed.  806. 

6  Act  March  3,  1915,  eh.  90,  38 
St.  at  L.  951. 

7  Collins  V.  Bradley  Co.,  227  Fed. 
199. 

8  Tilden  v.  Barber,  227  Fed.  1010. 

9  Krouse  v.  Brevard  Tannin  Co., 
C.  C.  A.,  249  Fed.  5.38. 

10  Crown  Feature  Film  Co.  v.  Bet- 
tis  Amusement  Co.,  206  Fed.  362; 
Bogert  V.  Southern  Pae.  Co.,  211 
Fed.  776;  Adler  Goldman  Commis- 
sion Co.  V.  Williams,  211  Fed.  5.30; 
Scattergood  v.  American  Pipe  & 
Construction  Co.,  247  Fed.  712;  Old 
Dominion  Trust  Co.  v.  First  Nat. 
Bank  of  Oxford,  252  Fed.  712. 

11  Adler  Goldman  Commission  Co. 
V.  Williams,  211  Fed.  530;  Bogert 
V.  Southern  Pac.  Co.,  211  Fed.  776; 


Krouse   v.   Brevard   Tannin   Co.,   C. 
C.  A.,  249  Fed.  538. 

12  Crown  Feature  Film  Co.  v.  Bet- 
tis  Amusement  Co.,  206  Fed.  362. 

13  Boyd  V.  New  York  &  H.  R.  Co., 
220   Fed.   174. 

14  Adler  Goldman  Commission  Co. 
V.  Williams,  211  Fed.  531. 

15  Bogert  v.  Southern  Pac.  Co., 
211  Fed.  776. 

16  Hyams  v.  Old  Dominion  Co., 
204  Fed.  681. 

17Bronk  v.  Charles  H.  Scott  Co., 
C.  C.  A.,  211  Fed.  338.  But  see 
Buffalo  Specialty  Co.  v.  Van  Cleef, 
C.  C.  A.,  227  Fed.  391. 

18  Whitaker  v.  Whitaker  Iron  Co., 
238  Fed.  983;  A.  G.  Wineman  & 
Sons  V.  Reeves,  C.  C.  A.,  245  Fed. 
254. 


1826 


DISMISSAL   OF    BILLS 


[§364 


the  whole  bill  and  any  part  of  the  bill  is  good,  the  whole  motion 
may  be  denied.i^  j^  ^as  been  said  that  a  legal  proposition  which 
affects  less  than  the  whole  case  made  by  a  bill  should  not  be  de- 
cided in  advance  of  the  final  hearing,  unless  such  decision  will 
add  to,  or  eliminate  from  the  case  a  clearly  defined  and  easily 
stated  mass  of  testimony,  the  presence  or  absence  of  which  will 
not  change  or  affect  the  method  of  presenting  other  points  in 
the  litigation.^'' 

The  fact  that  a  judge  has  granted  leave  to  file  a  bill  is  per- 
suasive but  not  controlling  upon  a  motion  to  dismiss.  It  has 
been  held  that  an  order  dismissing  a  bill  with  leave  to  amend 
when  not  appealed  from  is  res  adjudicata  of  the  insufficiency 
of  the  original  bill  in  subsequent  proceedings.^^ 

Upon  such  a  motion  after  answer,  the  admissions  or  other 
affirmative  allegations  in  the  answer  may  be  used  by  the  com- 
plainant to  cover  a  weakness  in  his  bill.^^  In  a  suit  for  the 
infringement  of  a  trade-mark  or  a  trade-name  or  for  unfair 
competition,  there  will  be  no  presumption  that  the  articles  sold 
and  manufactured  by  the  plaintiff  are  patented,  in  the  absence 
of  an  allegation  in  his  bill  to  that  effect.^^ 

Where  the  question  is  doubtful  and  it  is  probable  that  the 
facts  elicited  upon  the  trial  will  make  it  more  easy  of  decision, 
the  motion  may  be  denied.^*  Where  in  a  bill  of  equity  there  was 
a  misjoinder  of  several  complainants  each  stating  a  separate 
cause  of  action  at  common  law,  the  suit  was  not  dismissed,  but 
each  complainant  was  permitted  to  file  a  separate  pleading  at 
law.25  But  where  the  plaintiff  sued  to  enforce  the  statutory 
liability  of  six  stockholders  it  was  said  that  the  court  did  not 
err  in  dismissing  the  suit  instead  of  transferring  it  to  the  com- 


19  General  Inv.  Co.  v.  Lake  Shore 
&  M.  S.  Ry.  Co.,  C.  C.  A.,  250  Fed. 
160,  172. 

20  Boyd    V.    N.    Y.    &    H 
220  Fed.  174. 

21  Presidio    Min 


C.  C.  A.,  261  Fed. 


Co. 
93.'!. 


V. 


&    H, 


E.    Co., 

Overton, 

R.    Co., 


22  Boyd    V.    N.    Y 
220   Fed.   174. 

23  Russell  V.   Shippen  Bros.   Lum- 
ber Co.,  224  Fed.   254. 

24  Watson   V.    Hunting,    C.   C.    A., 


215  Fed.  472;  Alexander  v.  Fidelity 
Trust  Co.,  C.  C.  A.,  214  Fed.  495; 
Armstrong  Cork  Co.  v.  Ringrvalt 
Linoleum  Works,  C.  C.  A.,  240  Fed. 
1022;  Ralston  Steel  Car  Co.  v.  Na- 
tional Dump  Car  Co.,  222  Fed.  590; 
Collins  V.  Bradley  Co.,  227  Fed. 
199;  Wright  v.  Barnard,  233  Fed. 
329;  United  States  v.  Bergner  & 
Engel  Brewing  Co.,  260  Fed.  764. 

25  Wright    V.    Barnard,    233    Fed. 
329. 


§  366] 


ADMISSIONS  BY    MOTION    To   DISMISS 


1S2( 


mon  law  side  of  the  court  where  it  would  have  been  necessary 
to  transform  it  into  six  separate  act  ions. ^^ 

§365.  Demurrers  under  the  former  practice.  A  tlemunfi- 
was  a  pleading  which  admitted  the  truth  of  a  bill,  but  claimed 
that  the  defendant  shoukl  be  excused  from  answering  thereto 
and  the  complainant  be  denied  relief  on  account  of  some  irregu- 
larity or  insufficiency  existing  in  it.  As  the.  name  denotes,  de- 
murrers were  borrowed  from  the  common  law.^  They  are  so 
termed  because  the  defendant  demoratur,  or  will  go  no  farther.^ 
It  has  been  said  that  a  demurrer  must  not  be  addressed  to  a 
point  within  the  discretion  of  the  court ;  and  if  so,  that  it  will 
be  overruled.'  A  demurrer  might  be  to  the  whole,  or  to  a  part  of 
a  bill,*  or  to  both  the  whole  and  separate  parts  of  a  bill.^  Sepa- 
rate demurrers  might  be  filed  for  different  causes  to  separate 
parts  of  a  bill.^  If  only  a  part  of  the  bill  were  demurred  to,  the 
demurrer  had  to  be  accompanied  by  a  plea  or  answer  to  what 
remains^ 

§366.  Admissions  by  a  motion  to  dismiss.  A  motion  to  dis- 
miss ^  like  a  demurrer  ^  admits  the  truth  of  the  allegations  of 
fact  in  the  bill.  "As  a  matter  of  construction  of  an  ambiguous 
clause,  the  court  is  bound  to  adopt  that  interpretation  which  is 
least  favorable  to  the  plaintiff;  but  the  defendant  is  not  entitled 
to  press  this  principle  so  far  as  to  draw  any  inferences  of  fact 
he  pleases  which  may  happen  to  be  not  inconsistent  with  the 
averments  of  the  bill."^     It  has  been  said  that  "reasonable 


26  Clinton  Mining  &  Mineral  Co. 
V.  Cochran,  C.  C.  A.,  247  Fed.  449. 

§36.5.  ILangdoll's  Eq.  PI., 
§§5.3,  92. 

2Danieirs  Ch.  Pr.  (5th  Am.  ed.), 
543;  3  Bl.  Com.  314. 

SVerplank  v.  Caines,  1  J.  Ch. 
(N.  Y.)   57. 

4  Equity  Rule  32. 

5  Int.  T.  C.  Lumber  Co.  v.  Mar- 
ner,  44  Fed.  621. 

6  North  V.  Earl  of  Strafford,  3  P. 
Wms.  148;  Eoberdeau  v.  Eons,  1 
Atk.  544;  Danicll's  Ch.  Pr.  (5th 
Am.  ed.)    584. 

7  See  Story's  Eq.  PI.,  §442;  Dan- 
iell's  Ch.  Pr.    (.5th   Am.   ed.)    583. 


§366.  1  Detroit  United  Railway 
V.  City  of  Detroit,  248  U.  S.  420; 
Fordham  v.  Hicks,  224  Fed.  810: 
Lowenthal  v.  Georgia  Coast  &  P. 
R.  Co.,  233  Fed.  1010;  Puder  v. 
Agler,  242  Fed.  95;  Forbes  v.  Wil- 
son, 243  Fed.  266;  First  Nat  Bank 
V.  Durr,  246  Fed.  163. 

2  Bailey  v.  Birkenhead,  L.  &  C. 
J.  Ry.  Co.,  12  Beav.  433,  443;  Pac. 
R.  Co.  of  Mo.  V.  Mo.  Pac.  Ry.  Co., 
m  V.  S.  505,  522,  28  L.  ed.  498, 
.104;  Boyer  v.  Boyer,  113  U.  S.  689, 
701,  28  L.  ed.  1089,  1092. 

3  Sir  Page  Wood,  V.  C,  in  Simp- 
son V.  Fogo,  1  .T.  Ji:  H.  18,  23;  S.  C, 


1828 


DISMISSAL   OF    BILLS 


[§366 


presumptions  are  admitted  by  demurrer  as  well  as  the  matters 
expressly  alleged."  *  The  court  will  not  infer  from  an  allegation 
that  a  fraud  was  committed  at  a  time  beyond  the  limit  of  the 
Statute  of  Limitations  that  the  fraud  was  then  discovered.^  "A 
demurrer  only  admits  facts  well  pleaded;  it  does  not  admit 
matters  of  inference  and  argument,  however  clearly  stated;  it 
does  not  admit,  for  example,  the  accuracy  of  an  alleged  con- 
struction of  an  instrument,  when  the  instrument  itself  is  set 
forth  in  the  bill,  or  a  copy  is  annexed,  against  a  construction 
required  by  its  terms,  nor  the  correctness  of  the  ascription  of 
a  purpose  to  the  parties  when  not  justified  by  the  language  used. 
The  several  averments  of  the  plaintiff  in  the  bill  as  to  his  under- 
standing of  his  rights,  and  of  the  liabilities  and  duties  of  others 
under  the  contract,  can,  therefore,  exert  no  influence  upon  the 
mind  of  the  court  in  the  disposition  of  the  demurrer. ' '  ^  The 
preponderance  of  authority  holds:  That  where  profert  is  made 
of  a  recorder  paper,  it  is  for  all  purposes  preseilted  to  the  court 
as  a  part  of  the  pleading,  and  an  objection  to  the  same  may  be 
taken  bv  demurrer.'^ 


6    Jurist    (N.S.)    949.      See    Union 
Pac.    R.    Co.    V.   Mercer,   28   Fed.   9. 

4  Clifford,  J.,  in  Amory  v.  Law- 
rence, 8  Clifford,  523,  526. 

5  Sheldon  v.  Keokuk  N.  L.  P.  Co., 
8  Fed.  769,  777;  Johnson  v.  Pow- 
ers, 13  Fed.  315;  Jones  v.  Slaw- 
son,  33  Fed.  632,  636. 

6  Field,  J.,  in  Dillon  v.  Barnard, 
21  Wall.  430,  437,  438,  22  L.  ed. 
673,  676,  677.  See  also  s.  c,  1 
Holmes  386;  U.  S.  v.  Ames,  99  U. 
S.  35,  4.5,  25  L.  ed.  295,  300;  Cor- 
nell V.  Green,  43  Fed.  105,  107; 
Interstate  L.  Co.  v.  Maxwell  L.  Co., 
139  U.  S.  569,  35  L.  ed.  278;  Wil- 
lard  V.  Davis,  122  Fed.  363.  Wliere 
deeds  and  other  written  instruments 
were  set  out  in  a  pleading  from 
which  a  certain  inference  as  to 
their  legal  effect  might  plausibly  be 
drawn,  but  it  was  alleged  as  a  fact 
that  a  reason  existed  for  their  exe- 
cution which  would  justify  a  differ- 


ent inference  as  to  their  legal  ef- 
fect, it  was  said  that  it  could  not 
be  held  on  demurrer,  that  tlie  for- 
mer inference  should  and  the  lat- 
ter should  not,  be  drawn,  but  proof 
must  be  adduced  to  show  the  actual 
facts  which  determine  the  proper 
effect  of  the  instruments.  Smith 
V.  Glasgow  Ins.  Co.,  C.  C.  A.,  74 
Fed.  332. 

7Bogart  V.  Hinds,  25  Fed.  484; 
Knott  V.  Burleson,  2  G.  Greene 
(Iowa)  600;  Wilder  v.  MeCormick, 
2  Blatchf.  31,  35;  Grahame  v. 
Cooke,  1  Cranch,  C.  C.  116;  Doug- 
lass V.  Rathbone,  5  Hill  (N.  Y.) 
143 ;  Rantin  v.  Robertson,  2  Strobh. 
Law  (S.  C.)  366;  1  Chitty's  PI. 
415,  416.  So  held  of  patents  and 
reissued  patents,  in  International 
T.  C.  L.  Co.  V.  Maurer,  44  Fed. 
618,  619;  Enterprise  Mfg.  Co.  v. 
Snow,  67  Fed.  335;  U.  S.  Credit 
S.    Co.   V.   Am.   Credit   Co.,   53   Fed. 


§  366a] 


EFFECT  OF  CONCLUSIONS  OF  LAW 


1829 


§  366a.  Effect  of  conclusions  of  law  upon  motions  to  dis- 
miss. A  demurrer  did  not  admit  conclusions  of  law  ;  and  in 
the  construction  of  the  bill  upon  the  argument  they  might  be 
disregarded.^  Such,  for  example,  are  allegations  that  a  State 
statute  is  unconstitutional  and  a  direct  burden  on  interstate 
commerce  and  au  impairment  of  the  usefulness  of  the  com- 
plainant's facilities  for  that  purpose;''  that  orders  by  the  inter- 
state commerce  commission  were  beyond  its  powers  and  as  to 
the  effect  of  the  same  upon  the  carriers  subject  thereto ;  ^  that 
a  certain  combination  and  agreement  is  a  conspiracy  or  a 
monopoly;*  that  a  tax  is  ''unreasonable  and  excessive,"  with- 
out the  statement  of  any  valid  reasons  for  so  considering  it ;  ^ 
that  a  fee  charged  by  an  ordinance  styling  it  wharfage  "is  not 
real  wharfage,  but  a  duty  on  tonnage."^  That  a  statutory 
sale  was  not  sufficiently  advertised.'''  That  certain  property  is 
held  in  trust.'  "The  words  'fraud'  and  'conspiracy'  alone, 
no  matter  how  often  repeated  in  a  pleading,  cannot  make  a  case 
for  the  interference  of  a  court  of  equity.  Until  connected  with 
some  specific  acts  for  which  one  person  is  in  law  responsible  to 
another  they  have  no  more  effect  than  other  words  of  unpleasant 
signification. "  9      The    words    "fraudulently,"    "deceitfully," 


818;  Germain  v.  Wilgus,  67  Fed. 
597 ;  Heaton  P.  B.  F.  Co.  v.  Sehloch- 
termeyer,  69  Fed.  592;  Edison  v. 
Am.  Mutoseope  &  B.  Co.,  127  Fed. 
361 ;  Hogan  v.  Westmoreland  Spe- 
cialty Co.,  145  Fed.  199.  But  see  In- 
durated F.  Ind.  Co.  V.  Grace,  52 
Fed.  124,  128;  supra,  §§  144, 147.  In 
Ulman  v.  Jaeger,  67  Fed.  980,  982, 
held  that  exhibits  filed  with  a  bill 
are  upon  a  demurrer  to  be  read  as 
part  of  the  bill.  Contra,  held  under 
Code  practice  in  Penrose  v.  Pae. 
Mut.  L.  I.  Co.,  66  Fed.  253.  See 
Kesher  v.  Lyon,  40  W.  Va.  161,  20 
S.  E.  933. 

§366a.  1  Dillon  v.  Barnard,  21 
Wall.  430,  22  L.  ed.  673;  Wilson  v. 
Gaines,  103  U.  S.  417,  26  L.  ed. 
401;  Packet  Co.  v.  Catlcttsburg, 
105  U.  S.  559,  26  L.  ed.  1169; 
Transportation  Co.  v.  Parkersburg, 
107  U.  S.  691,  27  L.  ed.  584;  Louis- 
Fed.  Prac.  Vol.  11—45 


ville  &  N.  K.  Co.  v.  Palmes,  109 
U.  S.  244,  27  L.  ed.  922;  supra, 
ij  137. 

2  Southern  Ry.  Co.  v.  King,  217 
U.  S.  524,  54  L.  ed.  868. 

3  Interstate  Commerce  Commis- 
sion V.  Goodrich  Transit  Co.,  224 
U.  S.  104,  204,  205,  56  L.  ed.  729, 
733,  734. 

4  Continental  Securities  Co.  v. 
Intcrborough  Rapid  Transit  Co., 
165  Fed.  945,  955. 

6  Packet  Co.  v.  Catlettsburg,  105 
U.  S.  559,  26  L.  ed.  1169. 

6  Transportation  Co.  v.  Parkers- 
burg, 107  U.  S.  691,  27  L.  ed.  584. 

7  Strauss  v.  Foxworth,  231  U.  3. 
162. 

8  Alexander  v.  Fidelity  Tr.  Co.. 
215  Fed.  791. 

9  Waite,  C.  J.,  in  Ambler  v. 
Choteau,  107  U.   S.  586.  591.  27  L. 


1830 


DISMISSAL   OP    BILLS 


[§  366a 


and  "by  mistake"  are  conclusions  of  law,  and  will  be  disre- 
garded.^® Averments  that  what  was  done  was  "colorable,"  "a 
fraud,"  "a  breach  of  trust,"  and  "a  scheme  by  which  Blair 
and  Taylor  w^ere  to  get"  certain  stock  or  shares  of  stock  in  a 
corporation  "without  paying  for  them,"  are  allegations  of  con- 
clusions of  law,  Avhicli  a  demurrer  did  not  admit. -^^  An  allega- 
tion, that  defendant  received  certain  property,  in  trust,  is  a 
conclusion  of  law.^^  An  allegation,  that  plaintiff  is  a  preferred 
stockholder,  without  stating  the  facts  concerning  the  contract 
under  which  the  stock  was  issued,  is  a  conclusion  of  law.^^  The 
following  averment  was  held  to  be  an  allegation  of  fact,  which 
was  admitted  by  a  demurrer,  and  not  to  be  a  conclusion  of  law : 
"The  business  of  the  complainants  is  founded  almost  exclu- 
sively on  the  physical  and  practical  proposition  that  the  mind 
of  the  human  race  is  largely  responsible  for  its  ills,  and  is  a  per- 
ceptible factor  in  the  treating,  curing,  benefiting  and  remedying 
thereof,  and  that  the  human  race  does  possess  the  innate  power, 
through  proper  exercise  of  the  faculty  of  the  brain  and  mind, 
to  largely  control  and  remedj^  the  ills  that  humanity  is  heir  to, 
and  (complainants)  discard  and  eliminate  from  their  treatment 
what  is  commonly  known  as  divine  healing  and  Christian  science, 
and  they  are  confined  to  practical  scientific  treatment  emanat- 
ing from  the  sources  aforesaid."^*  When  the  value  of  the 
matter  in  dispute  is  not  liquidated  by  law,  a  statement  as  to  the 
same  was  admitted  by  a  demurrer.^^  An  averment  that  a  thing 
was  done  with  the  intent  to  defraud  is  an  allegation  of  facf.^^ 
An  allegation  as  to  the  future  effect  of  an  act  threatened  by  the 
defendant  was  held  to  be  admitted  by  a  demurrer.^'''     An  aver- 


ed.  .322,  .324.  For  allegations  held 
suflBeient,  see  Pac,  E.  of  Mo.  v.  Mo. 
Pac.  Ry.  Co.,  Ill  U.  S.  505,  28  L. 
ed.  498. 

10  Magniac  v.   Thompson,  2  "Wall. 
Jr.  209;  supra,  §S  136,  137. 

11  Fogg   V.  Blair,   139   U.   S.    118, 
127,  35  L.  ed.  104,  107. 

12  Young  V.  Mercantile  Trust  Co., 
140   Fed.  61. 

13  Hackett   v.   Northern   Pac.   Ry. 
Co.,  140  Fed.  717. 

14  Am.   School   of  Magnetic   Heal- 


ing V.  MeAnnulty,  187  U.  S.  94,  103, 
47  L.  ed.  90,  94. 

15  Texas  &  Pac.  Ry.  v.  Kuteman, 
C.  C.  A.,  54  Fed.  547;  Louisville  & 
N.  R.  Co.  V.  Smith,  C.  C.  A.,  128 
Fed.  1 ;  supra,  §  6. 

16  Piatt  V.  Mead,  9  Fed.  91. 

17  St.  Louis  V.  Knapp  Co.,  104  U. 
S.  658,  26  L.  ed.  883.  In  Button 
V.  .Tosei)h  Bancroft  &  Sons,  83  Fed. 
17,  it  was  held  that  a  bare  allega- 
tion that  certain  matters  "will  be" 
done  was  insufficient. 


§  366b J 


EFFECT  OF   JUDICIAL  NOTICE 


18:J1 


meiit  tliat  the  injury  would  be  irreparable  is  not."  It  has  been 
held:  that  an  allegation  as  to  the  law  of  a  foreign  country  is. 
admitted  by  a  dcniurrer.i^  In  a  suit  for  the  infringement  of 
certain  trademarks;  it  was  held,  that  the  objection  that  they 
were  invalid,  because  consisting  of  geograi)liii'al  names,  could 
not  be  considered  upon  demurrer. ^^ 

§  366b.  Elfect  upon  a  motion  to  dismiss  of  facts  of  which  the 
court  takes  judicial  notice.  A  motion  to  dismiss  will  not  ad- 
mit a  false  allegation  concerning  a  fact  of  which  the  court 
wall  take  judicial  notice. ^  Thus,  a  demurrer  does  not  admit  the 
allegation  that  a  town  is  in  a  certain  county  in  the  district,  when 
in  fact  it  is  in  another  county  of  which  the  court  can  take  judi- 
cial notice. 2  Upon  such  a  motion  to  a  bill  against  the  infringe- 
ment of  a  patent  the  court  may  take  judicial  notice  of  facts 
within  the  common  knowledge  of  persons  ordinarily  well  in- 
formed; and  it  may  refresh  its  recollection  upon  the  subject 
by  a  reference  to  books  published  before  the  application,  which 
show  that  the  patent  is  void  for  lack  of  novelty,  utility  or 
patentability. 3  l>ut  it  will  not  apply  any  special  knowledge 
which  the  judge  may  possess,*  nor  investigate  the  prior  state  of 
the  art,^  nor  even,  it  has  been  said,  examine  other  patents  men- 


is  Indian  Land  &  Tr.  Co.  v. 
Shoenfelt,  C.   C.  A.,   135  Fed.  484. 

19  Ligeois  v.  McCracken,  10  Fed. 
6(54;  XX  Harvard  I^aw  Review,  74. 
Contra,  Knickerbocker  Trust  Co.  v. 
Iselin,  185  N.  Y.  r>[,  113  Am.  St. 
B('\K  86:!. 

20  Jewish  Colonization  Ass  'n  v. 
Solomon,  125  Fed.  994. 

§  3661..  1  Taylor  v.  Barclay,  2 
Simons,  21:'..  Cf.  Louisville  &  N. 
R.  Co.  v.  Palmes,  109  U.  S.  244, 
252,  27  L.  ed.  922,  924;  Pierce  Oil 
Cdrp'n  V.  City  of  Hope,  248  U.  S. 
498.  See  authorities  cited,  supra, 
§  329a. 

2  Ross  V.  Fort  Wayne,  63  Fed. 
466. 

3  Am.  Fibre  Ch.  Co.  v.  William- 
son, 69  Fed.  247;  Am.  Fibre  Ch. 
Co.  v.  Buckskin  F.  Co.,  C.  C.  A.. 
72  Fed.  508;  Fowler  v.  New  York, 
C.   C.    A.,   122   Fed.   747;    Hogan   v. 


Westmoreland  Sjiecialty  Co.,  145 
Fed.  199;  Gilbert  Mfg.  Co.  v.  Post 
&  Lester  Co.,  189  Fed.  81;  Charles 
Boldt  Co.  v.  Nivison-Weiskopf  Co., 
C.  C.  A.,  194  Fed.  871.  See  an  es- 
say by  Samuel  H.  Fisher  in  5  Yale 
I.nw  J.  213.  But  see  Krell  Auto 
(iraiid  Piano  Co.  v.  Story  &  Clark 
Co.,  C.  C.  A.,  207  Fed.  946. 

4  Cleveland  F.  Co.  v.  Vulcan  B. 
Co.,  72  Fed.  505;  International 
Mausoleum  Co.  v.  Sievert,  197  Fed. 
936.  Affi'd  C.  C.  A.,  213  Fed.  225. 
See  Bronk  v.  Charles  A.  Scott  Co., 
C.  C.  A.,  211  Fed.  338. 

5  Rowe  V.  Blodgett  &  Co.,  87  Fed. 
868;  Star  Ball  Retainer  Co.  v. 
Klahn.  145  Fed.  8.34;  Voightmann 
V.  Seely,  176  Fed.  371;  Corona 
Cliem.  Co.  V.  Latimer  Cliem.  Co,  C. 
C.  A.,  248  Fed.  493.  Wright  v.  Wis- 
consin Lime  &  Cement  Co.,  C.  C. 
A.,  239  Fed.  534. 


1832 


DISMISSAL   OF    BILLS 


[§367 


tioned  in  the  bill,^  nor  recitals  as  to  the  prior  state  of  the  art 
in  the  specifications  of  tJie  letters-patent  of  Avhich  profert  is 
made ; '''  nor  dismiss  such  a  bill  because  in  previous  suits  against 
other  parties  the  patent  has  been  held  by  a  court  of  review  to  be 
invalid  when  the  complainant  asks  an  opportunity  to  offer  new 
evidence.*  In  the  case  of  a  design  patent  the  disposal  of  the 
controversy  upon  such  a  motion  is  encouraged.^  Every  doubt 
was  resolved  against  the  demurrer.^"  The  patent  is  not  held 
invalid  unless  the  court  is  entirely  satisfied  from  its  face  that 
by  no  possible  proof  can  patentable  invention  and  validity  be 
made  to  appear."  It  has  been  said  that  it  requires  a  very  clear 
case  to  justify  the  dismissal  of  the  bill  because  of  facts  of  which 
the  court  takes  judicial  notice. ^^ 

§  367.  Classification  of  demurrers.  Demurrers  were  either 
to  the  relief  or  to  the  discovery.  Demurrers  to  the  relief  claim 
that  for  some  reason  apparent  upon  the  face  of  the  bill  the 
plaintiff  is  not  entitled  to  the  relief  prayed  for  in  it.  They  are 
classified  by  Mitford,  afterwards  Lord  Redesdale,  substantially 
as  follows :  1  Demurrers  to  the  relief  are  founded  on  objections 
to  the  jurisdiction;  to  the  person;  or  to  the  matter  of  the  bill, 
either  in  substance  or  in  form.  Demurrers  to  the  jurisdiction 
are  allowed  either  (1)  because  the  subject  of  the  suit  is  not 
within  the  jurisdiction  of  a  court  of  equity;  or  (2)  because 
some  other  court  of  equity  has  the  proper  jurisdiction.  A  de- 
murrer of  this  last  class  was  much  more  frequent  here  than  in 
England.  For  the  rule,  that  in  a  superior  court  of  general 
jurisdiction  the  presumption  is  that  nothing  shall  be  intended 
out  of  its  jurisdiction  that  is  not  shown  or  intended  to  be  so,'^ 


6  Cleveland  F.  Co.  v.  Vulcan  B. 
Co.,  72  Fed.  505;  Southern  Plow 
Co.,  V.  Atlanta  Agricultural  Works, 
165  Fed.  214;  Voightmann  v.  Seely, 
176  Fed.  371. 

7  Indurated  F.  I.  Co.  v.  Grace, 
52  Fed.   124. 

SMallinson  v.  Eyan,  242  Fed. 
951. 

SBayley  &  Sons  v.  Blumberg,  C. 
C.  A.,  254  Fed.  696. 

lOKrell  Auto  Grand  Piano  Co. 
V.    Story    Clark    Co.,    C.    C.    A.,    207 


Fed.  946;  Am.  Safety  Device  Co. 
V.  Liebel  Binney  Const.  Co.,  C.  C. 
A.,  243  Fed.  575. 

11  Jackes-Evans  Mfg.  Co.  v.  Hemp 
&  Co.,  C.  C.  A.,  140  Fed.  254. 

12Eose  Mfg.  Co.  V.  E.  A.  White- 
liouse  Mfg.  Co.,  193  Fed.  69. 

§367.  1  Mitford 's  PI.,  ch,  11, 
§  2. 

SDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
615;  Earl  of  Derby  v.  Duke  of 
Athol,  1  Ves.  Sen.  203. 


§  367] 


CLASSIFICATION  OF  DEMURRERS 


1833 


does  not  apply  to  the  courts  of  the  United  States ;  whose  juris- 
diction is  confined  to  what  is  expressly  given  them  by  the  Con- 
stitution and  statutes  and  must  always  appear  upon  the  record.^ 
It  was  held  that  the  objection  that  one  of  two  plaintiffs  suing 
to  enforce  a  common,  not  a  joint  right,  is  a  citizen  of  the  same 
State  as  a  defendant,  could  not  be  raised  by  a. demurrer  to  the 
whole  bill.*     Causes  of  demurrer  to  the  person  were :  that  it 
appears  upon  the  face  of  the  bill  that  the  plaintiff  has  not  the 
legal  capacity  to  sue;  either  at  all,  as  an  alien  enemy,  or  an 
unincorporated  association  suing  as  a  corporation ;  or  alone,  as 
an  infant,  idiot,  lunatic,  and  in  some  States  a  married  woman.* 
Demurrers  to  the  substance  of  a  bill  were  that  it  appears  upon 
the  face  of  the  bill:     (1)  That  the  plaintiff  has  no  interest  in 
the  subject-matter  of  the  bill.     It  has  been  held  that  the  objec- 
tion that  one  of  two  plaintiff's  has  no  interest  in  the  subject- 
matter  can  be  raised  by  a  general  demurrer  for  want  of  equity.^ 
(2)  That  the  defendant  is  not  answerable  to  him,  but  to  some 
other  person.     (3)   That  the  defendant  has  no  interest  in  the 
subject-matter  of  the  suit.     (4)  That  the  plaintiff  is  not  entitled 
to  the  relief  he  prays ;  but  if  the  bill  showed  a  case  for  some  re- 
lief, and  yet  asked  for  too  much  or  the  wrong  relief,  it  was  not 
demurrable  provided  it  contained  the  prayer  for  general  relief."^ 
(5)  That  the  value  of  the  subject-matter  is  beneath  the  dignity 
of  the  court.     In  England  the  Court  of  Chancery  declined  to 
interfere  when  the  value  of  the  matter  in  dispute  was  less  than 
ten  pounds,  except  in  suits  brought  by  or  on  behalf  of  charities 
and   under  bills  to  obtain   relief  on  account  of  fraud,   or  to 
establish  a  right.®    In  the  District  Courts  of  the  United  States 


3  Turner  v.  Bank  of  N.  A.,  4  Dall. 
8;   Godfrey  v.  Terry,  97  U.  S.  171. 

4  Nebraska  City  Nat.  Bank  v. 
Nebraska  City  H.  G.  L.  Co.,  14  Fed. 
76.3.  But  see  Hodge  v.  North  Mo. 
E.  Co,  1  Dill.  104. 

5  Supra,  §§  87-89.  A  bill  filed  by 
a  next  friend  was  held  demurrable 
when  it  did  not  show  that  the  plain- 
tiff was  disaliled  to  sue  alone.  West 
V.  Eeynolds,  35  Fla.  817,  71  So.  740. 
See  also  Wheeler  &  Wilson  Mfg.  Co. 
V.  Filer,  52  N.  J.  Eq.  164;  Paige  v. 
Broadfoot,  100  Ala.  610. 


6  Hodge  V.  North  Mo.  B.  Co.,  1 
Dill.  104.  But  see  Nebraska  C.  Nat. 
Bank  v.  Nebraska  C.  H.  G.  L.  Co., 
14  Fed.  763. 

7  Patrick  v.  Isenhart,  29  Fed. 
3.'?9;  Whitbeek  v.  Edgar,  2  Barb. 
Ch.   (N.  Y.)   106. 

SDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
378,  379;  Brace  v.  Taylor,  2  Atk. 
253;  Moore  v.  Lyttle,  4  J.  Ch.  (N. 
Y.)   183. 


1834 


DISMISSAL   OF    BILLS 


L§367 


the  bill  should  show  affirmatively  that  the  matter  in  dispute, 
exclusive  of  interest  and  costs,  exceeds  three  thousand  dollars,* 
except  in  certain  cases  for  which  the  statute  specially  provides.^" 
(6)  That  the  bill  does  not  embrace  the  whole  matter  concerning 
which  the  suit  is  brought,  and  which  is  capable  of  being  imme- 
diately disposed  ©f,  so  that  there  is  danger  of  the  defendant's 
being  harassed  with  other  suits  about  the  same.^^  (7)  That 
there  is  a  want  of  proper  parties,  plaintiff  or  defendant.^^ 
(8)  That  there  is  a  misjoinder"  of  parties  plaintiff.  A  super- 
tluity  of  defendants,  not  accompanied  by  multifariousness,  is 
the  ^subject  of  objection  by  those  only  who  were  improperly 
joined.i*  (9)  That  the  plaintiff's  remedy  is  barred  by  length 
of  time  or  laches.^^  This  objection  can  be  raised  by  motion.^s 
When  a  bill  praying  an  injunction  to  restrain  the  infringement 
of  a  reissued  patent  sets  out  or  exhibits  both  the  original  and  the 
reissued  patent,  and  it  appears  from  inspection  that  the  sole 
object  of  the  reissue  was  to  enlarge  and  expand  the  claims  of 
the  original,  and  that  a  delay  of  two  or  three  years  has  taken 
place  in  applying  for  the  reissue,  not  explained  by  special  cir- 
cumstances giving  sufficient  ground  for  the  delay ;  the  question 
of  laches  is  a  question  of  law  arising  on  the  face  of  the  bill, 
which  avails  as  a  defense  upon  a  general  demurrer  for  want  of 


9U.  S.  T.  Pratt  C.  &  C.  Co.,  18 
Fed.  708;  24  St.  at  L.,  ch.  373.  But 
see  Sharon  v.  Terry,  36  Fed.  337. 
The  text  was  cited  with  approval  in 
Oleson  V.  No.  Pac.  E.  Co.,  44  Fed. 
12. 

10  See  §§4,  5,  supra. 

11  Anon.,  2  Ch.  Cas.  164;  Purefoy 
V.  Purefoy,  1  Vern.  29;  Shuttle- 
worth  V.  Layeock,  1  Vern.  245; 
Margrave  v.  Le  Hooke,  2  Vern.  207. 

12Dwight  V.  Central  Vt.  R.  Co., 
9  Fed.  785. 

13  Walker  v.  Powers,  104  TJ.  S. 
245,  26  L.  ed.  729;  Lansdale  v. 
Smith,  106  U.  S.  391,  27  L.  ed.  219; 
Taylor  v.  Holmes,  14  Fed.  498; 
Markley  v.  Mutual  Ben.  L.  I.  Co.,  6 
Ins.  L.  J.  537;  Wollensak  v.  Reiher, 
115  U.  S.  96,  29  L.  ed.  350. 
14Cherrey  v.  Monro,   2  Barb.   Ch. 


(N.  Y.)  618;  Toulmin  v.  Hamilton, 
7  Ala.  362.  But  see  Bank  v.  Car- 
rollton  R.  Co.,  11  Wall.  624,  20  L. 
ed.  82. 

15  Maxwell  v.  Kennedy,  8  How. 
210,  12  L.  ed.  1051;  Badger  v. 
Badger  2  Wall,  87,  94,  17  L.  ed. 
836,  838;  Marsh  v.  Whitmore,  21 
Wall.  185,  22  L.  ed.  485;  SuUivan 
V.  P.  &  K.  R.  Co.,  94  U.  S.  806,  24 
L.  ed.  324;  Brown  v.  Buena  Vista, 
95  U.  S.  161,  24  L.  ed.  423 ;  Godden 
V.  Kimmel,  99  U.  S.  201,  25  L.  ed. 
431;  National  Bank  v.  Carpenter, 
101  U.  S.  567,  25  L.  ed.  815.  For  a 
definition  of  equitable  laches  see  De 
Gendre  Byrnes,  44  N.  J.  Eq.  372. 
But  see  Beekman  v.  Hudson  R.  W. 
S.  Ry.  Co.,  35  Fed.  3. 

16  Alexander  v.  Fidelity  Tr.  Co., 
215  Fed.  791.     Supra,  §  182. 


§  367]  CLASSIFICATION   OF   DEMURRERS  1835 

equity. ^'^     The  former  objection  that  tlie  plaintiff  has  an  ade- 
quate remedy  at   law  has  been  abrogated  by  statute.^^     if  i^ 
appeared  by  the  face  of  the  bill  that  the  ease  of  the  complainant 
was  barred  by  the  statute  of  limitations,  it  was  domurrable.^® 
The  facts  whieli  show  that  the  delay  is  excusable  must  ue  set  up 
in  the  bill.^"    Where  the  suit  was  brougiit  within  the  time  fixed 
by  the  statute  of  limitations,  and  no  special  circumstances  tend- 
ing to  create  an  equitable  estoppel  appeared  in  the  bill;  it  was 
held:  that  the  bill  was  not  demurrable  for  laches  because  of  the 
delay  alone.^i    '-This  period  is  within  \\\v  statute  of  limitations; 
and,  when  this  is  the  fact,  it  is  held  by  good  authority  that  the 
bill  is  not  demurrable  in  the  absence  of  other  circumstances  than 
mere  delay,  but  the  defense  of  laches  must  be  set  up  in  the 
answer.  "22    A  demurrer  would  also  be  sustained  where  the  bill 
showed  that  the  plaintiff's  case  w^as  repugnant  to  the  statute  of 
frauds;  23  but  when  the  face  of  the  bill  does  not  show  that  a 
contract,  conveyance,  or  agreement  was  not  in  writing,  there 
seems  to  be  no  presumption  that  it  was  invalid.^*     (10)  That  the 
bill  is  multifarious.25    It  lias  been  held  that  only  such  defendants 
as  would  suffer  by  the  multifariousness  can  raise  this  objec- 
tion.26     (11)    That  there  is  another  suit  pending  between  the 
parties  for  the  same  cause  of  action.    Demurrers  for  insufficiency 
as  to  form  were  either:  (1)  That  the  plaintiff' 's  place  of  abode 

ITWollensak  v.  Reiher,  llo  U.   S.  20  Edison  El.  L.  Co.  v.   Equitable 

96,   101,  29   L.  ed.   350,   351;    Lock-  Life   Assiir.   Soc.   of  U.   S.,   55  Fed. 

hart  V.  Leeds,  195  U.  S.  427;  Thur-  478;    supra,    §137.      But   see   Brush 

inond  V.  Ches.  &  O.  Ry.   Co.,  C.  C.  El.  Co.  v.  Ball  El.  L.  Co.,  43  Fed. 

A.,  140  Fed.  697.  899. 

18  38   St.   at   L.   §  951.     See  also  21  Sabre     v.     United     Traction     & 
Equity  Rule   22.     Supra,   §364;    in-  Electric  Co.,  156  Fed.  79. 

fra,  §  368.  22  Sabre  v.  United  Tr.  &  El.  Co., 

19  U.   S.   V.   Utah   Power   &   Light       156  Fed.  79,  82. 

Co.,     208     Fed.     821;     Goldschmidt  23  Randall    v.    Howard,    2    Black, 

Thcrmitt  Co.   v.   Primes   Chem.   Co.,  585,     5S9.       But     see     Chapman     v. 

216  Fed.  382;   Corsicana  Nat.  Bank  School  Dist.,  1  Deady  108.     Supra, 

V.  Johnson,  C.  C.  A.,  218  Fed.  822;  §124. 

Goldschmidt    Thermitt    Co.    v.    Pri-  24  Sage  Land  &  Improvement  Co. 

mos  Chem.  Co.,  225  Fed.  769;   John  v.   Ripley,  C.  C.   A.,   191   Fed.  785. 

A.  Roebling's  Sons  Co.  v.  Kinnieutt,  25  See  §§  139-143,  s^tpra. 

248    Fed.    596;     Brown    v.    Kosson,  26  Atwill  v.  Ferrett,  2  Blatchf.  39. 

C.    C.    A.,    255    Fed.    806.      But    see  44;     Buerk    v.    Imhaueser,    3    Fed. 

Clinton    Mining    &    Mineral    Co.    v.  457;    Hill   v.  Bonaflfon,  2   W.  N.   C. 

Cochran,  C.  C.  A.,  247  Fed.  449.  (Pa.)    356;   mpra,   §§  139-143. 


1836 


DISMISSAL   OF    BILLS 


[§368 


is  not  stated;  or  that  a  compliance  has  not  been  made  with  any 
of  the  other  requirements  of  Rule  20.^'''  (2)  That  the  facts 
essential  to  the  plaintiff's  right  and  within  his  own  knowledge 
are  not  alleged  positively.^^  (3)  That  the  bill  is  deficient  in 
certainty.''^  (4)  That  the  plaintiff  does  not  in  his  bill  offer 
to  do  equity,  when  it  is  the  custom  of  the  court  to  require  him 
to  do  so.^®  (5)  That  the  bill  is  not  signed  by  counsel.^^  (6) 
That  the  bill  is  not  supported  by  an  affidavit  when  one  is  neces- 
sary.32  A  demurrer  to  the  relief  would  not  lie  upon  the  ground 
that  the  bill  contained  irrelevant  matter.  The  proper  remedy 
for  this  was  an  exception  for  impertinence.^^  Neither  was  a  bill 
demurrable  because  indispensable  parties,  whom  it  named  and 
against  whom  it  prayed  process,  had  not  been  served  with  sub- 
poenas to  appear  and  answer.^*  If  any  part  of  the  relief  prayed 
was  proper  the  demurrer  was  overruled. ^^ 

§  368.  Election  and  transfer  to  the  law  side  of  the  court. 
The  Equity  Rules  now  provide :  "  If  at  any  time  it  appear  that 
a  suit  commenced  in  equity  should  have  been  brought  as  an 
action  on  the  law  side  of  the  court,  it  shall  be  forthwith  trans- 
ferred to  the  law  side  and  be  there  proceeded  wuth,  with  only 
such  alteration  in  the  pleadings  as  shall  be  essential."  ^  "If  in 
a  suit  in  equity  a  matter  ordinarily  determinable  at  law  arises, 


27  Mitf ord  's  PL,  eh.  2,  §  2 ;  Eow- 
ley  V.  Eccles,  1  Sim.  &  S.  511. 

28  Mitf  ord 's  PI.,  ch.  2,  §  2 ;  Dan- 
iell's  Ch.  Pr,  412,  625. 

29  Taylor  v.  Hohiies,  14  Fed.  498 ; 
Goldsmith  v.  Gilliland,  22  Fed.  865. 

30  U.  S.  V.  Pratt  C.  &  C.  Co.,  18 
Fed.  708.     See  §  153. 

3iEule  24;  Dwight  v.  Humph- 
reys, 3  M'Lean  104. 

32Findlay  v.  Hinde,  1  Pet.  241, 
244,  7  L.  ed.  128,  130. 

33  Pac.  E.  Co.  of  Mo.  v.  Mo.  Pas. 
Ey.  Co.,  Ill  U.  S.  505,  522,  28  L. 
ed.  498,  504;  Howe  &  Davidson  Co. 
V.  Haugan,  140  Fed.  182;  Eole  26; 
supra,   §§  237,  238. 

34Kilgour  V.  N.  0.  G.  Light  Co., 
2  Woods  145. 

35  Chicago,  M.   &   St.   P.   Ey.   Co. 


V.  Hartshorn,  30  Fed.  541;  Straw- 
berry Hill  V.  Chicago,  M.  &  St.  P. 
Ey.  Co.,  41  Fed.  568.  ' 

§  368.  1  Eq.  Eule  22.  Eastman 
Kodak  Co.  v.  Nat.  Park  Branch, 
231  Fed.  321-322.  It  had  been 
previously  said :  "In  the  Federal 
courts  it  is  well  settled  that  the 
court  will  not  turn  a  suitor  in  equity 
over  to  a  remedy  at  law  in  a  State 
court,  but  only  to  the  law  side  of 
the  Federal  court."  U.  S.  Life 
Ins.  Co.  V.  Cable,  C.  C.  A.,  98  Fed. 
761,  39  C.  C.  A.  264;  North  Caro- 
lina Min.  Co.  V.  Westfeldt,  151  Fed. 
290.  Where  there  was  no  cause  of 
action  at  common  law,  the  bill  was 
dismissed.  Wingert  v.  First  Nat. 
Bank,  223  U.  S.  670. 


§368] 


ELECTION  AND  TRANSFER  TO  LAW  SIDE 


1837 


such  matter  shall  be  determined  in  that  suit  according  to  the 
principles  applicable,  without  sending  the  case  or  question  to 
the  law  side  of  the  court."  ^  When  the  equitable  relief  is  denied, 
the  court  of  equity  cannot  against  the  objection  of  either  party 
to  the  suit  assess  the  complainant's  damages  if  the  pleadings 
show  a  cause  of  action  at  common  law  and  no  facts  which 
establish  equitable  jurisdiction  have  been  proved;  because  this 
would  take  away  the  constitutional  right  of  trial  by  jury.^  But 
if  the  bill  otherwise  shows  equitable  jurisdiction,  a  prayer  for 
damages  incidental  thereto  will  be  considered  in  equity.* 

Where  a  jury  is  waived  and  the  action  tried  by  the  court,  it  is 
immaterial  that  it  is  tried  on  the  law  instead  of  the  equity 
calendar.^  The  objection  must  be  raised  by  the  defendant  at  his 
first  opportunity;  or  otherwise  it  will  be  waived.^  It  has  been 
held  that  it  may  be  made  at  any  time  before  proofs  are  taken.''^ 
An  improper  transfer  from  law  to  equity  is  a  reversible  error.' 

By  the  previous  practice,  when  the  plaintiff  sued  both  at 
law  and  in  equity,  at  the  same  time,  for  the  same  matter,  the 
defendant  was  entitled  to  an  order  that  the  plaintiff  elect 
whether  he  will  proceed  in  equity  or  at  law.'*  The  rules  do  not 
abrogate  the  former  doctrine  as  to  the  effect  of  an  election  be- 


2Eq.  Rule  23. 

3  Linden  Inv.  Co.  v.  Houston 
Bros.  Co.,  221  Fed.  178;  Am.  Falls 
Milling  Co.  v.  Standard  B.  &  D. 
Co.,  C.  C.  A.,  248  Fed.  487.  See 
Goldschmidt  Thermitt  Co.  v.  Primos 
Chem.  Co.,  225  Fed.  769. 

4  Wright  V.  Barnard,  233  Fed. 
329. 

5  Illinois  Surety  Co.  v.  United 
States,  C.  C.  A.,  215  Fed.  334. 

6  Kelly  v.  Illinois  State  Trust 
Co.,  215  Fed.  567;  National  Leather 
Co.  V.  Roberts,  C.  C.  A.,  221  Fed. 
922;  Palmer  v.  Doull  Miller  Co., 
Inc.,  233  Fed.  309;  Fay  v.  Hill, 
C.  C.  A.,  249  Fed.  415.  But  see 
Goldschmidt  Thermit  Co.  v.  Primos 
Chemical  Co.,  225  Fed.  769. 

7  Leo  Feist,  Inc.,  v.  American 
Music  Roll  Co.,  C.  C.  A.,  251  Fed. 
242. 


8  Issenhuth  v.  Kirkpatriek,  C.  C. 
A.,  258  Fed.  293. 

SaMitford'sPL  (Tyler's  ed.)  340; 
Carlisle  v.  Cooper,  3  C.  E.  Green 
(N.  J.)  241;  Livingston  v.  Kane, 
3  J.  Ch.  (N.  Y.)  224.  It  was  said 
in  a  recent  case:  "Where  a  wrong 
has  been  perpetrated  and  the  vic- 
tim is  doubtful  which  of  two  incon- 
sistent remedies  is  the  right  one,  he 
may  pursue  both  until  he  recovers 
through  one,  and,  in  the  absence  of 
facts  creating  an  equitable  estoppel, 
his  prosecution  of  the  wrong  rem- 
edy to  a  judgment  of  defeat  will  not 
estop  him  from  subsequently  pursu- 
ing the  right  one  to  victory."  Bierce 
V.  Hutchins,  205  U.  S.  340,  347,  27 
Sup.  Ct.  524,  51  L.  ed.  828;  Thomas 
V.  Sugarman,  218  U.  S.  129,  133, 
30  Sup.  Ct.  650,  54  L.  ed.  967,  29 
L.R.A.  (N.S.)  250;  Standard  Oil  Co. 


1838  DISMISSAL  OP   BILLS  [§  368 

tween  inconsistent  claims  of  riglit.^  In  a  case  since  the  new 
equity  rules  the  plaintift"  was  required  to  elect  whether  he  sued 
at  law  to  recover  damages  for  deceit  or  in  equity  to  establish 
a  trust  upon  a  fund.^® 

Under  the  former  practice,  the  case  of  a  mortgagee  was  an 
exception  to  this  doctrine;  for  in  the  absence  of  any  statutory 
restriction,  he  can  proceed  at  the  same  time  to  foreclose  his 
mortgage  in  equity  and  sue  on  the  bond  at  law."  This  excep- 
tion, however,  did  not  extend  to  the  case  of  a  vendor  seeking  to 
enforce  his  lien  and  sue  at  law  for  his  debt.^^  j^^  ^  special 
case,  the  plaintiif  might  be  allowed  to  proceed  partly  at  equity 
and  partly  at  law,  and  compelled  to  make  a  special  election. ^^ 

The  principle  of  election  was  extended  to  a  case  where  the 
plaintiff  sued  at  once  in  both  a  foreign  and  a  domestic  court.^* 

A  plaintiff,  who  had  sued  at  law  and  recovered  nominal  dam- 
ages for  a  breach  of  a  contract,  can  not  thereafter  sue  in  equity 
for  the  specific  performance  thereof."  If,  as  the  trial  of  the 
action  at  law  progressed,  he  discovers  that  he  is  not  likely  to 
secure  sufficient  damages,  he  should  ask  leave  to  withdraw  a 
juror,  in  order  that  he  may  thereafter  apply  for  equitable 
relief.^^ 

The  defendant  could  not  move  for  the  order,  that  plaintiff 
elect  until  after  he  had.  answered,  and  the  time  for  exceptions 
had  expired  without  one  being  taken,  or  the  answer  had  been 
adjudged  sufficient.^''     The  order  should  allow  the  plaintiff  a 

V.   Hawkins,  74  Fed.   395,  398,   399,  Dimkley  v.  Van  Buren,  3  J.  Ch,  (N. 

20  C.  C.  A.  468,  472,  473,  33  L.R.A.  Y.)    330. 

739;    Barnsdall   v.  Waltemeyer,   142  12  Barker  v.  Smark,  3  Beav.  64. 

Fed.  415,  420,  73  C.  C.  A.  515,  520;  13  Barker   v.   Dumaresque,   2   Atk. 

Harrill  v.  Davis,  168  Fed.  187,  195,  119;    Anon.,   1   Vern.  104;   Franklin 

94  C.  C.  A.  47,  55,  22  L.R.A.  (N.S.)  v.  Hersch,  3  Tenn.  Ch.  467. 

1153;    In    re    Stewart    (D.    C.)    178  14  Pieters  v.  Thompson,  G.  Cooper, 

Fed.  463,  468;  Nauman  Co.  v.  Brad-  294. 

Shaw,  193  Fed.  350,  354,  113   C.  C.  15  Slaughter     v.     La     Compagnie 

A.  274."     Rankin  v.  Tygard,  C.   C.  Francaises    Des    Cables    Telegraph- 

A.  198  Fed.  795,  806.  iqiies,  C.  C.  A.,  119  Fed.  588. 

9Issenhuth   v.   Kirkpatrick,   C.   G.  16  Ibid. 

A.,     258     Fed.     293.       See     supra,  I'Mitford's     PI.      (Tyler's     ed.) 

§  185a.  340 ;      Leicester     v.      Leicester,     10 

10  Murphy   v.    Mitchell,    245    Fed.  Siml.    87.      See    Fisher    v.    Mee,    3 

«219.  Meriv.    45;     Soule    v.    Corning,    11 

llBootli    V.    Booth,    2    Atk.    343:  Paige   (N.  T.)   412. 


368] 


ELECTION  AND  TRANSFER  TO  LAW  SIDE 


1839 


reasonable  time  within  which  to  make  his  election."    The  plain- 
tiff may  remove  to  discharge  the  order  for  irregularity  in  obtain- 
ing it,  or  upon  the  merits  confessed  in  the  answer  or  proved  in 
an  atKdavit.18     ]f^  upon  such  a  motion,  any  doubt  arose  as  to 
whether  the  suit  in  equity  and  the  action  at  law  were  for  the 
same  matter,  it  was  customary  to  direct  an  inquiry  into  that 
fact;  20  during  the  progress  of  which  all  proceedings  in  both 
courts  were  usually  stayed,2i  unless  the  plaintiff  could  show 
that  justice  would  be  better  done  by  permitting  proceedings  to 
some  extent,  when  he  may  by  special  leave  continue  in  one  or 
both,  at  the  court's  discretion.22    If  the  plaintiff  required  fur- 
ther time  wdthin  which  to  make  his  election,  he  applied  for  it 
to  the  court  by  motion  upon  notice.^^    At  the  expiration  of  the 
time  allowed  him  lie  made  his  election,  which  was  usually  done 
by  filing  a  written  statement  of  it  signed  by  him  or  his  solicitor 
in  the  clerk's  office;'^*  or  else  his  bill  was  dismissed.^s     If  he 
elected  to  proceed  in  equity,  his  proceedings  at  law  were  stayed 
by  the  order,^^  and  either  the  defendant  was  allowed  to  recover 
the  costs  of  the  action,  or  the  plaintiff'  was  directed  by  the  court 
of  equity  to  pay  them.^"^    If  the  plaintiff  elected  to  proceed  at 
law,  his  bill  in  equity  was  dismissed  with  costs.^*     Sucli  a  dis'- 
missal  was,  however,  no  bar  to  a  subsequent  suit.^^     ^Yhere, 
upon  a  bill  for  partition,  a  defendant  claimed  a  paramount  title 
and  possession  upon  colorable  grounds,  against  which  the  plain- 
tiff's were  not  entitled  to  equitable  relief ;  the  proper  course  was 
to  suspend  the  bill  until  the  plaintiffs  had  an  opportunity  to  sue 
at  law,^'*  although,  in  a  similar  case,  the  court  has  dismissed  the 


18  Bracken  v.  Martin,  .3  Yerg. 
(Tenn.)  55;  Eogers  v.  Vosburgh,  4 
J.  Ch.   (N.  Y.)   84. 

WDaniell's  Ch.  Pr.  (2a  Am.  ed.) 
817. 

20  Mouseley  v.  Basnett,  1  Ves.  & 
B.  382,  n. 

.  21  Mills  V.  Fry,  3  Ves.  &  B.  9; 
Anon.,  2  Madd.  395;  Daniell's  Ch. 
Pr.  817. 

22  Amory  v.  Brodiiek,  Jacob,  530 ; 
Carwick  v.  Young,  2  Swanst.  239. 

23  Daniell's  Ch.  Pr.  (5th  Am.  ed.) 
817. 

24  Ibid. 


25  Daniell's  Ch.  Pr.  (5th  Am.  ed.) 
81 G;  Boyd  v.  Ileinzelman,  1  Ves.  & 
B.   381. 

26  Daniell  's  Ch.  Pr.  (5th  Am.  ed.) 
816. 

27  Simpson  v.  Sadd,  16  C.  B.  26; 
Cnrwick  v.   Young,   2   Swanst.   239. 

28  Jones  v.  Earl  of  Strafford,  3  P. 
Wms.  79,  90,  n.  B. 

29  Countess  of  Plymouth  v.  Bla- 
don,  2  Vern.  32;  Livingston  v. 
Kane,  3  J.  Ch.  (N.  Y.)  224;  Rogers 
V.  Vosburgh,  4  J.  Ch.  (N.  Y.)  84. 

.      30  Clark  V.  Roller,  199  U.  S.  541. 


1840  DISMISSAL   OF    BILLS  [§  368 

bill  without  prejudice.^^  By  the  former  practice  in  a  proper 
case,  the  court  might  require  the  complainant  to  separate  the 
same  by  filing  a  declaration  at  law  for  the  recovery  of  damages, 
and  retaining  the  bill  so  far  as  the  same  sought  equitable  re- 
lief.32 

31  Carlson   v.    Sullivan,    C.    C.    A.,  32  Chapman     v.     Yellow     Poplar 

46  Fed.  476.  Lumber  Co.,  C.  C.  A.,  143  Fed.  201. 


CHAPTER  XXIII. 

THE   HEARING. 

§369.  Bringing  a  suit  to  a  hearing.  The  old  practice  in 
bringing  a  suit  to  a  hearing  ^vas  the  procurement  of  an  order 
by  the  plaintiff  setting  it  down  for  hearing  within  four  weeks 
after  the  closing  of  the  evidence.  Upon  his  failure  to  do  this 
defendant  might  either  set  it  down  himself,  or  move  to  dismiss 
the  bill  for  want  of  prosecution.  The  party  setting  down  was 
obliged  to  sue  out  a  subpoena  to  hear  judgment,  and  to  have 
the  same  served  upon  the  solicitors  of  the  other  parties.i  If  a 
plaintiff  wished  to  set  a  cause  down  for  a  hearing  upon  bill  and 
answer,  he  was  obliged  to  do  so  within  the  time  allowed  him 
for  filing  the  replication.^     The  Judicial  Code  provides: 

"Anv  civil  cause,  at  law  or  in  equity,  may,  on  written  stipu- 
lation of  the  parties  or  of  their  attorneys  of  record  signed  and 
filed  with  the  papers  in  the  case,  in  vacation  or  in  term,  and 
on  the  written  order  of  the  judge  signed  and  filed  in  the  case 
in  vacation  or  on  the  order  of  the  court  duly  entered  of  record 
in  term,  be  transferred  to  the  court  of  any  other  division  of 
the  same  district,  without  regard  to  the  residence  of  the  defend- 
ants, for  trial.     When  a  cause  shall  be  ordered  to  be  trans- 
ferred to  a  court  in  any  other  division,  it  shall  be  the  duty 
of  the  clerk  of  the  court  from  which  the  transfer  is  made  to 
carefully  transmit  to  the  clerk  of  the  court  to  which  the  transfer 
is  made  the  entire  file  of  papers  in  the  cause  and  all  documents 
and  deposits  in  his  court  pertaining  thereto,  together  with  a 
certified  transcript  of  the  records  of  all  orders,  interlocutory 
decrees    or  other  entries  in  the  cause;   and  he  shall  certify, 
under  the  seal  of  the  court,  that  the  papers  sent  are  all  which 
are  on  file  in  said  court  belonging  to  the  cause ;  for  the  per- 
formance of  which  duties  said  clerk  so  transmitting  and  certi- 
fying shall  receive  the  same  fees  as  are  now  allowed  by  law 

§.369.     1  Darnell's    Ch.    Pr.     (5th  2  Daniell's  Ch.  Pr.   (5th  Am.  ed.) 

Am.  ed.)    96.3-971;    3  Bl.  Com.   450.       964,  965. 

1841 


1842  THE    HEARING  [§  369 

for  similar  services,  to  be  taxed  in  the  bill  of  costs,  and  regu- 
larly collected  with  the  other  costs  in  the  cause;  and  such 
transcript,  when  so  certified  and  received,  shall  henceforth  con- 
stitute a  part  of  the  record  of  the  cause  in  the  court  to  which 
the  transfer  shall  be  made.  The  clerk  receiving  such  transcript 
and  original  papers  shall  tile  the  same  and  the  case  shall  then 
proceed  to  final  disposition  as  other  cases  of  a  like  nature."  ^ 

"Whenever  any  new  district  or  division  has  been  or  shall  be 
established,  or  any  count}'  or  territory  has  been  or  shall  be 
transferred  from  one  district  or  division  to  another  district  or 
division,  prosecutions  for  crimes  and  offenses  committed  within 
such  district,  division,  county,  or  territory  prior  to  such  transfer, 
sliall  be  commenced  and  proceeded  with  the  same  as  if  such  new 
district  or  division  had  not  been  created,  or  such  county  or  terri- 
tory had  not  been  transferred,  unless  the  court,  upon  the  appli- 
cation of  the  defendant,  shall  order  the  cause  to  be  removed  to 
the  new  district  or  division  for  trial.  Civil  actions  pending  at 
the  time  of  the  creation  of  any  such  district  or  division,  or  the 
transfer  of  any  such  county  or  territory,  and  arising  Avithin 
tlie  district  or  division  so  created  or  the  county  or  territory  so 
transferred,  shall  be  tried  in  the  district  or  division  as  it  existed 
at  the  time  of  the  institution  of  the  action,  or  in  the  district 
or  division  so  created,  or  to  which  the  count v  or  territory  is  or 
sliall  be  so  transferred,  as  may  be  agreed  upon  by  the  parties 
or  as  the  court  shall  direct.  The  transfer  of  such  prosecutions 
and  actions  shall  be  made  in  the  manner  provided  in  the  section 
last  preceding.* 

"After  a  cause  shall  be  placed  on  tlie  trial  calendar  it  may  be 
passed  over  to  auotlier  day  of  tlie  same  term,  by  consent  of 
counsel  or  order  of  the  court,  l)ut  sliall  not  be  continued  beyond 
the  term  save  in  exceptional  cases  by  order  of  tlie  court  upon 
good  cause  shown  by  alti davit  and  upon  such  terms  as  the 
court  shall  in  its  discretion  impose.  Continuances  beyond  the 
term  by  consent  of  the  parties  shall  be  allowed  on  condition 
only  that  a  stipulation  be  signed  by  counsel  for  all  the  parties 
and  that  all  costs  incurred  theretofore  be  paid.  Thereupon  an 
order  shall  be  entered  dropping  the  case  from  the  trial  calendar, 

S  §  58,   36   St.   at    L.   110.3,   Comp.  4  §  59,   36   St.   at   L.   1103,   Comp. 

St.  §  1040.  St.  §  1041. 


§  370J  BRINGING  SUIT  TO  HEARING  184^3 

.subject  to  reinstatement  within  one  year  upon  application  to 
the  court  by  either  party,  in  wiiicli  event  it  shall  be  heard  at  the 
earliest  convenient  day.  If  not  so  reinstated  within  the  year, 
the  suit  shall  be  dismissed  without  prejudice  to  a  new  one."^ 

Under  the  former  practice,  when  the  bill  had  been  dismissed 
for  failure  of  the  comi)lainant  to  apj)ear  at  the  tinal  hearin«r 
his  default  mi<;ht  be  opened  and  a  new  hearing  allowed  upon 
terms,  such  as  a  bond  for  secui-ity  for  costs.^ 

§  370.  Judges  who  try  cases  at  law  and  in  equity,  'i'he  .Judi- 
cial Code  provides:  "When  any  district  judge  is  prevented,  by 
any  disability  from  holding  any  stated  or  appointed  term  of 
his  district  court,  and  that  fact  is  made  to  appear  by  the  cer- 
tificate of  the  clerk,  under  the  seal  of  the  court,  to  any  circuit 
judge  of  the  circuit,  in  which  the  district  lies,  or,  in  the  absence 
of  all  the  circuit  judges,  to  the  circuit  justice  of  the  circuit,  in 
which  the  district  lies,  any  such  circuit  judge  or  justice  may,  if 
in  his  judgment,  the  public  interests  so  require,  designate  and 
appoint  the  judge  of  any  other  district  in  the  same  circuit,  to 
hold  said  court  and  to  discharge  aU  the  judicial  duties  of  the 
judge  so  disabled,  during  such  disability.  Whenever  it  shall 
be  certified  by  any  such  circuit  judge  or,  in  his  absence,  by  the 
circuit  justice  of  the  circuit  in  which  the  district  lies,  that  for 
any  sufficient  reason  it  is  impracticable  to  designate  and  appoint 
a  judge  of  another  district  within  this  circuit  to  perform  the 
duties  of  such  disabled  judge,  the  Chief  Justice  may  if  in  his 
judgment  the  public  interests  so  require,  designate,  and  appoint 
the  judge  of  any  district  in  another  circuit  to  hold  said  court 
and  to  discharge  all  the  judicial  duties  of  the  judge  so  disabled, 
during  such  inability.  Such  appointment  sli;il!  be  tiled  in  the 
clerk's  office  and  entered  on  the  minhtes  of  the  said  district 
court,  and  a  certified  copy  thereof,  under  the  seal  of  the  court, 

5  Eq.   Rule  57.     See  supra,   §  362.  delay  was  held  excusable,  see  Beirnc 

Reynolds   v.    First   Nat.    Bank,    112  v.    Wadsworth,    36    Fed.    614.      See 

U.    S.    40.5,   28   L.   ed.    733;    Adams  rx    parte    Poultney    v.    City    of    La- 

V.      Howard,     21      Off.     Gaz.     264;  Fayette,    12    Peters    472,    9    L.    ed. 

Mackaye   v.   Mallory,   80   Fed.    256;  1161. 

Walsbach     L.     Co.     v.     Mahler,     88  6Karns   v.   W.  Tnilay   Rapid  Cya- 

Fed.    427.      For    a    ease    where    tiic  nide  Process  Co.,  184  Fed.  479. 


1^'^J^  THE    HEARING  [§  370 

shall  be  transmitted  to  the  clerk  to  the  judge  so  designated  and 
appointed. "  ^ 

''When,  from  the  accumulation  or  urgency  of  business  in  any 
district  court,  the  public  interests  re(iuire  the  designation  and 
appointment  hereinafter  provided,  and  the  fact  is  made  to 
appear,  by  the  certificate  of  the  clerk,  under  the  seal  of  the 
court,  to  any  circuit  judge  of  the  circuit,  in  which  the  district 
lies  or  in  the  absence  of  all  the  circuit  judges  to  the  circuit 
justice  of  the  circuit  in  which  the  district  lies,  such  circuit  judge 
or  justice  may  designate  and  appoint  the  judge  of  any  other 
district  in  the  same  circuit,  to  have  and  exercise  within  the  dis- 
trict first  named  the  same  powers  that  vested  in  the  judge 
thereof.  Each  of  the  said  district  judges  may,  in  case  of  such 
appointment,  hold  separately  at  the  same  time,  a  district  court 
in  such  district,  and  discharge  all  the  judicial  duties  of  the 
district  judge  therein."  ^ 

"If  all  the  circuit  judges  and  the  circuit  justices  are  absent 
from  the  circuit,  or  are  unable  to  execute  the  provisions  of 
either  of  the  two  preceding  sections,  or  if  the  district  judge  so 
designated  is  disabled  or  neglects  to  hold  the  court  and  transact 
the  business  for  which  he  is  designated,  the  clerk  of  the  district 
court  shall  certify  the  fact  to  the  Chief  Justice  of  the  United 
States,  who  may  thereupon  designate  and  appoint  in  the  manner 
aforesaid  the  judge  of  any  district  within  such  circuit  or  within 
any  other  circuit;  and  said  appointment  shall  be  transmitted 
to  the  clerk  and  be  acted  upon  by  him,  as  directed  in  the  pre- 
ceding section."  ^ 

"Any  such  circuit  judge  or  circuit  justice  or  the  Chief 
Justice,  as  the  case  may  be,  may,  from  time  to  time,  if  in  his 
judgment,  the  public  interests  so  require,  make  a  new  designa- 
tion and  appointment  of  any  other  district  judge,  in  the  manner 
for  the  duties,  and  with  the  powers  mentioned  in  the  three  pre- 
ceding sections,  and  revoke  any  previous  designation  and  ap- 
pointment. ' '  * 

"It  shall  be  the  duty  of  the  senior  circuit  judge  then  present 
in  the  circuit,  whenever  in  his  judgment  the  public  interest  so 

§  370.     1  Jiul.  Code  §  13,  36  St.  at  3  ,Tiul.    Code    §  15,    36    St.    at    L. 

L.    1087,    re-enacting    U.    S.    E.    S.  1087,  re-enacting  U.  S.  R.  S.  §  593, 

§591.  4Jud.    Code    §16/36    St.    at    L. 

2  Jud.  Code  §  14,  36  St.  at  L.  1087,  re-enacting  U.  S.  R.  S.  §  594. 
1087,  re-enacting  U.  S.  R.  S.  §  592. 


§  370]  TRIAL   JUDGES  1845 

requires,  to  designate  and  a])j)()iiit,  in  liie  manner  and  witli  the 
powers  provided  in  section  fourteen,"  the  preceding  section, 
"the  district  judge  or  any  judicial  judge  within  its  circuit  to 
hold  a  district  court  in  the  place  or  in  aid  of  any  other  district 
judge  within  the  same  circuit."^  In  sudi  cases  the  certificate 
of  a  clerk  is  not  required.^ 

"Whenever,  in  the  judgment  of  the  senior  circuit  judge  of 
the  circuit  in  which  the  district  lies,  or  of  the  circuit  justice 
assigned  to  such  circuit,  or  of  the  Chief  Justice,  the  pidDlie 
interest  shall  require  the  said  judge,  or  associate  justice,  or 
Chief  Justice,  shall  designate  and  appoint  any  circuit  judge  of 
the  circuit  to  hold  said  district  court."  '  It  has  been  held,  that 
the  senior  circuit  judge  may  thus  designate  and  appoint  him- 
self in  a  proper  case.* 

"It  shall  be  the  duty  of  the  district  or  circuit  judge  who  is 
designated  and  appointed  uiuler  eitlier  of  tlie  six  preceding 
sections  to  discharge  all  the  judicial  duties,  for  which  he  is  so 
appointed,  during  the  time  for  Avhicli  he  is  so  appointed,  and 
all  the  acts  and  proceedings  in  the  courts  held  by  him,  or  by  or 
before  him,  in  pursuance  of  said  provisions,  shall  have  the  same 
effect  and  validity  as  if  done  by  or  before  the  district  judge 
of  the  said  district. ' '  ^ 

"When  the  office  of  judge  of  any  district  court  becomes 
vacant,  or  process,  pleadings,  and  proceedings  pending  before 
such  court  shall,  if  necessary,  be  continued  by  the  clerk  thereof, 
until  such  times,  as  a  judge  shall  be  appointed,  or  designated  to 
hold  such  court ;  and  the  judge  so  desigiuited,  while  holding 
such  court,  shall  possess  the  powers  conferred  by,  aiul  be  sub- 
ject to  the  provisions  contained  in  section  nineteen ;"  ^°  the 
section  immediately  preceding. 

"In  districts  having  more  than  one  district  judge  the  judges 
may  agree  upon  the  division  of  business,  and  assignment  of 
cases,  for  trial  in  said  district ;  but  in  case  they  do  not  so  agree, 
the  senior  circuit  judge  of  the  circuit  in  which  tlie  district  lies 
shall  make  all  necessary  orders,  for  tlic  division  of  business  and 

6  Jutl.  Code  S  17,  36  St.  at  L.  8  Ponn.  Steel  Co.  v.  N.  Y.  City 
1087,  ve-cnaeting  U.   S.  "R.  S.   §  596.       Ry.  Co.,  221  Fe.l.  440. 

GEc   National    Telephone    Co.,  C.  9  ,Uul.  Code  19,  36  St.  at  L.  1087. 

C.  A.,  230  Fed.  785.  ro-onacting  V.  S.  R.  S.  §  595. 

7  .Tud.  Code  §  18,  36  St.  at  L.  10  Jnd.  Code  §  22,  36  St.  at  L. 
1087.                                                                 1087. 

Fed.  Prac-.  Vol.  II— 46 


1846 


THE   HEARING 


[§371 


the  assignment  of  cases  for '  trial  in  said  district. "  ^^  In  the 
Southern  District  of  New  York,  it  is  customary  for  the  senior 
district  judge  to  make  the  division  of  business. 

§  371.  Challenge  of  a  judge  for  interest.  The  Judicial  Code 
now  provides:  "Whenever  it  appears  that  the  judge  of  any 
district  court  is  in  any  way  concerned  in  interest  in  any  suit 
pending  therein,  or  has  been  of  counsel  or  is  a  material  witness 
for  either  party,  or-  is  so  related  to  or  connected  witli  either 
party  as  to  render  it  improper,  in  his  opinion,  for  him  to  sit 
on  the  trial,  it  shall  be  his  duty,  on  application  by  either  party, 
to  cause  the  fact  to  be  entered  on  the  records  of  the  court ;  and 
also  an  order  that  an  authenticated  copy  thereof  shall  be  forth- 
with certified  to  the  senior  circuit  judge  for  said  circuit  then 
present  in  the  circuit;  and  thereupon  such  proceedings  shall 
be  had  as  are  provided  in  section  fourteen. "  ^  It  has  been  said : 
that  the  judge  has  no  option  but  to  retire  in  any  case  except 
that  last  mentioned  in  the  statute ;  but  that  the  question  whether 
he  is  so  related  to  or  connected  with  either  party  as  to  render 
him  improper  to  sit  upon  the  trial,  is  one  for  his  discretionary 
decision.2  Before  the  statute  was  passed,  it  was  held  that  a 
judge  might  hear  a  cause  in  Mhich  he  was  retained  before  he 
received  his  judicial  appointment.^  A  judge  is  not  disqualified 
because  he  has  been  attorney  for  one  of  the  parties  in  matters 
not  connected  with  the  litigation.'*  A  judge  is  disqualified  if  he 
owns  stock  in  another  corporation  which  is  interested  in  a  ques- 
tion of  law  involved  in  the  case  before  hira.^  A  judge  is 
not  disqualified  from  trying  the  validity  of  bonds  issued  by  a 
county,  in  which  he  is  a  resident  and  taxpayer ; «  nor,  it  has  been 
held,  from  passing  upon  the  validity  of  his  action  as  a  trustee 
when  he  had  no  personal  interest  therein.''  The  objection 
may  be  waived,  at  least  if  the  interest  of  the  judge  is  slight.^    It 


11  Ibid.,  §  23. 

§371.  IJud.  Code,  §20,  36  St. 
at  L.  1087,  re-enacting  U.  S.  R.  S., 
§  601 ;    §  14  is   quoted  supra,    §  370. 

2  Ex  parte  N.  K.  Fairbank  Co., 
194  Fed.  978. 

3  Thelusson  v.  Eendlesham,  7  H. 
L.  C.  429;  The  Richmond,  9  Fed. 
863,  and  citations. 

4  Duncan  v.  Atlantic  Coast  Line 
E.  Co.,  223  Fed.  446. 


BMe  Honohilu  Consol.  Oil  Co.,  C. 
C.  A.,  243  Fed.  348. 

6  Wade  V.  Travis  County,  72  Fed. 
98.5. 

7  Be  Bishop 's  Estate,  C.  C.  A.,  250 
Fed.  145. 

8Utz  &  Dunn  Co.  v.  Regulator 
Co.,  C.  C.  A.,  213  Fed.  315  (where 
the  judge  was  a  stockholder  in  the 
assignor  or  a  claim  which  was 
proved  before  him). 


§372]  CHALLENGE  OF    JfDGE   FOR   PREJUDICE  1847 

has  been  held :  tluit,  even  with  the  consent  of  the  parties,  a  Fed- 
eral judge  should  not  sit  in  a  case  in  wliich  he  is  related  to  one 
of  the  parties  within  the  foui-lli  degree  of  consanguinity.* 

§372.  Challenge  of  judge  for  prejudice.  -Whenever  a 
party  to  any  action  or  proceeding,  civil  or  criminal,  shall  make 
and  file  an  affidavit  that  the  judge  before  wlumi  the  action  or 
proceeding  is  to  be  tried  or  heai'd  has  a  personal  bias  or  preju- 
dice either  against  him  or  in  favor  of  any  opjwsite  party  to  the 

"suit,  such  judge  shall  ])rocecd  no  fiii-tiicr  therein,  but  another 
judge  shall  be  designated  in  the  manner  prescribed  in  th«  sec- 
tion last  preceding,  or  chosen  in  the  manner  prescribed  in  section 
twenty-three,  to  hear  sucli  matter.  Every  sudi  affidavit  shall 
state  the  facts  and  the  reasons  for  the  belief  that  such  bias  or 
prejudice  exists,  and  shall  be  filed  not  less  than  ten  days  before 
the  ])eginning  of  the  term  of  the  court,  or  good  cause  shall  be 
shown  for  the  failure  to  file  it  wilhin  such  time.  No  party 
shall  be  entitled  in  any  case  to  file  more  than  one  such  affidavit ; 
and  no  such  affidavit  shall  be  filed  unless  accompanied  by  a  cer- 
tificate of  counsel  of  record  that  such  affidavit  and  application 
are  made  in  good  faith.  The  same  in-oceedings  shall  be  had 
when  the  presiding  judge  shall  file  wilU  the  clerk  of  the  court 
a  certificate  that  he  deems  himself  unable  for  any  reason  to 
preside  with  absolute  impartiality  in  the  pending  suit  oi-  ac- 
tion." ^ 

,  It  has  been  held  that  the  statute  does  not  apply  to  the  District 
of  Alaska.2    It  does  not  apply  to  the  Circuit  Courts  of  Appeals  ^ 

.  although  when  one  of  their  judges  is  dis(iualified  by  statute 
because  he  has  passed  upon  one  of  the  questions  brought  up  for 
review,  such  objection  can  be  duly  raised.*  It  applies  to  a  ease 
pending  on  January  1,  1912,  when  the  .Tudieial  Code  took  effect.^ 

9  Br  Eatoiitoii    El.   Co.,    120    Fed.  5  7;j-  parte  Am.   Steel  Barrel  Co., 

1,)1Q  2:!tt    V.    S.    3o;     Henry    v.    Speer, 

S.-JtG.     l.Tud.    Code,    §21,    HC    St.  C.   C.    A.,   201    Fed.   869,   overrulinij 

at  L.  1087.  1li''"T  v.  Harris  (S.  D.  Ga.,  W.  D.), 

2Tiosevig  V.  U.  S.,  C.  C.  A.,  2.35  191   Fed.  868;  Fs  parte  N.  K.  Fair- 

ppf].   5.  bank  Co.   (M.   D.   Ala.,   N.   D.V-   '^^■^ 

3  Kinney  V.  Plymouth  Eoek  Squab  Fed.    978,   985;    Et    parte    Glasgow 
Co.,  C.  C.  A.,  213  Fed.  449.  (N.  D.  Ga.),  19.1  Fed.  780. 

4  Rexf  ord  v.  Brunswick  Balke- 
Collender  Co.,  228  U.  S.  339,  57  L, 
ed.  — ;   see  infra,  §693. 


1848 


THE   HEARING 


[§372 


The  application  may  be  denied  for  laches.^  It  is  a  sufficient 
excuse  for  filing  the  affidavit  during  the  trial  term  that  the  man- 
date of  the  court  of  review  was  not  filed  below  until  after  the 
term  began ;  but  a  delay  of  six  weeks  after  the  mandate  had  been 
filed  was  held  to  bar  the  application.'  So  was  an  application 
'made  in  a  disbarment  proceeding  four  weeks  subsequent  to  the 
return  day  after  the  case  had  been  twice  adjourned  when  the 
answer  raised  no  issue  of  fact.*  It  was  held  to  be  too  late  when 
made  on  behalf  of  the  complainant  in  a  foreclosure  suit  pend=- 
ing  its  motion  for  a  decree,  the  affidavit  having  been  prepared 
during  the  time  that  it  was  pressing  the  motion  in  the  District 
Court  and  asking  the  Circuit  Court  of  Appeals  for  a  writ  of 
mandamus  to  compel  the  entry  of  the  decree.^  The  judge  chal- 
lenged has  the  right,  subject  to  review  by  the  appellate  court, 
to  determine  whether  the  facts  alleged  are  sufficient  to  show  per- 
sonal bias  or  prejudice,^®  but  not  to  pass  upon  the  truth  of  the 
facts.ii     If  he  disregards  an  affidavit  which  makes  a  sufficient 


6  Shea  V.  U.  S.,  C.  C.  A.,  251  Fed. 
433. 

7  Shea  V.  U.  S.,  C.  C.  A.,  251  Fed. 
433.  See  ex  parte  Am.  Steel  Bar- 
rel Co.,  230  U.  S.  35,  45. 

8  Ee  Ulmer,  208  Fed.  461. 

9  Be  Equitable  Trust  Co.,  C.  C. 
A.,  232  Fed.  836. 

10  Ex  parte  N.  K.  Fairbaiik  Co., 
194  Fed.  978,  where  it  was  contend- 
ed by  counsel  that  the  prejudice  was 
shown  in  correspondence  resulting 
from  their  complaint  of  a  delay  in 
the  trial  of  the  case;  Henry  v.  Har- 
ris, 191  Fed.  868,  where  the  judge 
upon  an  ex  parte  petition  had  writ- 
ten an  opinion  concerning  the  law 
of  the  case  and  had  insisted  upon 
publishing  the  same  after  the  appli- 
cation had  been  withdrawn.  In 
both  these  cases  the  judges  disre- 
garded the  affidavit.  The  last  was 
affirmed  as  Henry  v.  Speer,  C.  C. 
A.,  201  Fed.  869,  because  the  affi- 
davit had  not  charged  "personal 
and    bias    prejudice."      In    Epstein 


V.  U.  S.,  C.  C.  A.,  196  Fed.  354,  the 
judge  had  said  at  a  hearing  in 
bankruptcy.  ' '  This  is  a  nasty  piece 
of  business.  This  estate  has  been 
looted  by  someone, ' '  and  accom- 
panied this  by  a  direction  to  an  offi- 
cer of  the  court  that  he  use  what 
was  left  in  the  estate,  even  to  the 
last  penny,  to  investigate  the  mat- 
ter and  to  institute  proceedings 
against  anyone  who  had  committed 
any  act  that  could  be  reached  and 
punished  under  the  law.  It  was  held 
that  this  did  not  disqualify  him 
from  trying  an  indictment  against  a 
person  present  at  the  hearing  in 
bankruptcy  for  suborning  a  witness 
to  commit  perjury  there. 

In  U.  S.  v.  Frickie,  261  Fed.  543, 
545,  .ludge  Mayer  held  to  be  insuffi- 
cient an  affidavit  charging  him  with 
personal  prejudice  because  of  his 
refusal  to  grant  an  application  for 
an  adjournment  to  a  time  requested 
by  counsel. 

11  Henry   v.   Speer,   C.   C.   A.,  201 


372] 


CHALLENGE  OF   JUDGE   FOR   PREJUDICE 


1849 


showing  of  personal  prejudice,  his  decision  ma\-  be  excepted  to 
and  assigned  as  error  in  the  court  of  review.^^  The  refusal  of 
the  judge  to  give  effect  to  the  affidavit  of  prejudice  in  a  crim- 
inal case  cannot  be  reviewed  upon  habeas  corpus}^  Wlien  the 
affidavit  is  insufficient,  it  is  the  better  practice  to  permit  it  to  be 
filed  and  then  to  strike  it  from  the  record ;  but  it  was  held  that 
a  refusal  to  permit  such  an  affidavit  to  be  filed  was  not  prejudi- 
cial error.i*  A  certificate  of  good  faith  is  insufficient  when  made 
by  nonresident  counsel  who  have  not  been  admitted  to  the  bar  of 
the  court  where  the  affidavit  is  filed. ^^  jf  ^j^g  affidavit  is  pre- 
pared in  good  faith  and  in  proper  language  it  is  not  a  contempt 
of  court,  although  it  is  held  to  be  insufficient. ^^  It  has  been  said : 
"The  basis  of  the  disqualification  is  that  'personal  bias  or  preju- 
dice' exists,  by  reason  of  which  the  judge  is  unable  to  impartially 
exercise  his  functions  in  the  particular  case.  It  is  a  provision 
obviously  not  applicable  save  in  those  rare  instances  in  which  the 
affiant  is  able  to  state  facts  which  tend  to  show  not  merely  ad- 
verse rulings  already  made,  which  may  be  right  or  wrong,  but 
facts  and  reasons  which  tend  to  show  personal  bias  or  prejudice. 
It  was  never  intended  to  enable  a  discontented  litigant  to  oust  a 
judge  because  of  adverse  rulings  made,  for  such  rulings  are  re- 
viewable otherwise,  but  to  prevent  his  future  action  in  the  ending 
cause.  Neither  was  it  intended  to  paralyze  the  action  of  a  judge 
who  has  heard  the  case,  or  a  question  in  it,  by  the  interposition  of 
a  motion  to  disqualify  him  between  a  hearing  and  a  determina- 
tion of  the  matter  heard.  This  is  the  plain  meaning  of  the 
requirement'  that  the  affidavit  shall  be  filed  not  less  than  ten 


Fed.  869.  In  U.  S.  v.  CottreU  & 
Leonard,  U.  S.  v.  Paris  Suit  &  Cloak 
Co.,  U.  S.  V.  Myers,  U.  S.  v. 
Schenectady  Clothing  Co.,  N.  D.  N. 
Y.,  April  8,  1820,  Howe,  J.,  denied 
application  to  remove  the  case  from 
him  for  prejudice  based  upon  state- 
ments which  the  defendants  alleged 
that  he  had  made  in  court  upon 
the  arguments-  of  demurrers  of  the 
indictment  stating  as  one  of  the 
grounds  for  his  denials  that  the 
allegations  were  false. 

l2A'j-  parte  Am.  Steel  Barrel  Co., 
230  U.  S.  35,  45. 


13  Ex    parte    Glasgow,    195    Fed. 
780. 


14  Shea    V.    U.   S.,   C.   C. 


A.,    257 


Fed.  433. 

15  Ex  parte  N.  K.  Fairbank  Co., 
194  Fed.  978. 

16Tjosevig  V.  U.  S.,  255  Fed.  5, 
* '  That  affiant  is  informed  and  verily 
believes  that  the  plaintiff,  T.  J. 
Donohoe,  is  the  national  committee- 
man for  the  Democratic  party  for 
the  territory  of  Alaska ;  that  as 
such  he  controls  the  appointment  of 
judges,  or  to  a  great  extent  in- 
fluence.'»    all    appointment    and    con- 


1850 


THE   HEARING 


[§372 


days  before  the  beginning  of  the  term.''^'  The  affidavit  must 
charge  personal  bias  or  prejudice.^^  The  omission  of  the  word 
personal  was  held  to  vitiate  an  affidavit  in  what  was  otherwise 
a  strong  case.^^  The  decisions  by  the  State  courts  under  anal- 
ogous statutes  may  be  useful  to  the  practitioner.20 


firmation   of    judges;    that   he    is   a 
personal    friend    of    the    honorable 
judge    of    this    court    before    whom 
this    cause    is    pending;     that    such 
friendship   is  very   intimate   and   of 
long  standing,  and  that  affiant  is  in- 
formed    and     verily     believes     that, 
piior  to  the  appointment  of  the  hon- 
orable judge  of  this  district  to  the 
judgeship,    said    plaintiff    spent    his 
time   in   Washington   City,   at  great 
personal  expense  and  loss  of  time  to 
himself,  urging  upon   the  President 
and    Senate    the    appointment    and 
confirmation  of  the  honorable  judge 
of   this   district;    that   affiant   is  in- 
formed  and  verily  believes  that  the 
said    plaintiff,    l)y    reason    of    such 
friendship    and    such   political    serv- 
ices  rendered  by   the  said  plaintiff, 
Donohoe,  for  and  on  behalf  of  this 
honorable  judge,  claims  and  intends 
to  thereby  influence  the  decision  of 
the  court  in  this  case  in  his  favor; 
that  affiant  in  no  way  intends  to  re- 
flect upon  the  honor  or  integrity  of 
the  honorable  judge  of  this  district, 
but     owing     to     the     circumstances 
above  set  forth  he  feels  that  he   is 
at  a  disadvantage  in  submitting  the 
issues   of   facts  in   this  case   to  the 
decision  of  said  honorable  judge,  and 
therefore    asks    that    the    issues    of 
facts  be  submitted  to  the  determina- 
tion of  the  jury,  and  in  event  that 
that  is  denied   affiant   asks   and   de- 
mands   that    some    other    judge    be 
called  in  to  hear  and  determine  said 
costs. ' ' 

Be    Cottingham,    Colorado,    Aug. 
18,   1919,   182  Pac.   2.     But   see   re 


Eeed  D.  C,  Court  of  Appeals,  May, 
1916,  44  Wash.  Law  Rep.  354. 

17  Ex  parte  Am.  Steel  Barrel  Co., 
230  U.  S.  35,  43,  44,  per  Lurton,  J. 

18  Henry   v.    Speer,   C.    C.   A.,    201 
Fed.  869. 

19  Ibid. 

20  It   was  held   too   late   to  make 
the    motion:    upon    appeal,    De    La 
Eama  v.   De   La  Rama,   241   U.   S. 
154;     when     the    action    had    been 
pending  more  than  one  year,  a  de- 
murrer    and     several     motions     had 
been  passed  upon  by  the  judge,  the 
issues  had  been  jsined  and  the  case 
by    agreement    set    down    for    trial, 
Eberville  v.  Leadville  Coloring,  Tun- 
neling &  Drainage  Co.,  28  Colorado 
241,  64  Pac.  200;   but  see  ex  parte 
Am.    Steel    Barrel    Co.,    230    U.    S. 
35;     after     an     appearance    to    the 
merits  or  the  submission  of  prelimi- 
nary   motions,    German   Ins.    Co.    v. 
Landram,  88  Ky.-433,  11  S.  W.  367, 
592,   10   Ky.   Law   Rep.   1039;   after 
the  judge  had  filed  several  orders  in 
the  cause,  Dupoyster  v.  Ft.  Jefferson 
Imp.   Co.'s  Receivers,   121  Ky.   518, 
28  Ky.  Law  Rep.  504,  89  S.  W.  509; 
and,    when    the    affidavit    was    filed, 
after   the    arrival   of   the   day   fixed 
for  the  trial  or  final  hearing  of  any 
motion   upon   which    the    judge    was 
called  upon  to  pass.  State  v.  Donlan, 
32   Montana   256,   88   Pac.   244.     It 
was  held  not  too  late  when  the  ap- 
plication was  made  before  any  other 
motion  was  disposed  of.  Gibbons  v. 
Lord   Crawshaw,   21   Ky.   Law  Rep. 
1618,  55  S.  W.  905;  and  even  after 
the  issues  were  framed  when  it  was 


§373] 


ARRAiVGEMEXT  OF  CALENDAR 


1851 


§373.  Arrangement  of  calendar.  Wy  statute,  a  !•  reference 
is  given  in  all  district  courts  and  in  tlie  Supreme  Court  to 
actions  in  which  a  State  is  a  party  or  in  which  the  execution  of 
the  revenue  laws  of  a  State  is  enjoined. ^  A  suit  in  equity  under 
"the  act  to  protect  trade  and  commerce  against  unlawful  re- 
straints and  monopolies,"  or  under  the  Inter.state  Commerce 
law  whenever  the  Attorney  General  filed  with  the  clerk  of  the 
court  a  certificate  that,  in  his  opinion,  the  case  is  of  general 
public  importance,  is  given  precedence  and  assigned  for  hearing 
at  the  earliest  practicable  day,  before  not  less  than  three  Circuit 
Judges  of  the  Circuit,  if  there  be  three  or  more.  If  not,  then 
before  two   Circuit  Judges  and  a  District  Judge  selected  bv 


based  upon  facts  since  discovered, 
Vance  v.  Field,  89  Ky.  178,  11  Ky. 
Law  Eep.  .388,  12  S.  W.  190.  It  has 
been  held  that  the  affidavits  must 
«tate  the  charges  against  the  judge, 
in  such  a  way  that  they  will  subject 
the  parties  making  them  to  criminal 
punishment  if  they  are  false,  and 
that  an  affidavit  based  entirely  on 
hearsay  is  insufficient,  Schmidt  v. 
Mitchell,  101  Ky.  570,  19  Ky.  Law 
Rep.  76.S,  41  S.  W.  929,  72  Am.  St. 
Rep.  427.  Upon  an  indietment 
charging  the  defendant  as  an  ac- 
cessory in  a  murder  alleged  to  have 
been  committed  as  part  of  a  politi- 
cal conspiracy,  an  affidavit  was  held 
to  be  sufficient  when  it  set  forth : 
that  the  judge  was  a  member  of  the 
same  political  party  as  the  deceased, 
his  intimate  personal  friend,  in 
close  sympathj'  with  him  in  the  po- 
litical imbroglio  resulting  in  the  as- 
sassination, and  that  by  reason 
thereof  and  of  the  great  excitement 
at  the  time,  the  judge  had  conceived 
a  feeling  of  hostility  against  the 
defendant,  which  would  prevent  him 
from  affording  a  fair  and  impar- 
tial trial,  and  which  ho  had  shown 
upon  a  former  trial  by  vicious  acts 
established  by  the  selection  of  an 
unfair  and  prejudiced  jury,  Powers 


V.  Commonwealth,  114  Fed.  237,  24 
Ky.  Law  Rep.  1007,  1186,  70  S.  W. 
644,  1059.  It  was  held  to  be  insuf- 
ficient to  state  nothing  more  than 
that  the  trial  judge  did  not  do  jus- 
tice to  the  parties,  Dupoysten  v.  Ft. 
.Jefferson  Imp.  Go's.  Receivers,  121 
Ky.  518,  28  Ky.  Law  Rep.  .504,  89 
S.  W.  509;  and  that  he  was  a  party 
to  the  suit  and  interested  therein, 
and  that  he  was  personally  hostile 
to  the  party  objecting,  Sparks  v. 
Colson,  109  Ky.  711,  22  Ky.  Law 
Rep.  1369,  60  S.  W.  540,  where  the 
pleadings  did  not  show  that  the 
judge  had  such  an  interest,  Metcalfe 
V.  Merchants'  &  Planters'  Bank,  89 
Miss.  649,  41  So.  Rep.  377;  and  in 
a  contested  election  as  to  local  op- 
tion, statements  in  an  affidavit  that 
the  judge  "is  opposed  to  the  sale 
and  traffic  in  such  liquors  to  the 
extent  that  he  has  a  pronounced 
bias  against  it,"  Erwin  v.  Benton, 
120  Ky.  536,  27  Ky.  Law  Rep.  909, 
87  S.  W.  291,  9  Ann.  Gas.  264. 

S373.  lU.  S.  R.  S.,  §949;  Ward 
V.  State,  12  Wall.  163,  20  L.  ed. 
260;  Hoge  v.  R.  &  D.  R.  Co.,  93 
U.  S.  1,  23  L.  ed.  781;  Davenport 
V.  Dows,  15  Wall.  390;  Miller  v. 
State,  12  Wall.  159,  20  L.  ed.  259. 


1852  THE   HEARING  [§374 

them.2  This  law  is  still  in  force,  notwithstanding  the  enact- 
ment of  the  Judicial  Code,^  and  it  applies  to  the  settlement  of  a 
decree  upon  the  mandate  of  the  Supreme  Court.*  It  has  been 
said  that  it  does  not  require  three  judges  to  hear  a  motion  for  a 
preliminary  injunction  or  for  any  relief  sought  before  a  formal 
hearing.^  There  is  no  rule  that  civil  suits  brought  under  the 
Sherman  Act  to  dissolve  the  combination  must  await  the  trial  of 
criminal  actions  against  the  same  defendants.®  If  an  original 
and  a  cross  cause  have  been  set  down  for  hearing  at  different 
times,  and  other  causes  intervene,  the  plaintiff  in  whichever 
of  them  is  below  the  other  will  usually  upon  motion  obtain  leave 
to  bring  it  forward,  so  that  both  causes  may  be  heard  together.''' 
§374.  Maimer  of  hearing  a  cause.  The  English  practice 
upon  the  hearing  of  a  cause  where  all  parties  appear  upon  its 
being  called,  has  been  thus  described:  "The  leading  counsel 
for  the  plaintiff  opens  the  plaintiff's  case  and  in  so  doing  states, 
first  the  bill,  and  then  the  answers,  if  any:  pointing  out  the 
matters  in  issue,  and  questions  in  equity  arising  therefrom; 
after  which  the  plaintiff's  evidence  is  read,  either  by  his  lead- 
ing or  his  junior  counsel,  and  their  arguments  in  support  of  the 
case  are  adduced.  The  counsel  for  the  defendant  are  then  heard, 
in  support  of  the  defendant's  case,  and  his  evidence  is  read  by 
them;  and  the  plaintiff's  senior  counsel  is  then  heard  in  reply. 
When  all  are  heard,  the  court  pronounces  the  decree,  either 
immediately   or   at   a   subsequent   day.''^     It   is  usual  in  the 

2  Act  of  February  11,  1903,  32  the  Court  the  cause  involves  intri- 
St.  at  L.  823.  cate  technical  or  scientific  questions 

3  Ex  parte  U.  S.,  226  U.  S.  420,  of  fact  the  Court  will  upon  consent 
57  L.  ed.  — ,  setting  aside  United  of  all  parties  appoint  some  disin- 
States  V.  Terminal  Ass'n  of  St.  terested  person  skilled  in  the  art  to 
Louis,   197   Fed.  446.  act    as    an    assessor,    the    reasonable 

4  Ibid.  fee  for  whose  services  when  fixed  by 

5  Southern  Pae.  Terminal  Co.  v.  the  Court  shall  be  a  part  of  the  tax- 
Interstate  Commerce  Commission,  able  disbursements  and  enforceable 
166  Fed.  134    136.  as  is  a  Master's  fee.     Such  assessor 

6  Standard  Sanitary  Mfg.  Co.  v.  shall  sit  with  the  Judge  at  the  hear- 
U.  S.    226  U.  S.  20.  ing  of  the  evidence  and  shall  assist 

7Hinde's  Pr.  415;  3  Bl.  Com.  451.  the   Court  in  its  deliberations  upon 

§374.     IDaniell's    Ch.    Pr.     (5th  the    cause    in    such    manner    as    the 

Am.  ed.)   3988.    By  Eq.  Bules  S.  D.  trial   Judge   may    request,    and   any 

N.  Y.  "6.  In  the  trial  of  a  Patent  written  opinion  rendered  by  the  as- 

eause,   whenever    in    the    opinion    of  sessor   at  the  request   of   the   Judge 


§375J 


RULES  OP  DECISION 


1853 


United  States,  to  waive  the  reading,  and  for  counsel  to  state 
the  substance  of  the  pleadings  and  testimony,  which  are  sub- 
mitted to  the  judge  at,  or  shortly  after,  the  conclusion  of  the 
oral  arguments,  with  written  arguments  upon  the  law  and  the 
facts,  called  briefs  or  points.  The  course  is  much  the  same  where 
the  cause  is  set  down  for  a  hearing  upon  bill  and  answer.  The 
pleadings  only  are  then  read,  and  the  answer  is  admitted  to  be 
true  in  all  its  material  allegations  of  fact,^  although  not  re- 
sponsive to  the  bill,3  even  Avhen  not  stated  positively,  and  the 
defendant  only  avers  that  he  believes  and  hopes  to  be  able  to 
prove  such  facts.*  But  the  plaintiff  does  not  thereby  admit 
conclusions  of  law,  nor  allegations  as  to  matters  concerning 
which  the  court  takes  judicial  notice.^  No  other  evidence  is 
then  permitted  except  matters  of  record  to  which  the  answer 
refers.^  Unless  relevant  to  some  issue,  it  is  not  necessary  to  pro- 
duce the  mortgage  bonds  upon  the  hearing  of  a  foreclosure  suit.'' 
A  hearing  will  not  be  given  upon  an  agreed  statement  of  facts 
without  pleadings,*  even  if  a  State  statute  authorizes  such  a 
practice.^ 

§  375.  Rules  of  decision  upon  a  hearing.  All  decisions  made 
in  a  former  stage  of  the  cause  are  open  for  review  upon  the 
final  hearing.!  But  if  the  evidence  is  unchanged,  a  judge  will 
rarely  refuse  to  follow  a  ruling  made  by  one  of  his  colleagues 
in  the  same  2  or  a  similar  ^  case.    The  District  Courts  are  bound 


shall  be  a  portion  of  the  record 
on  appeal. ' '  See  also  Ferguson  v. 
Babeock  Lumber  &  Land  Co.,  C. 
C.  A.,  252  Fed.  705. 

2  Lake  E.  &  W.  R.  Co.  v.  Indian- 
apolis Nat.  Bank,  65  Fed.  690; 
Parker  v.   Concord,  39  Fed.  718. 

8  Lake  E.  &  W.  R.  Co.  v.  Indian- 
apolis  Nat.   Bank,   65   Fed.   690. 

4  Brinckerhoff  v.  Brown,  7  J.  Ch. 
(N.  Y.)  217;  Dale  v.  McEvers,  2 
Cow.   (N.  Y.)   118. 

6  Taylor  v.  Barclay,  2  Sim.  213. 
See  supra,  §§  329a,  366. 

6  Anon.,   1   Barb.   Ch.    (N.   Y.)    3. 

7  Dickerman  v.  Northern  Tr.  Co., 
176  U.  S.  181,  44  L.  ed.  423;  North- 
ern  Tr.   Co.   V.   Columbia   S.   V.  Co., 


75   Fed.   936;    Toler   v.    East   Tenn., 
y.  &  G.  Ry.   Co.,  67  Fed.   168,   181. 

8  Nickerson  v.  A.,  T.  &  S.  P.  R. 
Co.,  30  Fed.  85;  s.  c.  1  MeCrary, 
383. 

9  Nickerson  v.  A.  T.  &  S.  F.  R. 
Co.,  30  Fed.  85;  s.  c.  1  McCrary, 
383.  But  see  supra,  §  83,  iyifra, 
§  476. 

§  375.  1  Fourniquet  v.  Perkins, 
10  How.  82;  Pulliam  v.  Pulliam,  10 
Fed.  53;  Sperry  &  Hutchinson  Co. 
V.  City  of  Tacoma,  199  Fed.  853. 
But  see  Coupe  v.  Weatherhead,  37 
Fed.  16. 

2  Cole  S.  M.  Co.  V.  Va.  &  G.  H.  W. 
Co.,  1  Saw.  685;   Wakelee  v.  Davis, 


1854 


THE   HEARING 


[§875 


to  follow  the  decisions  of  the  Supreme  Court  of  the  United 
States  *  and  those  of  the  Circuit  Court  of  Appeals  in  their  own 
circuit ;  ^  but  they  are  not  bound  by  the  decisions  of  a  District 
Court  ^  or  of  a  Circuit  Court  of  Appeals ''  of  the  United  States 
in  another  circuit.  The  decisions  of  a  Circuit  Court  of  Appeals 
unless  reversed  or  overruled  by  the  Supreme  Court  will  ordi- 
narily be  followed  in  another  circuit.*  Great  respect  will  always 
be  paid  to  the  decisions  of  a  District  Court  in  other  circuits.® 
Obiter  dicta  in  the  opinions  of  the  Supreme  Court  need  not,^** 
but  when  a  decision  is  based  upon  two  distinct  grounds,  the 
ruling-  in  each  should  be,ii  followed.  Tlie  issue  of  a  writ  of 
certiorari  by  the  Supreme  Court  does  not  impair  the  effect  of 
a  decision  of  the  Circuit  Court  of  Appeals  as  an  authority.^^ 


44  Fed.   532;   Taylor  v.  Decatur  M. 
&  Ld.  Co.,  112  Fed.  449. 

SWorswick  Mfg.  Co.  v.  Philadel- 
phia, 30  Fed.  625;  In  re  Marko- 
witz,  233  Fed.  715;  infra,  §518; 
but  see  N.  P.  E.  Co.  v.  Sanders, 
47  Fed.  504. 

4  Am.  Bell  Tel.  Co.  v.  McKeesport 
Tel.  Co.,  57  Fed.  661;  Westinghouse 
Air  Brake  Co.  v.  Christensen  Eng. 
Co.,  113  Fed.  594;  Cutler-Hammer 
Mfg.  Co.  V.  Hammer,  124  Fed.  222; 
Continental  Securities  Co.  v.  Inter- 
borough  Eapid  Transit  Co.,  165  Fed. 
945;  Walker  v.  Iowa  Cent.  Ey.  Co., 
241  Fed.  395. 

5  Armat  Moving  Picture  Co.  v. 
Edison  Mfg.  Co.,  121  Fed.  559 ;  Con- 
tinental Securities  Co.  v.  Interbor- 
ough  Eapid  Transit  Co.,  165  Fed. 
945;  Stockbridge  v.  Phceinx  Mut. 
Life  Ins.  Co.,  193  Fed.  558;  Seong 
V.  U.  S.,  C.  C.  A.,  242  Fed.  496; 
Kentucky  Coal  Lands  Co.  v.  Min- 
eral Development  Co.,  219  Fed.  45; 
Minerals  Separation  v.  Butte  &  Su- 
perior Copper  Co.,  237  Fed.  401; 
see  infra,  §  277. 

6  Mast,  Foos  &  Co.  v.  Stover  Mfg. 
Co.,  177  U.  S.  485,  488,  489,  44  L. 
ed.  856,  858 ;  Welsbach  Light  Co.  v. 
Cosmopolitan       Incandescent       Gas- 


light Co.,  100  Fed.  648;  Continental 
Securities  Co.  v.  Interborough  Eapid 
Transit  Co.,  165  Fed.  945;  Lawson 
v.  Barber  &  Co.,  189  Fed.  165; 
M'llhenny  Co.  v.  Gaidry,  C.  C.  A., 
253  Fed.  613 ;   see   §  277,  s^ipra. 

7  Ibid.;  South  Penn  Oil  Co.  v. 
Miller,  C.  C.  A.,  175  Fed.  729. 

8i?e  Baird,  154  Fed.  215;  Imbro- 
vek  v.  Hamburg-American  Steam 
Packet  Co.,  190  Fed.  229;  infra, 
§479;  Harmon  v.  U.  S.,  C.  C.  A., 
223  Fed.  425;  Warren  Bros.  Co. 
V.  Evans,  234  Fed.   657. 

9  Granite  Brick  Co.  v.  Titus,  C. 
C.  A.,  226  Fed.  557;  Courtney  v. 
Croxton,  C.  C.  A.,  239  Fed.  247; 
Ee  Gebney  Tire  &  Eubber  Co.,  241 
Fed.  879. 

10,  Amer.  Surety  Co.  v.  United 
States,  C.  C.  A.,  239  Fed.  681; 
Bright  V.  Arkansas,  C.  C.  A.,  249 
Fed.  950. 

11  Florida  E.  E.  Co.  v.  Schutte, 
103  U.  S.  118,  26  L.  ed.  327,  but 
see  Gleason  v.  Thaw,  C.  C.  A.,  234 
Fed.  570,  574  over  Cameron  v. 
United  States,  C.  C.  A.,  250  Fed. 
943. 

12  Dernberger  v.  Balitmore  &  O. 
E.  Co.,  234  Fed.  405. 


§375] 


RULES  OF   DKOISTOX 


1855 


When  the  decisions  of  the  Circuit  Court  of  Appeals  are  con- 
flicting, the  refusal  of  the  Supreme  Coiirt  to  issue  a  writ  of 
certiorari  to  review  one  of  them  was  held  to  indicate  its  approval 
thereof."     An  assumption  of  jurisdiction  without  any  discus- 
sion of  the  subject  is  not  equivalent  to  a  ruling  that  jurisdiction 
exists."     Greater  respect   is  paid  to  a  ruling  by  the  Circuit 
Justice  than  to  one  by  a  Circuit  Judge  ;16  aiid  a  ruling  by  a 
Circuit  Judge  has  more  weight  than  one  by  a  District  Judge. ^^ 
The  decisions  of  the  Court  of  Appeals  of  the  District  of  Columbia 
in  interference  proceedings  are  not  conclusive  on  the  courts  but 
they  are  presumptively  correct  upon  questions  of  fact.i'     In 
matters  of  substantive  as  distinguished  from  adjective  law,  that 
is,  of  the  law  creating  rights  but  not  of  that  merely  regulating 
practice,  the  Federal  courts  are— certainly  so  far  as  property  in 
land  is  affected  thereby,  and  probably  altogether— bound  by  and 
will  follow  the  statutes  of  the  State  within  whose  jurisdiction 
is  the  property  that  is  the  subject  of  the  suit."    A  State  statute, 
however,  Avhich  is  merely  declaratory  of  the  law  cannot  affect 
the  rules  applying  to   causes  of  action  that   arose  before   its 
enactment."    Whether  a  State  statute  has  been  properly  passed 
so  as  to  take  effect  is  a  question  of  law,  in  determining  which  the 
courts  of  the  United  States  will  follow  the  decisions  in  the  State 
wherein  it  is  claimed  to  be  in  force.^o    So,  too,  in  construing  a 
statute  or  the  Constitution  of  a  State,  the  Federal  courts  will  in 
general  follow  the  construction  put  upon  it  by  the  State  courts, 
"when  that  construction  has  been  settled  by  the  decisions  of  its 


13  AudifFren  Eefrigerating:  M.  Co. 
V.  General  Electric  Co.,  24o  Fed. 
783;  B.  F.  Goodrich  Co.  v.  Consoli- 
dated Rubber  Tire  Co.,  C.  C.  A.,  251 
Fed.  617. 

14  J.  Homer  Fritch  v.  United 
States,  248  U.  S.  458. 

15  Preston  v.  Walsh,  10  Fed.  315. 
But  see  U.  S.  v.  Huggell,  40  Fed. 
636,  644;  Wells  Fargo  &  Co.  v. 
Cuneo,  241  Fed.  727;  Vacuum 
Cleaner  Co.  v.  Thompson  Mfg.  Co., 
258  Fed.  239. 

16  Cf.  E.  Rogensberg  &  Sons  v. 
Am.  Exch.  Cigar  Co.,  130  Fed.  549. 


17  Webster  El.  Co.  v.  Podlesak. 
255  Fed.  907. 

18  Watts  V.  Waddle,  6  Pet.  389, 
8  L.  ed.  437;  McGoon  v.  Scales,  9 
Wall.  23,  19  L.  ed.  545;  Gaines  v. 
Fuentes,  92  U.  S.  10,  23  L.  ed.  524; 
Brine  v.  Insurance  Co.,  96  U.  S. 
627,  24  L.  ed.  858;  Pulliam  v.  Pul- 
liam,  10  Fed.  53,  77.  See  infra, 
§477. 

19  Koshkonong  v.  Burton,  104  U. 
S.  668,  26  L.  ed.  886. 

20  South  Ottawa  v.  Perkins.  94  U. 
S.  26<1,  24  L.  ed.  154;  Post  v.  Super- 
visors, 105  U.  S.  667,  26  L.  ed.  1204 ; 


1856 


THE   HEARING 


[§375 


highest  tribunal.  "21  Even  if,  before  the  State  courts  have  con- 
strued it,  a  State  statute  is  given  one  construction  by  a  Federal 
court,  and  subsequently  the  highest  court  of  the  State  construes 
it  differently ;  or  if  the  Federal  courts  have  first  construed  it  in 
ignorance  of  its  construction  hy  the  highest  tribunal  of  the  State, 
■ — the  Federal  courts  will,  in  subsequent  cases,  disregard  their 
former  ruling  and  follow  that  of  the  State  court.^^  It  has  even 
been  held  that  the  Federal  courts  will  not  investigate  the  claim 
that  the  decision  of  the  State  court  was  obtained  by  collusion 
between  the  parties  to  the  case  in  which  it  Avas  obtained.^' 
Where  a  question  is  pending  before  the  highest  court  of  a  State, 
it  is  the  duty  of  a  District  Court  of  the  United  States  to  post- 
pone its  decision  thereupon  until  after  that  of  the  State  tribunal, 
unless  irreparable  injury  would  otherwise  be  caused. ^^  The 
courts  of  the  United  States  are  not  bound  by  a  decision  of  a 
State  court  construing  a  statute  which  is  claimed  to  be  a  contract 
by  the  State;  since  otherwise  the  clause  in  the  national  Consti- 
tution forbidding  a  State  to  pass  a  law  impairing  the  obligations 
of  contracts  might  be  violated  with  impunity. ^^  For  a  similar 
reason,  if  different  constructions  have  been  given  to  the  same 
statute  or  constitutional  provision  by  the  courts  of  a  State  at 


Leeper  v.  Texas,  139  U.  S.  462,  35 
L.  ed.  225. 

21  Polk 's  Lessee  v.  Wendal,  9 
Craneh,  87,  3  L.  ed.  665;  Nesmith 
V.  Sheldon,  7  How.  812,  12  L.  ed. 
925;  Walker  v.  State  H.  Com'rs,  17 
Wall.  648,  21  L.  ed.  744;  Elmwood 
V.  Marey,  92  U.  S.  289,  23  L.  ed. 
710;  East  Oakland  v.  Skinner,  94 
U.  S.  255,  24  L.  ed.  125;  Louisville, 
N.  O.  &  T.  Ey.  Co.  v.  Mississippi, 
13S  U.  S.  587,  33  L.  ed.  784;  Peters 
V  Bain,  133  U.  S.  670,  33  L.  ed. 
696;  Case  v.  Kelly,  133  U.  S.  21,  33 
L.  ed.  513;  Memphis  Street  Eail- 
way  Company  v.  Moore,  Adminis- 
trator of  Douglas,  243  IT.  S.  299. 
Where  it  was  claimed  that  the  de- 
cision of  such  a  question  was  pend- 
ing before  the  State  Supreme  Court, 
a  motion  for  an  adjournment  until 
that  court  had  made  its  decision  was 


denied.     Detroit  v.  Detroit  City  Ey. 
Co.,  55  Fed.  569.     See  infra,  §477. 

22  Faireld  v.  County  of  Galla- 
tin, 100  U.  S.,  47,  25  L.  ed.  544.  A 
decree  will  be  reversed  on  this 
ground  when  the  decision  of  the 
State  court  was  rendered  pending 
the  appeal.  Stutsman  County  v. 
Wallace,  142  U.  S.  293,  35  L,  ed. 
1018.  But  see  Burgess  v.  Seligman, 
107  U.  S.  20,  27  L.  ed.  359;  and 
infra,    §  477. 

23  East  Oakland  v.  Skinner,  94 
U.  S.  255,  24  L.  ed.  125. 

24  F.  W.  Cook  Brewing  Co.  v. 
Garber,  168  Fed.  942.  See  Act  of 
March  3,  1913,  quoted  §  105d,  supra. 

25  Jefferson  Brank  Bank  v.  Skel- 
ly,  1  Black,  436,  17  L.  ed.  173.  See 
Eailroad  Co.  v.  Falconer,  103  U.  S. 
821,  822,  26  L.  ed.  471. 


§  375] 


RULES   OF    DECISION    II'O.N    A    ilKARIXG 


185  I 


different  times,  the  Federal  courts  are  not  "bound  to  follow  the 
latter  decisions,  if  thereby  contract  rigiits  which  have  accrued 
under  earlier  rulings  will  be  injuriously  affected. "^^  Other- 
wise, said  Chief  Justice  Taney,  "the  provision  of  the  Constitu- 
tion of  the  United  States,  which  secures  to  the  citizens  of  another 
State  the  right  to  sue  in  the  courts  of  the  United  States,  might 
become  utterlj^  useless  and  nugatory."  ^"^  It  seems  that  the 
Federal  courts  will  give  to  a  right  created  by  a  well-recognized 
local  cu.stom  established  and  acquiesced  in  within  a  State,  the 
same  force  as  if  it  had  been  created  by  a  State  statute.^s  In 
deciding  questions  of  general  commercial  law,  however,  upon 
which  the  statutes  of  a  State  are  silent,  the  Federal  courts  are 
not  bound  by  the  decisions  of  the  State  courts,  but  decide  accord- 
ing to  their  own  views  of  what  the  law  is  and  should  be.^'  In  a 
patent  suit  where  it  is  held  that  certain  claims  of  the  patent 
are  valid  and  have  been  infringed  by  the  defendant,  he  is  en- 
titled to  a  finding  as  to  the  other  claims  an  infringement  of 
which  is  charged  in  the  bill.^*    The  courts  will  never  pass  upon 


26  Waite,  C.  J.,  in  Douglass  v. 
County  of  Pike,  101  U.  S.  677,  686, 
25  L.  ed.  968,  971.  See  also  Eowan 
V.  Runnels,  5  How.  134,  12  L.  ed. 
85;  Ohio  L.  Ins.  &  Tr.  Co.  v.  Debolt, 
16  How.  416,  14  L.  ed.  997;  Gelpeke 
V.  Dubuque,  1  Wall.  175,  17  L.  cd. 
520;  Thompson  v.  Perrine,  103  U.  S. 
806,  26  L.  ed.  612;  Dernbcrger  v. 
Baltimore  &  O.  R.  Co.,  243  Fed.  21. 

87  Rowan  v.  Runnels,  5  How.  134, 
12  L.  ed.  85. 

28  Swift  V.  Tyson,  16  Pet.  1,  18, 
10  L.  ed.  865,  871 ;  Gaines  v.  Fuen- 
tes,  92  U.  S.  10,  23  L.  ed.  524; 
Railroad  Co.  v.  National  Bank,  102 
U.  S.  14,  29,  26  L.  ed.  61,  67;  Old 
Colony  Trust  Co.  v.  City  of  Tacoma, 
219  Fed.  775;   see  supra,  §§79,  82. 

29  Swift  V.  Tyson,  16  Pet.  1,  10 
L.  ed.  865;  Carpenter  v.  Providence- 
Washington  Ins.  Co.,  16  Pet.  495,  10 
L.  ed.  1044;  Oats  v.  National 
Bank,  100  U.  S.  239,  25  L.  cd.  580; 
Railroad  Co.  v.  National  Bank,  102 


IT.  S.  14,  26  L.  ed.  61;  Butler  v. 
Douglass,  3  Fed.  612.  See  Burgess 
V.  Seligman,  107  U.  S.  20,  27  L.  ed. 
359.  See  infra,  §  477.  A  plea  of 
res  adjudicata  by  a  decision  of  a 
State  court  between  the  same  par- 
ties or  their  privies  is  valid,  al- 
though tlie  question  there  decided 
arose  on  demurrer  and  was  a  ques- 
tion of  general  commercial  law 
and  equity  jurisprudence.  Fuller 
V.  Hamilton  County,  53  Fed.  411. 
See  §  186d,  supra.  In  one  case, 
where  the  rule  of  the  Federal  was 
different  from  that  of  the  State 
courts,  Judge  McCrary  followed  the 
latter,  since  otherwise  there  was  a 
probability  that  a  party  to  the  suit 
would  be  subjected  to  a  double  pay- 
ment. Sonstiby  v.  Keeley,  7  Fed. 
447. 

30  National  Malleable  Casting  Co. 
V.  T.  H.  Symington  Co.,  234  Fed. 
343. 


1858  THE   HEARING  [§  376 

the  constitutionality  of  a  statute,  unless  this  is  absolutely  neces- 


sary.^^ 


§376.  Objections   which   cannot   be   made   at  the   hearing. 
As  the  provisions  of  the  equity  rules  and  the  other  regulations 
of  practice  are   chiefly  designed  to  facilitate  the  speedy  and 
orderly  progress  of  a  cause  to  a  hearing,  after  a  cause  has  been 
brought  to  a  hearing  it  is  a  general  rule  that  no  objections  as 
to  form  or  the  delay  in  taking  a  previous  proceeding  will  be 
allowed  to  be  taken  then  for  the  first  time.^     Thus,  the  rules 
provide  that  "if  a  defendant  shall,  at  the  hearing  of  a  cause, 
object  that  a  suit  is  defective  for  want  of  parties,  not  having 
by  motion  or  answer  taken  the  objection,  and  therein  specified  by 
name  or  description  the  parties  to  whom  the  objection  applies, 
the  court  shall  be  at  liberty  to  make  a  decree  saving  the  rights 
of  the  absent  parties."  2     "Where  the  defendant  shall  by  his 
answer  suggest  that  the  bill  of  complaint  is  defective  for  want 
of  parties,  the  plaintiff  may,  within  fourteen  days  after  answer 
filed,  set  down  the  cause  for  argument  as  a  motion  upon  that 
objection  only;  and  where  the  plaintiff  shall  not  so  set  down 
his  cause,  but  shall  proceed  therewith  to  a  hearing,  notwith- 
standing an  objection  for  want  of  parties  taken  by  the  answer, 
he  shall  not  at  the  hearing  of  the  cause,  if  the  defendant's 
objection  shall  then  be  allowed,  be  entitled  as  of  course  to  an 
order  to  amend  his  bill  by  adding  parties ;  but  the  court  shall 
be  at  liberty  to  dismiss  the  bill,  or  to  allow  an  amendment  on 
such  terms  as  justice  may  require.  "^     An  amended  bill  filed 
without  leave  upon  the  day  of  the  hearing  may  be  disregarded 
by  the  court.*     The  objection  that  the  allegations  in  the  bill 
show  no  ground  for  the  interference  of  a  court  of  equity  may 
be  taken  by  motion.^     The  objection  that  the  plaintiff  has  an 
adequate  remedy   at  law   is   waived  by   the   defendant   unless 
raised  in  a  demurrer,  plea  or  answer,^  but  it  may  be  taken  by 

31  Weyman-Bruton    Co.    v.    Ladd,  3  Eq.  Rule  43. 

C.    C.    A.,    231    Fed.    898;    Supreme  4  Terry  v.  McLure,  103  U.  S.  442, 

Council   of   Eoyal   Arcanum    v.    Ho-  26  L.  ed.  403. 

bart,  C.  C.  A.,  244  Fed.  385;   Cam-  &  Baker    v.    Biddle,    Bald.     394; 

eron  v.  United  States,  C.  C.  A.,  250  Quirolo  v.  Ardito,  1  Fed.  610. 

Fed.  943.  ®  Eeynes    v.    Dumont,    130    U.    S. 

§  376.     1  Allen  v.   Mayor,   etc.,   of  354,  32  L.  ed.  934 ;  Kilburn  v.  Sun- 

N.  Y.  18  Blatchf.  239.  derland,    130   U.    S.    505,   32   L.   ed. 

2Eq.  Rule  44.  1005;    Brown   v.    Lake    Ssp.   I.   Co., 


§377] 


ACTION'    OF   THE    COURT    UPOX    HEARING 


1859 


the  court  at  any  time."^  In  a  .stockholders'  suit  the  objection 
that  the  complainant  has  failed  to  seek  relief  through  the  cor- 
poration should  be  raised  by  motion  before  the  hearing.' 

§  377.  Action  of  the  court  upon  a  hearing-.  The  court  may 
upon  the  hearing  of  a  cause  either  decide  all  the  questions  raised 
therein  and  make  a  final  decree,  or  merely  dispose  of  some  of 
them  and  give  directions  to  facilitate  the  decision  of  those 
which  remain.^  "If  upon  a  separate  lieai-ing  before  the  grant- 
ing of  an  interlocutory  decree  it  should  be  determined  that  a 
single  act  of  infringement  was  committed — whicli  so  far  as 
infringement  is  concerned  is  all  that  is  i'(M|uired  to  support  such 
a  decree — under  conspiracy  or  pursuant  to  control,  authorily  or 
direction,  manifestly  that  determination  should  not  control  the 
action  of  the  master  in  dealing  with  the  evidence  of  acts  of 
infringement  committed  under  circumstances  different  from 
those  found  to  exist  by  the  court  on  the  separate  and  prelimi- 
nary hearing  and  justifying  an  interlocutory  decree."^    Where 


134  U.  S.  530,  33  L.  ed.  1021.  See 
Lawson  v.  Barber  &  Co.,  189  Fed. 
165. 

7  Lewis  V.  Cocks,  23  Wall.  466, 
23  L.  ed  70;  Oelrielis  v.  Spain,  15 
Wall.  211,  21  L.  ed.  43;  Eeynes  v. 
Dumoiit,  130  U.  S.  354,  395,  32  L. 
ed.  934,  945 ;  Beyer  v.  Le  Fevre,  186 
U.  S.  114,  118,  46  L.  ed.  1080,  1082. 

8  See  supra,  §  145. 

S  377.  1  It  has  been  held  that 
where  the  court  has  denied  an  ex 
parte  application  which  has  been 
•withdrawn,  it  is  not  improper  for 
it  to  file  an  opinion  upon  the  ques- 
tion. Henry  v.  Harris,  191  Fed. 
868. 

2  Union  Sulphur  Co.  v.  Freeport 
Texas  Co.,  234  Fed.  191,  193,  194, 
per  Bradford,  J.:  "But  wholly 
aside  from  the  question  whether  an 
issue  of  infringement  under  conspi- 
racy together  with  an  issue  of  in- 
fringement pursuant  to  control,  au- 
thority or  direction,  formerly  could 
properly  form  the  subject-matter  of 
a  plea,   or  can  now,  under  rule   29 


be  heard  and  disposed  of  'before 
the  trial  of  the  principal  case, '  it 
is  obvious  that  considerations  dif- 
ferent from  those  usually  applicable 
to  other  eases  apply  to  suits  iu 
equity  to  recover  profits  and  dam- 
ages for  infringement  of  letters 
patent.  In  such  a  suit  the  grant- 
ing of  the  interlocutory  decree,  if 
there  be  one,  marks  the  divisional 
line  between  the  introduction  of  evi- 
dence touching  infringement  for  the 
luiri)ose  of  obtaining  or  preventing 
the  granting  of  such  decree,  and 
the  introduction  of  evidence  as  to 
infringement  before  the  master  to 
establish  the  amount  of  profits  or 
damages.  It  does  not  follow  that 
because  one  act  of  infringement  was 
the  result  of  conspiracy  or  of  con- 
trol, autliority  or  direction,  on  the 
part  of  the  defendant,  that  all 
others  were.  If  upon  a  separate 
hearing  before  the  granting  of  an 
interlocutory  decree  it  should  be  de- 
termined that  a  single  act  of  in- 
fringement    was     committed — which 


1860 


THE    HEARING 


[§377 


in  a  suit  to  enjoin  the  infringement  of  a  patent,  the  defendant 
has  defaulted  after  the  evidence  has  been  taken,  the  court 
should  not  pass  in  detail  upon  the  questions  that  have  arisen, 
but  should  only  go  over  the  case  sufficiently  to  dispose  of  the 
actual  controversy,  not  to  establish  a  precedent  that  might  be 
used  in  subsequent  patent  litigation  between  other  parties.' 
Where,  at  the  time  a  bill  was  filed,  the  plaintiff  had  the  right 
to  the  injunction  which  was  the  only  relief  therein  prayed  except 
costs,  but  subsequent  events  make  it  improper  to  grant  this 
relief  on  the  final  decree,  the  bill  may  be  retained  for  the 
assessment  of  any  damages  to  the  plaintiff  that  have  accrued ;  * 
or,  if  no  damages  are  awarded  for  costs  and  in  case  an  undertak- 
ing has  been  filed  as  a  condition  for  an  interlocutory  injunction, 
for  a  declaration  that  plaintiff  was  entitled  to  that  relief  in  order 
to  relieve  him  and  his  sureties  from  liability  upon  such  under- 
taking ;  *  but  no  appeal  will  lie  from  a  decree  in  such  a  case 
v/hen  the  only  grievance  of  the  plaintiff  is  that  he  has  been 
denied  his  costs.® 


so  far  as  infringement  is  concerned 
is  all  that  is  required  to  support 
such  a  decree — under  conspiracy  or 
pursuant  to  control,  authority  or 
direction,  manifestly  that  deter- 
mination should  not  control  the  ac- 
tion of  the  master  in  dealing  with 
evidence  of  acts  of  infringement 
committed  under  circumstances  dif- 
ferent from  those  found  to  exist  by 
the  court  on  the  separate  and  pre- 
liminary hearing  and  justify  an  in- 
terlocutory decree.  To  require  all 
evidence  touching  infringement  to 
be  introduced  before  the  time  for 
the  entry  of  the  interlocutory  de- 
cree would  be  to  uproot  the  settled 
practice  in  patent  suits  in  equity. 
On  the  other  hand,  if  the  master  is 
not  bound  with  respect  to  infringe- 
ment by  the  action  of  the  court  in 
the  first  instance,  save  so  far  as 
the  court  has  specially  found  acts 
of  infringement,  the  question  of 
conspiracy,  or  control,  authority 
and    direction    touching    other    acts 


of  infringement  is  left  open  for 
determination  on  the  circumstances 
surrounding  and  explanatory  of  such 
other  acts,  and  '  the  examination 
must  be  at  large.'  It  is  a  mat- 
ter of  regret  that  the  hearing  and 
decision  of  this  case  should  be  at- 
tended with  what  at  first  sight 
might  seem  unnecessary  delay  and 
expense;  but  for  the  reasons  above 
given  the  court  is  compelled  to  hold 
that  in  the  exercise  of  a  sound  dis- 
cretion the  motion  must  be  denied." 

3  Victor  Talking  Mach.  Co.  v. 
Leed   &   Catlin   Co.,   180   Fed.   778. 

4Wingert  v.  First  Nat.  Bank  of 
Hagerstown,  223  U.  S.  670,  56  L. 
ed.  605;  McCormiek  v.  Oklahoma 
City,  C.  C.  A.,  203  Fed.  921. 

5  Smith  V.  Ingersoll-Sergeant  Eock 
Drill  Co.,  7  Misc.  (N.  Y.)  374,  377; 
Williams  v.  United  Wireless  Tel. 
Co.,  (N.  Y.  Sup.  Ct.,  per  Bischoff, 
J.)  N.  Y.  L.  J.  AprU  24,  1912,  in 
which  the  writer  was  counsel. 

6  Wingert  v.   First  Nat.   Bank  of 


377] 


ACTION'    OP    THE    COURT    ll'ON    HEARING 


1861 


If  the  court  inclines  in  favor  of  the  defendant,  it  will  usually 
render  a  final  decree  dismissing  the  bill.  The  dismissal  may  be 
absolute  or  without  prejudice.  An  absolute  decree  of  dismissal 
is  an  absolute  bar  to  any  subse(iuent  suit  brought  for  the  same 
cause.''  A  dismissal  w'ithout  prejudice  is  no  bar  to  another 
suit  brought  for  the  same  cause  of  action,  provided  that  the 
defects  on  account  of  which  the  bill  was  dismis.sed  are  remedied.* 
A  dismissal  without  prejudice  is  usually  ordered  when  a  bill  is 
dismissed  for  want  of  parties,^  oi-  for  want  of  jurisdiction  in  a 
Federal  court, ^•^  or  for  nuiltifariousness,^^  or  foi-  "a  slip  oi- 
mistake  in  the  pleadings  or  in  the  proof,'' ^'^  or  Ix-causc  of  the 
complainant's  election  to  proceed  at  law.^^  Where  tlie  facts  as 
they  exist  do  not  entitle  the  complainant  to  an  injunction ;  but  it 
appears  not  impossible  that  a  subsequent  change  of  circum- 
stances will  entitle  him  to  such  relief;  a  bill  may  be  dismissed 
without  prejudice  to  the  right  to  apply  for  the  same  relief  under 
changed  conditions.^*  The  Supreme  Court  will  reverse  a  decree 
which  dismissed  a  bill  absolutely  when  the  dismissal  should 
have  been  without  prejudice."  Where  the  dismissal  is  because 
the  plaintiff  has  an  a(lc(iuate  remedy  at  law,  the  decree  shoiild 


Hagerstown,  22:5  U.  S.  670,  56  L. 
ed.  605. 

7  Case  V.  BeauiTgard,  101  U.  S. 
688,  25  L.  e<l.  972;  Uurant  v.  Essex 
Co.,  7  Wall.  107,  19  L.  ed.  154. 

SWaUlen  v.  Rodley,  14  Pet.  156, 
161,  10  L.  ed.  398,  400;  Daniell's 
Ch.  Pr.  (5th  Am.  ed.)  994,  995; 
Bosse  V.  Rust,  4  J.  Ch.  (N.  Y.)  300. 

9Kendig  v.  Dean,  97  U.  S.  423, 
24  L.  ed.  1061. 

lOHartell  v.  Tilghain,  99  U.  S. 
547,  25  L.  ed.  357 ;  Gaylords  v.  Kel- 
shaw,  1  Wall.  81,  17  L.  ed.  612; 
Holliiis  V.  Brierfeld  C.  &  T.  Co.,  150 
V.  S.  371,  37  L.  ed.   1113. 

11  Williams  v.  Jackson,  107  U.  S. 
478,  484,  27  L.  ed.  529,  531. 

12T)anieirs  Ch.  Pr.   (2d  Am.  ed.) 

994,  995;  MeNeill  v.  Caliill,  2  Bligh, 

228;  Woollam  v.  Haern,  7  Ves.  211, 

222;  Rosse  v.  Rust,  4  J.  Ch.  (N.  Y.) 

Fed.  Piac.  Vdl.  11—47 


300.  For  examjde,  when  the  bill 
showed  a  good  ground  of  equitable 
relief  as  to  one  jilaintiff,  l)ut  failed 
to  show  what  interest  the  other  had 
in  the  subject-matter  of  the  litiga- 
tion. House  V.  Mullen,  22  W^all.  42, 
22  L.  ed.  838.  But  see  Ogsbury  v. 
La  Farge,  2  N.  Y.  113,  and  S  187. 

13  Countess  of  Plymouth  v.  Bla- 
don,  2  Vern.  32;  Livingston  v. 
Kane,  3  J.  Ch.  (N.  Y.)  224;  Rogers 
V.  Vosburgh,  4  J.  Ch.   (N.  Y.)  84. 

14  Galveston,  H.  &  S.  A.  Ry.  Co. 
V.  ITnited  States,  222  Fed.  175;  Des 
Moines  Gas  Co.  v.  Des  Moines,  238 
r.  S.  153;  Phoenix  Rys.  v.  Geary, 
239  U.  S.  277. 

16  House  V.  Mullen,  22  Wall.  42, 
22  L.  ed.  383;  Texas  &  P.  Ry.  Co. 
V.  Interstate  Tr.  Co.,  155  U.  S.  585. 
39  L.  ed.  271 ;  Fougere  v.  Jones,  66 
Fed.  316. 


1862  THE   HEARING  [§  377 

state  that  it  is  without  prejudice  to  a  suit  at  law.^^  Upon  a 
hearing  of  a  demurrer  a  case  improperly  upon  the  common-law 
docket  was  transferred  to  the  equity  docket  and  at  the  same 
time  decided.^' 

If,  on  the  other  hand,  the  court  inclines  in  favor  of  the  plain- 
tiff, unless  the  bill  pray  merely  for  a  perpetual  injunction,  it 
rarely  renders  a  final  decree  at  the  first  hearing  of  the  cause. 
It  often  directs  a  reference  to  a  master  to  take  accounts  and 
assess  damage ;  i*  and  it  not  infrequently  gives  leave  to  either 
party  to  apply  for  further  orders  or  directions  "at  the  foot  of 
the  decree"  which  it  orders  entered.!^    If  the  court  is  in  doubt 
concerning  the  facts,  it  may  direct  a  feigned  issue,  or  an  action 
at  law,  or  a  reference  to  a  master,  to  aid  in  determining  them. 
In  some  cases  under  the  anti-trust  acts  the  court  may  deny  an 
injunction  but  retain  the  bill  for  further  action  in  case  of  the 
commission  of  illegal  acts  charged  in  the  bill  but  not  yet  com- 
mitted nor  proved  to  have  been  threatened.^^"    In  one  case,  when  a 
bill  had  been  filed  by  a  bondholder  praying  for  the  appointment 
of  a  receiver  of  a  canal  company,  the  court  at  the  hearing  denied 
the  application  for  a  receiver,  but  retained  the  bill  so  far  as  to 
compel  the  corporation  to  file  an  annual  account. ^^ 

16  Sanders  v.  Devereux,  C.  C.  A.,  see  Hughes  t.  Jones,  3  De  G.,  F.  & 
60  Fed.  311,  316.  J.  307. 

17  Dancel    v.    United    Shoe    Mach.  20  U.  S.  v.  U.  S.  Steel  Corporation, 
Co.,  120  Fed.  839.  251   U.   S.   417,  445;    U.   S.   v.   Am. 

18  See  ch.  XXV.  Can  Co.,  234  Fed.   1019. 

19  Legrand  v.  Whitehead,  1  Eus9.  21  Stewart    v.   C.    &    O.    C.    Co.,   5 
309;   Wetmore  v.   St.  Paul  &  P.  E.  Fed.  149. 

Co.,  3   Fed.   177,  infra,   §405.     But 


CHAPTER  XXIV. 

ISSUES  AT   LAW. 

§378.  Power  of  court  to  direct  issues  at  law.  WIrmi  the 
chancellor  was  in  doubt  concerning  any  question  of  fact  arising 
in  the  cause,  the  evidence  in  regard  to  whieli  was  conflicting  or 
insufficient,*  it  was  his  custom  to  compel  its  trial  before  a  jur^' 
upon  a  feigned  issue;  and,  if  their  verdict  was  satisfactory  to 
him,  to  assume  the  trutli  of  the  facts  establislied  by  the  same 
as  the  basis  of  his  decree.^  This  power  of  the  chancellor  is  also 
vested,  independently  of  any  special  statute,  in  all  the  courts 
of  the  United  States  which  have  equitable  jurisdiction;'  but 
in  cases  arising  under  the  patent  laws  it  has  been  increased  by 
a  statute  providing  that  the  Circuit  Courts  of  the  United  States, 
"when  sitting  in  equity  for  the  trial  of  patent  causes,  may 
impanel  a  jury  of  not  less  than  five  and  not  more  than  twelve 
persons,  subject  to  such  general  rules  in  the  premises  as  may 
from  time  to  time  be  made  by  the  Supreme  Court,*  and  submit 
to  them  such  questions  of  fact  arising  in  such  cause  as  such 
Circuit  Court  shall  deem  expedient ;  and  the  verdict  of  such 
jury  shall  be  treated  and  proceeded  upon  in  the  same  manner 
and  with  the  same  effect  as  in  the  case  of  issues  sent  from 
chancery  to  a  court  of  law  and  returned  with  such  findings. ' ' ' 
The  power  to  direct  an  issue  at  laAv  concerning  incidental  and 
subordinate  facts  still  exists  notwithstanding  the  new  equity 
rules.^     A   trial  of  an   issue  at   law  may  be  directed   at   any 

§  378.     1  Moons  v.  De  Bornalcs,  1  4  No  rules  upon  this  subject  have 

Buss.    301;    Burkett    v.    Kandall,    3  hitherto  been  made. 

Mer.  466.  6  18  St.   at   L.,  eh.   77,  p.   315 ;    1 

2  3  Rl.  Com.  4.12.  Supp.    V.    S.    R.    S.    136;    Watt    v. 

3  Harding  v.  Handy,  11  Wheat.  Starke.  101  U.  S.  247,  25  L.  ed.  826. 
103,  6  L.  ed.  429;  Goodyear  v.  Prov-  6  Vosburg  Co.  v.  Watts,  221  Fed. 
idence  R.  Co.,  2  Cliff.  351;   Johnson  402,   construing  equity   rule   23. 

V.  Harmon,  94  U.  S.  371,  378,  24  L. 
ed.  271,  273. 

1863 


1864 


ISSUES    AT    LAW 


[§  378 


time.'''  The  application  for  this  may  be  denied  for  laches  after 
the  report  of  a  master.^  The  court  may  decide  a  cause  without 
a  trial  of  an  issue  which  it  has  ordered,  and  even  without  re- 
voking its  previous  order  directing  one.®  The  order  of  a  judge 
directing  an  issue  at  law  is  discretionary,  and  it  is  doubtful 
whether  or  not  it  may  be  reviewed  upon  appeal.^" 

It  was  formerly  an  almost  invariable  custom  to  direct  an  issue 
when  the  question  to  be  determined  was  the  validity  of  a  will 
as  against  an  heir,  or  the  true  heir-at-law  of  a  decedent,  or  the 
right  of  a  rector  to  tithes.^^  Where  the  defendants  in  a  suit  for 
partition,  deny  the  plaintiffs  title  and  possession  of  any  interest 
in  the  land,  they  are  entitled  to  a  trial  on  that  issue  at  law.^' 
It  was  very  common,  moreover,  when  an  allegation  in  a  sworn 
answer,  the  plaintiff  not  having  waived  answer  under  oath,  was 
only  controverted  by  the  testimony  of  a  single  witness  sup- 
ported by  corroborating  circumstances ;  ^^  or  when,  by  deter- 
mining in  the  way  he  inclined,  the  judge  would  find  a  person 
guilty  of  forgery.^*  It  seems  to  have  been  the  opinion  of  Judge 
Hammond  that  it  is  the  duty  of  a  Federal  court  of  equity  to 
direct  an  issue  at  law  of  a  common-law  claim  against  a  receiver.^^ 
An  issue  may  be  directed  notwithstanding  a  report  of  auditors 
upon  the  facts.^^  The  court  sometimes  directs  only  a  single  issue 
and  sometimes  several,  according  to  the  number  of  substantial 
points  upon  which  it  deems  it  necessary  to  take  the  opinion  of  a 
jury;  and  it  will,  when  the  question  to  be  decided  embraces 
several  disputed  circumstances,  direct  an  issue  upon  each  of 
them.^''^    If  the  parties  cannot  agree  upon  the  form  of  an  issue, 


7N.  J.  &  N.  C.  Land  &  Lumber 
Co.  V.  Garflner-Laey  Lumber  Co., 
ILS  Fed.  395. 

8  Richmond  Cedar  Works  v.  Pin- 
nix,  288  Fed.  785. 

9  Field  v.  Holland,  6  Cranch  8, 
3  L.  ed.  136;  Cook  v.  Bay,  4  How. 
(Miss.)   485. 

10  See  Blaok  v.  Lamb,  1  Beasley 
(N.  J.),  108;  Ward  v.  Hill,  4  Gray 
(Mass.),  593;  Crittenden  v.  Field, 
8  Gray   (Mass.)   621. 

113  Bl.  Com.  452;  Lord  Fingal  v. 
Blake,  1  Molloy,  113;  Vaigneur  v. 
Kirk,  2   Desaus.    (S.   C.)    640;    Wil- 


liams   V.    Price,    4    Price,    156,    160. 

12  Gilbert  v.  Hopkins,  C.  C.  A., 
254  Fed.  196. 

ISDaniell's    Ch.    Pr.,    ch.    XXYI, 

§1. 

14  Bishop  of  Winchester  v.  Four- 
nier,  2  Ves.  Sen.  445,  446;  Apthorp 
V.  Comstock,  2  Paige  (N.  Y.)  482. 
But  see  Peake  v.  Highfield,  1  Russ. 
559. 

ISAtkyn  v.  Wabash  Ry.  Co.,  41 
Fed.  193;   supra,  §331. 

16  Field  v.  Holland,  6  Cranch  8, 
3  L.  ed.  136. 

17  Bryan    v.    Parker,    1    Y.    &    C. 


§380] 


TIME   WHEN    ISSUE   IS   DIRECTED 


1865 


it  will  be  settled  either  by  the  judge  or  by  a  master,  as  the 
court  deems  most  expedient.^*  By  goinor  to  trial  upon  an  issue 
neither  party  is  precluded  from  any  right  he  may  afterwards 
have  to  appeal  from  the  order  directing  it.^® 

§  379.  Matters  concerning  which  an  issue  is  directed.  No 
party  \nll  be  permitted  to  take  an  issue  in  a  different  form  from 
that  which  he  has  stated  in  his  pleadings;^  but  the  court  may 
upon  its  o^Ti  motion  direct  an  issue  to  try  a  matter  not  in  issue 
arising  upon  the  hearing,  and  which  it  tliinks  sliould  be  deter- 
mined before  a  final  decree  is  rendered. ^  An  issue  also  may  be 
directed  upon  claims  brought  in  under  a  decree  by  persons  not 
upon  the  record.^  An  issue  will  not,  however,  be  directed  to 
establish  a  point  which  a  party  set  up  in  his  pleading  but 
omitted  in  his  proof.* 

§380.  Time  when  an  issue  is  directed.  According  to  the 
old  practice  an  issue  was  rarely  directed  before  the  original 
hearing  of  a  cause. ^  Instances  have  occurred,  however,  when 
this  has  been  done  before  tliat  time  upon  motion,^  and  even  to 
determine  the  facts  upon  a  motion  for  an  injunction  or  a  re- 
ceiver, when  the  affidavits  for  or  against  the  motion  were  con- 
flicting.3  An  issue  has  been  often  granted  after  the  original 
hearing  at  a  hearing  for  further  directions ;  *  and  even  after 
wards.^  Under  the  statute  providing  for  the  direction  of  issues 
in  patent  causes,  it  would  seem  that  one  can  now  be  directed 
by  an  interlocutory  order  more  frequently  than  formerly. ^ 


170;  Bailey  v.  Sewcll,  1  Russ.  2.39; 
Earl  of  Newburgh  v.  Countess,  5 
Madd.  .364. 

18  Daniel] 's  Ch.  Pr.,  t-h.  XXVI, 
«  1. 

19  White  V.  Lisle,  3  Swanst.  342; 
I^egare  v.  Daly,  1  Ves.  Sen.  192; 
De  Taatet  v.  Bordenave,  Jacob,  .516. 

§379.  ISt.  Paul's  v.  Kettle,  2 
V.  &  B.  1;  Bennett  v.  Neale, 
Wightw.  324;  Savage  v.  Carroll,  1 
Ball  &  B.  548. 

2Balch  V.   Tucker,  2  Ch.  Cas.   40. 

3  Price  v.  Price,  cited  in  2  Smith  's 
Ch.  Pr.  76. 

4  Savage  v.  Carroll,  1  Ball  &  B. 
548;  Price  v.  Berrington,  3  Macn. 
&  G.  486. 


§  380.  1  Fullagar  v.  Clark,  18 
Ves.  481. 

ZMiddleton  v.  Sherbums,  4  Y.  & 
C.  358;  Kent  v.  Burgess,  11  Sim. 
361;  Townley  v.  Deare,  3  Beav. 
213;  Lancashire  v.  Lancashire,  9 
Beav.  259. 

3  Gardiner  v.  Howe,  4  Madd.  236; 
De  Tastet  v.  Bordenave,  Jacob,  516. 

4  New  Orleans  G.  L.  &  B.  Co.  v. 
Dudley,  8  Paige   (N.  Y.)   452. 

6  Price  V.  Price,  cited  in  2 
Smith's  Ch.  Pr.  76.  See  Goodyear 
V.  Providence  R.  Co.,  2  Fish.  Pat. 
Cas.  499. 

6  18  St.  at  L.,  ch.  77,  p.  315;  1 
Supp.  U.  S.  R.  S.  136. 


1866  ISSUES   AT   LAW  [§  381 

§  381.  Manner  of  trying  an  issue.  The  manner  of  trying 
a  feigned  issue  is  thus  described  by  Blackstone.  "But  as  no 
jury  can  be  summoned  to  attend  this  court,  the  fact  is  usually 
directed  to  be  tried  at  the  bar  of  the  court  of  King's  bench,  or 
at  the  assizes  of  a  feig^ned  issue.  For  (in  order  to  bring  it  there, 
and  have  the  point  in  dispute,  and  that  only,  put  in  issue)  an 
action  is  brought,  wherein  the  plaintiff,  by  a  fiction,  declares 
that  he  laid  a  wager  of  51.  with  the  defendant  that  A  was  heir- 
at-law  to  B ;  and  then  avers  that  he  is  so ;  and  therefore  demands 
the  51.  The  defendant  admits  feigned  wager,  but  avers  that 
A  is  not  the  heir  to  B,  and  thereupon  that  issue  is  joined,  which 
is  directed  out  of  chancery  to  be  tried;  and  thus  the  verdict 
of  the  juror  at  law  determines  the  fact  in  the  court  of  equity. 
These  feigned  issues  seem  borrowed  from  the  sponsio  judicialis 
of  the  Romans :  and  are  also  frequently  used  in  the  courts  of 
law,  by  consent  of  the  parties,  to  determine  some  disputed  right 
without  the  formality  of  pleading,  and  thereby  to  save  much 
time  and  expense  in  the  decision  of  a  cause. ' '  ^  The  legal  fiction 
is,  however,  now  practicall}'  out  of  use;  and  issues  are  tried 
upon  the  common-law  side  of  a  Circuit  or  District  Court  fre- 
quently by  the  same  judge  that  directed  tliem.'^  The  course  of 
proceeding  upon  the  trial  of  an  issue  is  substantially  the  same 
as  that  in  ordinary  trials  at  common  law,  unless  the  judge  who 
directed  it  has  given  special  directions  upon  the  subject.^  When, 
however,  a  will  was  sought  to  be  proved  against  an  heir-at-law, 
at  the  suit  of  a  devisee,  it  was  necessary  by  the  former  practice 
to  prove  the  execution  of  the  will  by  examining  all  the  witnesses 
who  were  alive  and  capable  of  giving  testimony.*  If  the  order 
for  an  issue  direct  that  a  number  of  witnesses  be  examined,  but 
the  plaintiff  declines  to  call  some,  the  judge  himself  will  call 
and  examine  the  rest.^  It  seems,  too,  that  the  jury  should  be 
sworn  in  the  words  of  the  order  of  issue.^  The  order  of  issue, 
usually  contains  directions  as  to  admissions  to  be  made  and 
documents  to  be  produced  by  the  parties.''     No  admission  of 

§381.     13  Bl.  Com.  452.  216;  Ogle  v.  Cook,  1  Ves.  Sen.  177; 

2  See  Wilson  v.  Riddle,  123  U.  S.  Bullen     v.     Michel,     2     Price,    399; 
608,  31  L.  ed.  280.  Bootle  v.   Blundell,  19  Ves.  494. 

3  See  Kerr  v.  South  Park  Com  'rs,  5  Groom  v.   Chambers,   2   Mont.  & 
117  U.  S.  379,  29  L.  ed.  924;  Wilson  Ayr.  742. 

V.  Riddle,  123  U.  S.   608,  31  L.  ed.  6  Wilson   v.   Barnum,   1   Wall.   Jr. 

280.  342. 

4  Townsend    v.     Ives,     1     Wilson,  7  Duke   of   Beaufort   v.   Morris,   2 


§381] 


MANNER  OF  TRYING   AN    ISSUE 


1867 


any  fact  not  clearly  admitted  by  the  pleadings  will,  however, 
be  required.^  it  such  directions  are  omitted  in  the  order  for 
the  issue,  they  ma}-  be  obtained  afterwards  upon  motion.®  The 
party  upon  whom  the  burden  of  proof  rests,  whether  he  be 
plaintitf  or  defendant  in  the  original  suit,  is  directed  by  the  order 
to  act  as  plaintiff  in  the  issuc^** 

It  is  the  defendant's  duty  to  name  an  attornej'  to  appear 
for  him  at  the  trial  of  the  issue.  If  he  fails  to  do  so,  it  has 
been  held  that  an  order  may  be  obtained  directing  that  he  name 
an  attorney  in  four  days,  or  else  that  the  issue  be  taken  as 
tried  and  a  verdict  given  for  the  plaintill^^  The  decree  or 
order  for  the  issue  should  specify  a  time  when  it  is  to  be  tried.^^ 
If  the  plaintiff'  make  default  in  having  the  case  ready  for  trial 
at  the  appointed  time,^^  or  either  party  fail  then  to  appear, 
the  court  will  order  the  issue  taken  pro  confesso  against  him, 
unless  he  can  show  a  reasonable  ground  for  a  postponement.^* 
It  seems  that  an  application  for  a  postponement,^^  or  for  a 
special  jury,  if  one  be  desired, ^^  should  be  made  to  the  judge 
who  directed  the  issue.  A  case  of  doubtful  authority  holds  that 
it  is  error  to  try  an  issue  in  equity  before  the  same  jury  which 
decides  upon  an  issue  at  common  law  in  the  same  case.^'''  A 
person  interested  in  the  result  of  an  issue,  but  who  refuses  to 
be  a  party  to  it,  may  be  allowed  to  attend  liic  trial  by  counsel, 
in  which  case  he  may  be  compelled  to  produce  documents 
material  to  the  case  and  in  his  possession. ^^ 

After  the  trial,  the  trial  judge  certifies  how  the  verdict  was 
found,  but  judgment  should  not  be  entered  wpnn  it.^^  If  any 
special  circumstances  have  occurred  at  the  trial  which  he  thinks 


Phil.  683;  Apthorp  v.  Comstock,  2 
Paige  (N.  Y.)  482;  Cart  v.  Hodg- 
kin,  3  Swanst.  161. 

8  Duke  of  Bcaiifort  v.  Morris,  2 
Phil.  683. 

9  Marsh  v.  Sibbald,  2  V.  &  B.  375. 

10  Parker  v.  Morrcll,   2   Phil.   453. 

11  Wilson  V.  Oinsor,  2  Dick.  521  ; 
Hart  la  11(1  v.  Daiicoeks,  5  De  G.  & 
Sm.  561. 

12  Daniel] 's  Ch.  Pr.,  ch.  xxvi,  §  1. 
ISBearblock  v.  Tyler,   1  J.  &  W. 

225;  Casborno  v.  Barsham,  5  M.  & 
C.  113. 


liCasborne  v.  Barsham,  5  M.  &  C. 
113;  Hargravc  v.  Hargrave,  8  Beav. 
289. 

15  Rebel  v.  Pliilpot,  9  Sim.  614. 

16  Anon.,  2  P.  Wms.  68.  As  to 
depositions,  see  Cahoon  v.  Ring,  1 
Cliff.  592. 

17  Union  Pae.  R.  Co.  v.  Syas,  C. 
C.  A.,  246  Fed.  561. 

18  Pindar  v.  Smith,  Mad.  &  Geld. 
48. 

19  Kerr  v.  S.  Park  Com 'rs,  117  U. 
S.   379. 


1868 


ISSUES   AT   LAW 


[§382 


it  riglit  to  report  to  the  court,  he  indorses  them  on  the  postea.^^ 
He  may  also  furnish  to  the  court  of  equity  a  description  of  the 
trial. 21  An  irregularity  or  omission  in  this  respect  may,  how- 
ever, be  corrected  or  disregarded. ^^ 

§382.  Effect  of  the  finding-  of  a  jury  upon  an  issue.  "The 
verdict  of  a  jury  upon  an  issue  out  of  chancery  is  only  ad- 
visory and  never  conclusive  upon  the  court.  It  is  intended  to 
inform  the  conscience  of  the  Chancellor.  It  may  be  disregarded, 
and  a  decree  rendered  contrary  to  it."^  If  therefore,  either 
party  be  dissatisfied,  he  must  move  for  a  new  trial  on  the  equity 
and  not  on  the  common-law  side  of  the  court ;  ^  "  and  for  that 
purpose  the  part}-  applj^ing  for  a  new  trial  must  procure  notes 
of  the  proceedings  and  of  the  evidence  given  at  the  trial  for 
the  use  of  the  Chancellor.  This  is  done  either  by  moving  the 
Chancellor  to  send  to  the  judge  who  tried  the  issue,  for  his 
notes  of  trial ;  or  procuring  a  statement  of  the  same  in  some 
other  proper  Avay.  The  Chancellor  then  has  before  him  the 
evidence  given  to  the  jury,  and  the  proceedings  at  the  trial, 
and  may  be  satisfied,  bj-  an  examination  thereof,  that  the  verdict 
ought  not  to  be  disturbed.  The  evidence  and  proceedings  then 
become  a  part  of  the  record,  and  go  up  to  the  court  of  appeal 
if  an  appeal  is  taken.  "^  Unless  such  a  motion  is  made,  no 
error  committed  in  the  course  of  the  trial  of  the  issue  can  be 
reviewed  upon  appeal.*  Such  an  application  should  be  made 
by  motion  or  petition  before  the  cause  comes  on  for  hearing 
upon  further  directions.* 

The  form  of  an  issue  cannot,  however,  be  changed  in  this 


20  White  v.  Lisle,  3  Swanst.  .342; 
Trenton  B.  Co.  v.  Russell,  1  Green, 
Ch.   (N.  J.)  492. 

21  Bassett  v.  Johnson,  1  Green, 
Ch.    (N.  J.)    154. 

22  Wilson  V.  Riddle,  123  U.  S.  608, 
31  L.  ed.  280. 

§  382.  1  Bradley,  J.,  in  Watt  v. 
Starke,  101  U.  S.  247,  252,  25  L.  ed. 
826,  827.  See  also  Basey  v.  Galla- 
gher, 20  Wall.  670,  22  L.  ed.  452; 
Allen   V.    Blunt,    3    Story,    742,   746. 

2  Watt  V.  Starke,  101  U.  S.  247, 
250,  25  L.  ed.  826,  827;   Johnson  v. 


Harmon,  94  U.  S.  371,  378,  24  L.  ed. 
271,  273. 

3  Bradley,  J.,  in  Watt  v.  Starke, 
101  U.  S.  247,  250,  251,  25  L.  ed. 
826,  827.  See  also  Johnson  v.  Har- 
mon, 94  U.  S.  371,  24  L.  ed.  271. 

4Brockett  v.  Broekett,  3  How. 
691,  11  L.  ed.  786;  Johnson  v.  Har- 
mon, 94  U.  S.  371,  24  L.  ed.  271; 
Watt  V.  Starke,  101  U.  S.  247,  25  L. 
ed.   826. 

6  Atty.  Gen.  v.  Montgomery,  2 
Atk.  378;  Van  Alst  v.  Hunter,  5  J. 
Ch.    (N.  Y.)    148,   152  . 


§  382]  EFFECT  (»F  VERDICT  1869 

manner.     A  party  desiring  to  alter  it  must  do  so  by  presenting 
a  petition  for  a  rehearing  of  the  deeree  or  order  directing  it.^ 
The  manner   in    which    the  verdict    is   reviewed   in  equity   is 
thus  described   by   Lord    Hi(h)n :     "In  considering,'  whether,   in 
such  a  case  as  this,  the  verdict  ought  to  ])e  disturbed  by  a  new 
trial,  allow  me  to  say  that  this  court,  in  grantiug  or  refusing 
new  trials,  proceeds  upon  very  ditTerent  principles  from  those 
of  a  court   of  law.      Issues  are  dire<'ted  to  satisfy  the  judge, 
which  judge  is  supposed,  after  he   is  in   possession  of  all  that 
passed  upon  the  trial,  to  know  all  that  passed  there;  and  look- 
ing at  the  depositions  in  the  cause,  and   tlie  proceedings  both 
here  and  at  law,  he  is  to  see  whether,  on  the  whole,  llicy  do  or 
do  not   satisfy  him.     It  has  been   ruled   over  and  over  again, 
that  if,  on  the  trial  of  an  issue,  a  judge  reject  evidence  which 
ought  to  have  been  received,  or  receive  evidence  which  ought 
to  have  been  refused,  though  in  that  case  a  court  of  law  would 
grant  a  new  trial,  yet  if  this  court  is  satisfied,  that   if  the  evi- 
dence improperly  received  had  been  rejected,  or  the  evidence 
improperly  rejected  had  been   received,  the  verdict  ought  not 
to  have   been  different,   it   will  not   grant    a    new   trial   merely 
upon  such  grounds."'''     U])on  an  appeal  an  assignment  of  an 
error  in  instructions  to  the  jury  will  not  be  considered.'     The 
usual  grounds  for  directing  a  new  trial  of  an  issue  are,  "1st, 
the  alleged  improper  summing  up  of  the  judge ;  2dly,  because 
the  weight   of  evidence  is  against  the  verdict ;  and  3dly,  be- 
cause of  an  informality  in  the  evidence. ' '  ^    Surprise  and  fraud 
are  also  reasons  for  granting  a  new  trial. ^°    AVlicn  the  dispute 
concerns  the  title  to  land,   in   imitation   of  courts  of   law  two 
trials  of  the  issue  have  often  been  granted,  when  the  fir.st  verdict 
was  satisfactory  upon  the  evidence ;  ^^  and  sometimes  the  court 

eDaniell's  Ch.   Pr.    (3d   Am.  cd.)  Alaska  Min.   Co.,  183  U.  S.  563,  46 

1114.  L.  ed.  331. 

VLord    Eldon    in    Barker    v.    Rav,  9  Smith 's    Ch.    Pr.     (Phila.    ed.). 

2    RusR.    63.      See    also    Bootle    v.  vol.   ii,   p.   84.     See   also   Tatham   v. 

Blundell,    19    Ves.    494;    Tatham    v.  Wright,   2    Russ.   &   M.   1;    Watt   v. 

Wright,    2    Rusa.   &   M.    1  ;    Watt   v.  Starke,  101  U.  S.  247,  253,  25  L.  ed. 

Starke.  101  U.  S.  247,  252,  25  L.  ed.  826,  828. 

826,  827;   McKinley  Creek  Min.  Co.  10  Exton    v.    Turner,    2    Ch.    Cas. 

V.   Alaska  Min.   Co.,   183   U.   S.   563,  80;   Standen  v.  Edwards,  1  Ves.  Jr. 

46  L.  ed.  331.  133. 

8  McKinlev     Creek     Min.     Co.     v.  11  Earl  of  Darlington  v.  Bowes,  1 


1870  ISSUES   AT   LAW  [§  383 

has  directed  a  second  trial  for  the  solemn  determination  of 
the  matter,  without  setting  aside  the  first  verdict,  the  effect  of 
which  was  that  the  first  verdict  was  admitted  in  evidence  upon 
the  second  trial,  and  had  its  weight  with  the  jury.^^  In  such 
case,  the  court  usually  made  it  a  condition  of  granting  a  sec- 
ond trial,  that  the  applicant  should  pay  to  the  other  party  the 
costs  of  the  first.^3  It  has  been  held  that  this  practice  does 
not  apply  to  the  issue  of  title,  seisin,  or  possession  in  a  suit 
for  partition;  but  that  the  verdict  in  such  a  case  is  conclusive 
upon  the  facts. ^* 

§383.  Proceeding's  after  the  trial  of  an  issue.  After  the 
trial  of  an  issue  and  the  completion  of  the  record  by  the  addi- 
tion of  the  postea,  the  cause,  unless  a  new  trial  is  obtained 
should  be  set  down  for  hearing.^  This  may  be  done  in  the 
usual  manner;  but  it  seems,  not  before  the  expiration  of  the 
first  four  days  of  the  term  following  the  trial,  in  order  that 
the  party  against  whom  the  verdict  has  been  found  may  have 
an  opportunity  of  moving  for  a  new  trial.^  The  course  then 
comes  on  in  the  regular  course,  when  such  final  or  other  decree 
as  is  proper  is  pronounced.  The  costs  of  an  issue  do  not  follow 
the  verdict  as  a  matter  of  course,  but  are  in  the  discretion  of 
the  court  which  directed  the  issue ;  ^  though  they  are  usually 
given  to  the  party  in  whose  favor  the  verdict  was  rendered.* 
In  one  case  the  court  ordered  an  advance  out  of  a  fund  in  its 
possession,  in  order  to  enable  the  parties  to  try  an  issue  directed 
by  it.5 

Eden,  271 ;   Stace  v.  Mabbot,  2  Ves.  2  1  Newland  's  Ch.  Pr.  357. 

Sen.  552.  3  Decker   v.    Caskey,   2    Green    Ch. 

12  Baker  v.  Hart,  3  Atk.  542.  (N.  J.)    446. 

13  Baker  v.  Hart,  3  Atk.  542 ;  4  Corporation  of  Rochester  v.  Lee, 
Edwin  V.  Thomas,  1  Vern.  489.  2  De  G.  M.  &  G.  427. 

14  Gilbert  v.  Hopkins,  C.  C.  A.,  5  Coombs  v.  Brooks,  3  De  G.  &  S, 
204  Fed.  196.  452. 

§  383.     1  Allen  v.  Blunt,  3   Story, 
742;  Daniell's  Ch.  Pr.,  eh.  xxvi. 


CHAPTER  XXV. 

PROCEEDINGS  IN  A  MASTER'S  OFFICE. 

§  384.  References  to  masters.  In  general.  The  labors  of  a 
judge  in  a  court  of  equity  are  often  materially  lightened  by 
referring  the  consideration  of  matters  of  fact  to  a  master  in 
chancery,  who  is  directed,  by  it  to  investigate  the  same  and  re- 
port his  opinion  thereon  to  the  court.  Certain  ministerial  acts 
which  a  court  of  equity  undertakes  are  also  performed  by  it 
through  a  master.  The  questions  which  are  ordinarily  referred 
to  masters  in  chane-oiy  are:  as  to  who  are  the  heirs,  next  of 
kin,  creditors,  members  of  a  particular  class  of  legatees  or 
other  persons  who  are  entitled  to  share  in  a  fund  or  in  an 
estate  in  the  hands  of  the  court  for  distribution ;  as  to  whether 
the  title  to  real  estate  is  good;  as  to  the  state  of  the  law  of  a 
foreign  country ;  as  to  whether  one  of  two  books  or  other  pub- 
lications is  pirated  from  the  other;  as  to  the  amount  of  damage 
suffered  by  the  granting  or  withholding  of  an  injunction;  the 
taking  of  accounts ;i  the  computation  of  interest;  the  settle- 
ment of  conveyances,  and  other  deeds;  the  selling  of  property; 
the  appointment  of  trustees,  receivers,  and  guardians.  A  master 
has  been  appointed  in  a  suit  to  enjoin  the  enforcement  of  a 
statute  regulating  the  charges  of  a  corporation  engaged  in  a 
public  service,^  and  it  has  been  said  that  this  is  the  proper 
practice;^  and  the  superintendence  of  the  performance  of  their 
duties  by  receivers  to  supervise  an  election  of  directors  of  a 
corporation.* 

§  384.     1  As    to     the     preliminary  Light  Co.  v.  City  of  Lincoln,  223  U. 

proof    required    before    a    reference  S.  349,  357,  56  L.  ed.  466.  469. 

for    an    accounting,    see    Columbian  3  Lincoln  Gas  &  El.  Light   Co.  v. 

Eq.   Co.   V.   Merc.   Tr.   &  T>.   Co.,   C.  City  of  Lincoln,  223  V.  S.  349,  361, 

C.   A.,  1L3  Fed.  23;    infra,   §389.  56  L.  ed.  466,  471. 

2  Chicago,   Milwaukee   &   St.   Paul  4  Bartlett   v.  Gates,  118   Fed.   66; 

Ry.  Co.  V.  Tompkins,  176  V.  S.  167,  which  contains  the  order.     For  sub- 

44    L.   ed.   417;    Lincoln   Gas   &   El.  sequent     proceedings,     see     37     Am. 

1871 


1872 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§384 


The  judge  may  himself,  however,  attend  to  any  of  these 
matters  without  the  aid  of  a  master.^  The  decision  of  the  case 
or  of  the  issues  joined  by  the  pleadings  cannot  be  referred 
to  a  master,  except  by  consent.^  Such  references  are,  however, 
very  frequent,  especially  in  the  First  Circuit. 

"Save  in  matters  of  account,  reference  to  a  master  shall  be 
the  exception  and  not  the  rule  and  shall  be  made  only  on  a  show- 
ing that  some  exceptional  condition  requires  it."^* 

A  master  in  equity  cannot  be  given  power  to  grant  an  in- 
junction.''' The  new  equity  rules  have  not  deprived  the  courts  of 
any  power  to  refer  questions  to  a  master  which  they  previously 
possessed.' 

Where  the  order  recited  that  the  master,  was  appointed  to 
investigate  the  cause  and  report  to  the  court  what  amount,  if 
any,  was  due  by  reason  of  the  claim,  and  that  his  report  be 
filed  "subject  to  the  further  orders  of  the  court";  it  was  held 
that  this  did  not  refer  the  issues  to  him  for  final  decision.^    An 


Law  Eev.  124.  A  similar  reference 
was  made  in  Dii  Pont  v.  Du  Pont, 
242  Fed.  78,  138. 

5  Pepper  v.  Addicks,  153  Fed. 
383;  McManiis  v.  Sawyer,  237  Fed. 
231,  235;  Alexander  v.  Fidelity 
Trust  Co.,  238  Fed.  938,  947. 

6  Kimberley  v.  Arms,  129  U.  S. 
512,  523,  524,  32  L.  ed.  764,  768, 
769;  Morris  v.  Taylor,  23  N.  J.  Eq. 
131;  Haight  &  Freese  Co.  v.  Weiss. 
C.  C.  A.,  156  Fed.  328,  334;  Garing- 
er  V.  Palmer,  C.  C.  A.,  126  Fed.  906. 
The  stipulation  that  new  issues  be 
referred  to  a  master  to  whom  the 
court  has  previously  referred  the 
original  issues  does  not  make  the 
whole  reference  one  by  consent. 
Central  Improvement  Co.  v.  Cam- 
bria Steel  Co.,  C.  C.  A.,  201  Fed. 
811. 

6a  Eq.  Rule  59. 

TEe  Gordon,  250  Fed.  789;  as 
to  the  practice  in  bankruptcy  see, 
however,  infra,  §§  633,  638. 

8  Holt  Mfg.  Co.  V.  C.  L.  Best  Gas 


Traction  Co.,  245  Fed.  354. 

9  Blassengame  v.  Boyd,  C.  C.  A., 
178  Fed.  1.  It  was  held  that 
an  order  referring  an  action  to  a 
master  commissioner  to  take  testi- 
mony, hear  the  cause,  and  report  all 
the  matter  and  findings  therein  to 
the  court  for  further  proceedings, 
contemplated  a  finding  by  the  mas- 
ter upon  the  facts  and  the  law, 
with  the  right  to  the  parties  to  file 
exceptions,  and  with  power  in  the 
court  to  review  and  reconsider  on 
such  exceptions  all  the  findings  of 
law  and  of  fact,  and  for  that  pur- 
pose to  examine  and  weigh  the  evi- 
dence, and  enter  judgment  accord- 
ing to  the  result  of  such  re-exami- 
nation. Albert  F.  Eemy  Co.  v. 
La.  Dow,  C.  C.  A.,  230  Fed.  378. 
Where  after  a  reference  to  report 
to  the  court,  a  stipulation  was 
signed  that  the  court  might  refer 
the  cause,  with  respect  to  a  supple- 
mental bill  subsequently  filed  and 
the    proceedings    thereupon,    to    the 


§  385J 


WJIO    MAV    Bi;    -M'i'UlNTED    MASTER 


1873 


objection  to  au  order  of  reference  should  be  made  by  a  mo- 
tion to  vacate  or  modify  such  order. ^°  Otherwise,  except  per- 
haps Avhen  an  exception  is  noted  at  the  time  of  the  order,  all 
objection  thereto  is  waived. ^^  Where  the  record  does  not  show 
that  there  was  any  objection  to  the  reference  to  the  master, 
the  court  presumes  that  there  was  an  imi)lied  con.sent  thereto;  ^^ 
but  there  is  no  such  presumption  as  t(j  a  party  when  the  record 
does  not  show  that  he  was  present  when  the  reference  was 
ordered. ^3  A  consent  to  a  reference  to  a  master  is  a  waiver 
of  the  objection  that  there  is  an  adequate  remedy  at  law." 

The  extent  of  a  master's  authority  is  limited  by  the  decree 
or  order  api)ointing  him ;  ^^  and  it  has  been  said  that  it  can- 
not be  extended  even  by  consent, ^^  nor  upon  appeal. ^^ 

Where  no  objection  to  the  language  of  an  order  of  reference 
was  made  for  several  years,  and  in  the  meanwhile  one  of  the  par- 
ties had  died,  the  Circuit  Court  of  Appeals  refused  to  modify  it 
on  an  appeal  from  the  final  decree. ^^  A  standing  master  need 
not  be  required  to  file  a  bond.^^ 

§385.  Who  may  be  appointed  master.  The  District  Courts, 
"a  majority  of  all  the  judges  e-oncuiriiig  in  the  ap|)ointment," 
have  the  power  to  appoint  standing  masters  in  chancery  in  their 


master  for  the  same  jmrposes  as  of 
the  original  bill  and  agreeing  that 
he  might  inelude  in  liis  report  of 
the  case  made  by  the  original  bill 
his  report  of  that  made  by  the  sup- 
plemental bill  and  the  proceedings 
thereupon ;  it  was  held  that  the 
stipulation  did  not  broaden  the 
master  's  authority  conferred  by  the 
original  order  and  i-onfincd  his  .iu- 
risdiition  over  the  supplemental  is- 
sues within  the  limits  of  the  author- 
ity given  hini  over  those  originally 
raised,  so  that  it  was  the  duty  of 
the  .iudge  to  examine  the  eviiience 
and  to  determine  the  law  and  facts 
after  the  report  was  filed.  Keller  v. 
U.  S.,  C.  C.  A.,  ICS  Fed.   (597. 

10  Flanders   v.   Coleman.   249   Fed. 
757. 

11  Ibid. 

12  Haiglit   &   Freese  Co.   v.   Weiss, 


C.  C.  A.,  156  Fed.  328,  334.  Contra, 
Huarantee  Gold  Bond  Loan  &  Sav. 
Co.  V.  Edwards,  C.  C.  A.,  ]fi4  Fed. 
809,  where  the  reference  was  under 
a  general  order  made  before  the 
suit  was  brought;  Southern  \ly.  < 'o. 
v.  Simon,   184   Fed.  959. 

13  Wm.  Edwards  Co.  v.  La  Dow. 
C.  0.  A.,  230  Fed.  378. 

14  Sanders  v.  Riverside,  (.  C.  A.. 
118  Fed.  72(1. 

16  Lonsdale  Co.  v.  Moies,  2  Cliff. 
538. 

16  Farmers'  L.  &  Tr.  Co.  v.  Cen- 
tral R.  Co.  of  Iowa,  2  Fed.  656; 
Gordon  v.  Hobart,  2  Story,  243. 

I'Briggs  v.  Neal,  C.  C.  A..  120 
Fed.  224. 

18Gunn  v.  Black,  C.  C.  A.,  60 
Fed.   151. 

19  Seaman  v.  N.  \V.  Mut.  L.  I. 
Co.,  86  Fed.  49. 


1874 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§385 


respective  districts.^  A  District  Court  may  also  appoint  a 
master  pro  hac  vice  in  any  particular  case.^  "No  clerk  of  a 
district  court  of  the  United  States,  or  deputy,  shall  be  ap- 
pointed a  receiver  or  master  in  any  case,  except  where  a  judge 
of  said  court  shall  determine  that  special  reasons  exist  there- 
for, to  be  assigned  in  the  order  of  appointment. "  '  An  order 
appointing  a  clerk  of  the  court  master,  to  conduct  a  judicial 
sale,  without  assigning  special  reasons,  is  to  that  extent  erro- 
neous ;  but  the  error  does  not  affect  the  rest  of  the  order,  which 
is  amendable  in  that  respect.*  It  has  been  held  that  it  can  only 
be  set  aside  upon  appeal,  and  cannot  be  questioned  in  a  collateral 
proceeding,  as  by  exceptions  to  his  report  of  a  sale,  or  by  a 
motion  to  set  aside  an  appraisal  by  him.^  Another  statute  pro- 
vides that  "no  person  related  to  any  justice  or  judge  of  any  court 
of  the  United  States  by  affinity  or  consanguinity,  within  the  de- 
gree of  first  cousin,  shall  hereafter  be  appointed  by  such  court  or 
judge  to  be  employed  by  such  court  or  judge  in  any  office  or  duty 
in  any  court  of  which  such  notice  or  judge  may  be  a  member. ' '  ^ 
The  Federal  Trade  Commission  may  be  appointed  master  in 
chancery  to  settle  and  recommend  to  the  court  the  form  of  a 
decree  in  a  suit  by  the  Attorney  General  under  the  Anti  Trust 
Acts.'' 


§  385.  1  Eq.  Rule  68,  re-enacting 
rule  82  of  1842. 

2  Ibid. 

3  Ind.  Code  §  68,  36  St.  at  L.  1087 
re-enacting  20  St.  at  L.,  ch.  183, 
p.  415.  It  has  been  held:  that  this 
prohibition  is  for  the  benefit  of  the 
parties  to  the  litigation,  and  may  be 
waived  by  their  consent  to  an  or- 
der appointing  such  an  officer  mas- 
ter in  a  particular  case;  and  that 
after  such  an  order  of  decree  has 
thus  been  entered  and  the  parties 
have  proceeded  before  the  master,  it 
may  be  amended  by  the  assertion 
of  a  clause  stating  that  the  court 
has  determined  that  such  consent 
is  a  sufficient  special  reason  for 
such  appointment.  Fisher  v.  Hayes, 
22  Fed.  92. 

4Quinton  v,  Neville,  C.  C.  A., 
154  Fed.  432. 


6  N.  W.  Mut.  L.  I.  Co.  V.  Seaman, 
80  Fed.  357;  s.  c,  in  C.  C.  A.,  Sea- 
man v.  N.  W.  Mut.  L.  I.  Co.,  86 
Fed.  493. 

6  24  St  at  L.,  p.  552,  ch.  373, 
§  7.  A  final  decree  entered  upon 
the  report  of  a  master  whose  ap- 
pointment was  forbidden  by  this 
statute  is  not  void,  and  cannot  be 
set  aside  upon  motion  at  a  subse- 
quent term.  Farmers'  L.  &  Tr.  Co. 
v.  Iowa  Water  Co.,  80  Fed.  467. 
Whether  the  statute  forbids  the 
appointment  of  a  man  who  has  mar- 
ried a  sister  of  the  judge's  wife  is 
an  open  question.  Farmers'  L.  & 
Tr.  Co.  V.  Iowa  Water  Co.,  80  Fed. 
467,  469. 

7  38  St.  at  L.  722,  §7,  Comp.  St. 
S  8836g,  m2)ra,   S§  77h,   151a. 


§  386]  IJKINUING    OX    A    REFEREN'CE  1875 

§  386.  Bringing-  on  a  reference.  The  rules  provide  that, 
whenever  a  reference  is  made,  the  party  at  wliose  instance  or 
for  whose  benefit  it  was  directed  must  bring  the  same  to  a 
hearing  within  twenty  da^'s  succeeding  the  date  of  the  order 
for  a  reference.^  Otherwise  the  adverse  party  may  forthwith 
cause  proceedings  to  be  had  before  the  master  at  the  cost  of 
the  party  who  procured  the  reference. ^  Tlie  master  need  not 
report  evidence  unless  required  by  either  party .^  It  is  the 
master's  duty,  as  soon  as  he  reasonably  can  after  the  matter 
referred  to  him  is  brought  before  him,  to  assign  a  time  and 
place  for  proceeding,  and  to  give  due  notice  thereof  to  each 
of  the  parties,  or  their  solicitors.*  Notice  may  be  served  by 
mail  or  otherwise.^    It  need  not  be  served  by  the  marshal.^ 

By  the  old  English  practice  parties  interested  in  the  subject- 
matter  of  a  reference  were  l)rought  before  the  court  by  the 
service  of  a  warrant  in  tiie  State  courts  of  New  York  now  called 
a  summons.  This  was  a  memorandum,  upon  a  slip  of  paper 
entitled  in  the  cause,  and  signed  by  the  master,  appointing  a  day 
and  hour  for  all  parties  concerned  to  attend  him  on  the  matter 
of  the  reference.'''  It  was  in  substantially  the  following  form: 
"By  virtue  of  an  order  of  reference,  I  do  appoint  to  consider 

the  matters  thereby  to  me  referred,  on  next,  at  of 

the  clock,  in  the  noon,  at  my  Chambers  in  ,  at  which 

time  and  place  all  parties  concerned  are  to  attend.     [Signature.] 

Dated  the  day  of ,  ."  ^    It  is  the  better  practice, 

however,  for  the  warrant  to  contain  a  statement  of  the  nature 
of  the  reference.*  Upon  a  reference  for  an  accounting  it  is 
customary  for  tlie  master  to  include  in  his  warrant  directions 
as  to  the  matter  to  be  included  in  the  account.  In  a  proper 
case  the  warrant  may  be  quashed,**'  or  some  of  the  directions  be 
stricken  therefrom  by  the  court.** 

§386.     lEq.  Eule  59.  8  Ihid. 

2  Eq.  Rule  59.  ^  Manhattan    Co.    v.    Evertson,    4 

3  Union    S.    R.    v.    Mathiesson,    .3       Paige   (N.   Y.)    276. 

Cliff.  146,  149.     See  Kerosene  L.  H.  10  Beekwith      v.     Malleable     Iron 

Co.   V.  Fisher,   1   Fed.   91.  Range  Co.,   195  Fed.   291,  order  set 

4  Eq.  Rule  60.  aside  upon  application  from  mandn- 

5  Kerosene  L.  H.  Co.  v.  Fisher,  1  miis.      Fc   Reckwith,    C.    C.    A.,   201 
Fed.   91.  Fed.    518;    Ee   Beekwith,   C.   C.    A., 

eihid.  20.3  Fed.   45. 

TDaniell's   Ch.    Pr.,    eh.    xxvi.  11  Beekwith     v.     Malleable      Iron 


1876  PROCEEDINGS  IN  A  MASTER'S  OFFICE  [§  387 

This  warrant  is  often  called  a  ' '  summons. ' '  ^^  There  was 
required  to  be  at  least  one  clear  day  between  the  day  of  issuing 
the  warrant  and  the  day  appointed  by  it  for  the  attendance 
of  the  parties  thereon. ^^  The  warrant  was  obtained  from  the 
master's  clerk  by  the  solicitor  applying  for  it;  and  the  latter 
underwrote  a  memorandum  expressing  its  object,  and  saw  that 
due  service  of  it  was  made.^*  Whenever  a  document  of  any 
kind  Avas  left  at  the  master's  office  by  the  solicitor  of  either 
of  the  parties,  he  usually  took  out  a  warrant,  which  he  under- 
wrote, "on  leaving  the,"  &q.^^  This  was  termed  a  "warrant 
on  leaving,"  and  was  served  in  the  usual  manner,  but  was 
considered  a  mere  formal  notice,  to'aiford  the  opposite  party 
an  opportunity  of  obtaining  a  copy  of  the  document  left  that 
he  might  either  admit  or  contest  the  circumstances  there  stated, 
as  he  might  be  advised. ^^  A  certitied  copy  of  the  decree  and 
opinion  of  the  court  may  stand  as  the  commission  to  the  master.^''' 

§  387.  Parties  entitled  to  attend  a  reference  before  a  master. 
The  general  rule  appears  to  be,  that  all  parties  beneficially 
interested,  either  in  the  estate  or  in  the  fund  or  matter  in  ques- 
tion, are  entitled  to  attend  before  the  master  on  all  those  pro- 
ceedings which  may  affect  their  interests,  or  increase  or  diminish 
their  proportion  in  the  fund.^  The  only  exception  to  this  rule 
is  said  to  be  the  case  of  a  reference  to  a  master  of  the  title  to 
an  estate  purchased  under  a  decree,  Avhen  the  vendor's  solicitor 
only  has  the  right  to  appear  before  the  master  on  the  inquiry.'^ 
An  executor,  as  the  legal  representative  of  his  testator,  is  en- 
titled to  attend  on  all  proceedings  relating  to  the  charges  of 
creditors  seeking  payment  out  of  the  personal  estate ;  but  after 
there  has  been  a  report  of  debts,  if  all  the  persons  interested 
in  the  personal  estate  are  before  the  court,  the  executor  is  only 
entitled  to  attend  on  those  proceedings  in  which  he  is  per- 
sonally   interested   as    an    accounting   party.^      Trustees   were 

Range  Co.,  207  Fed.  848;   see  infra,  Evertson,   4  Paige    (N.  Y.)   276. 

^  3g9j^  17  Bay   State  Gas   Co.   v.   Rogers, 

'    12  Ibid.  147  Fed.   557. 

13 1  Newland 's  Ch.  Pr.   324.     See  §387.     1  Daniell's     Ch.     Pr.,     ch. 

Bernie  v.  Vandever,   16  Ark.  616.  xxvi.      See   Johnson   v.   Waters,   111 

14  Daniell's   Ch.   Pr.,   ch.   xxvi.  U.   S.  640,  28  L.  ed.  547. 

16  jbid  2  Daniell  's  Ch.  Pr.,  ch.  xxvi. 

16  Ibid.      See    Manhattan    Co.    v.  8  Ibid. 


s:^87] 


I'AKTIK.S   1;NTITLKI)   TO   ATTEND   A    HKFEKKXCE 


1877 


forineiiy  not  allowed  (except  in  i)roeeedings  earried  on  by 
themselves)  to  attend  Ijciore  the  master  incases  Avhen-  all  the 
beneficiaries  were  before  the  court;  but  if  there  were  any  per- 
sons in  esse,  or  who  miglit  "come  into  esse,''  who  mi«rht  become 
interested  aiul  whose  interests  were  only  represented  by  the 
trustees,  and  were  not  too  remote,  the  trustees  were  entitled  to 
attend  tlie  proceedings  affecting  those  interests.*  The  rule  that 
all  parties  interested  in  the  result  are  entitled  to  attend  before 
the  master  applies  not  only  to  those  who  are  parties  to  the 
record,  but  to  those  who  are  "quasi-parties,"  by  having  come 
in  under  the  decree  and  established  a  claim.s 

In  a  suit  foi-  the  distribution  of  a  fund,  m-  creditors'  suit, 
it  is  the  usual  practice  for  the  court  to  make  an  ordei-  directing 
that  all  parties  interested  present  their  claims  within  a  time 
prescribed  in  the  order  or  by  the  master;  and  that  the  master 
publish  a  notice  to  tliat  effect  in  certain  newspapers.^  Such  an 
order  does  not  ai)ply  to  a  person  who  claims  the  title  to  specific 
property,  such  as  a  trust  fund,  of  whidi  a  receiver  has  pos- 
session,' nor  to  one  who  has  a  prior  lien  which  is  recognized 
at  common  law ;  ^  l)ut  an  order  may  be  made  limiting  the  time 
for  the  presentalion  of  claims  for  a  preference.^  After  the  ex- 
piration of  the  time  thus  limited,  any  creditor  or  other  person 
interested  in  the  fund  may  come  in  and  prove  his  claim  at  any 
time  before  the  final  distribution  of  the  fund,  even,  it  seems, 
although  the  order  for  an  advertisement  has  provided  to  the 
contrary,^"  although  an  order  fi-om  the  court  authorizing  such 


4  Ibid. 
6  Ibid. 

6  Continental  Tr.  Co.  v.  Toledo, 
St.  L.  &  K.  C.  R.  Co.,  82  Fed.  642, 
646.  For  an  order  directing  a  bal- 
ance to  be  held  ten  years,  in  order 
to  meet  unproved  claims,  see  Fow- 
ler V.  Jarvis  Conklin  Co.,  118  Fed. 
1022. 

7  N.  Y.  Security  &  Tr.  Co.  v.  Lom- 
bard I.  Co.,  75  Fed.  172. 

8  Trust  Co.  of  America  v.  Nor- 
folk &  S.  Ry.  Co.,  183  Fed.  803. 

9  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  200  Fed.  312,  310, 
holding   that   typical   claims   of   this 

Fed.  Prac.  Vol.  11—48 


character  upon  ex  parte  application 
should  be  sent  to  the  master  for  de- 
termination as  to  their  status;  and 
that  after  a  determination  that  one 
claim  of  a  certain  class  was  en- 
titled to  a  |)reforence.  a  general 
order  should  be  made  requiring  all 
persons  with  claims  of  a  similar 
character  to  ]ir(>sent  them  within  a 
s))ecified  time.  See  s.  C,  Pennsyl- 
vania Steel  Co.  V.  N.  Y.  City  Ry. 
Co.,   187  Fed.   287;   supra,  §305. 

10  Harrison  v.  Kirk,  House  of 
Lords  1904,  1.  Contra,  Be  Ennis, 
C.  C.  A.,  198  Fed.  381,  a  case  in 
bankruptcy,     where     there     was     no 


1878 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§388 


belated  proofs  is  usually  required. ^^  An  infant  will  always 
be  allowed  indulgence  in  this  respect. ^^  In  case  a  partial  but 
not  a  complete  distribution  of  the  funds  has  then  been  made, 
in  bankruptcy  at  least,  he  can  only  share  in  the  subsequent 
dividends. ^^  After  distribution  a  person  who  has  thus  failed 
to  prove  his  claim  before  the  master  may  file  a  bill  against 
the  persons  between  whom  the  funds  have  been  distributed  to 
compel  them  to  refund  his  pro  rata  share,  but  he  cannot  sue 
the  master  or  receiver.^*  When  the  claimants  are  dilatory,  the 
master  may  be  directed  to  require  them  to  present  their  proofs 
within  a  time  to  be  fixed  hj  him,  and  if  they  fail  so  to  do  to 
disallow  the  same  for  lack  of  proof. ^^ 

A  party  who  has  appeared,  but  allowed  a  decree  to  be  taken 
against  him  by  default  for  want  of  an  answer,  is,  it  seems, 
entitled  to  notice  of  the  proceedings  against  him  under  the 
decree  in  the  master's  office ;^^  but  cannot  appear  upon  such 
notice  before  such  master  without  previously  obtaining  an  order 
for  that  purpose,  which  is  usually  only  granted  upon  terms.^''' 
The  proper  course  to  test  a  party's  right  to  attend  before  a 
master  is,  after  the  latter 's  refusal,  to  apply  to  the  court  by 
petition  for  an  order  permitting  the  party  to  attend  before 
him.^^  The  court  may  require  the  claimant  of  a  share  in  the 
fund  to  contribute  to  the  expense  of  the  suit  before  he  proves 
his  claim, ^^  even  if  he  is  entitled  to  a  preference.^® 

§  388.  Proceedings  before  a  master.  In  general.  The  rules 
give  the  master  authority  to  regulate  all  the  proceedings  upon 


proof  that  the  claimant  did  not 
have  actual  knowledge  of  the  no- 
tice within  the  period  of  limitation. 
It  was  held  that  such  an  order  will 
not  he  presumed  to  apply  to  and  bar 
a  claimant  whose  claim  is  then  in 
suit  before  the  same  court.  South- 
ern Ry.  Co.  V.  Townsend,  C.  C.  A., 
161  Fed.  .310. 

11  Wilder  v.  Keeler,  3  Paige  (N. 
Y.)  164,  23  Am.  Dec.  781;  Pennsyl- 
vania Steel  Co.  V.  New  York  City 
Ry.  Co.,  201  Fed.  781. 

12  Park  V.  N.  Y.,  L.  E.  &  W.  R. 
R.,  140  Fed.  799. 

13  Me  Stein,  94  Fed.  124. 


14  David  V.  Frowd,  1  M.  &  K.  200, 
Gillespie  v.  Alexander,  3  Russ.  130 ; 
Sawyer  v.  Birchmore,  1  Keen,  391; 
Daniell's  Ch.  Pr.  (1st  Am.  ed.) 
1403. 

16  Pennsylvania  Steel  Co.  v.  New 
York  City  Ry.  Co.,  175  Fed.  811. 
See  supra,   §  320,  and  infra,  §  394. 

16  King  V.  Bryant,  3  M.  &  C.  191; 
Daniell's  Ch.  Pr.,  ch.  xxvi. 

17  Heyn  v.  Heyn,  Jacob,  49 ;  Dan- 
iell  's  Ch.  Pr.,  eh.  xxvi. 

18  Daniell's  Ch.  Pr.,  ch.  xxvi. 

19  Chick  v.  Northwestern  Shoe 
Co.,  118  Fed.   933. 

20  Ibid. 


§388] 


PROCEEDIKOS  BEFORE   A   MASTER  IN  GENERAL 


1871) 


a  reference  to  him.^  In  case  of  an  abnse  of  his  discretion  by 
a  master,  any  party  aggrieved  may  apply  to  the  court  for  an 
order,  requiring  the  master  to  act  properly  ;2  but  such  appli- 
cations are  not  encouraged,^  and  are  only  granted  in  extraordi- 
nary cases.*  If  any  party  fail  to  appear  at  the  appointed  time 
and  place,  the  master  may  either  proceed  ex  parte,  or,  in  his  dis- 
cretion, may  adjourn  the  proceedings.*  In  the  latter  case,  ho 
should  give  notice  of  the  adjournment  to  the  party  who  failed 
to  appear,  or  to  his  solicitor.^  Where  a  claimant  before  a  master 
dies  pending  a  hearing,  no  report  can  be  made  upon  the  claim 
until  an  executor  or  administrator  has  been  appointed."'' 

The  master  has  the  power  to  speed  the  cause.*  It  is  the 
master's  duty  to  proceed  in  the  reference  with  all  reasonable 
diligence  and  with  the  least  practicable  delay.^  Otherwise, 
either  party  may  apply  to  the  court,  or  a  judge  thereof,  for  an 
order  requiring  the  master  to  speed  the  proceedings  and  to 
make  his  report,  and  to  certify  to  the  court  or  judge  the  reasons 
for  any  delay.^® 

The  master  has  no  power  to  allow  an  amendment  by  the 
pleadings,!!  nor  to  grant  an  injunction. ^^ 

There  is  no  necessity  for  the  master's  taking  any  oa1li,  \inless 
the  order  of  reference  especially  requires  him  to  do  so.^^ 

By  the  English  practice,  the  time  for  a  single  hearing  before 
a  master  did  not  usually  exceed  one  hour,  unless  the  master 
continued  the  hearing  longer,  when  an  increased  fee  might,  it 
seems,  be  charged. !*  It  was  the  duly  of  the  master  or  his  clerk 
to  mark  in  the  master's  book  tlio  names  of  tlu^  solicitors  who 


S.-^SS.     lEq.   Rule   62. 

ZDaniell's  Ch.  Pr.,  eh.  xxvi;  Bate 
Rof.  Co.  V.  Gillette,  28  Fed.  67.3; 
Eq.  Eiile  60.  See  Be  Thomas,  .3.5 
Fed.  .387,  340. 

SLull  V.  Clark,  20  Fed.  4.54;  Woo- 
ster  V.  Gumbirnner,  20  Fed.  167; 
Bate  Ref.  Co.  v.  Gillette,  28  Fed. 
673. 

4  Lull  V.  Clark,  20  Fed.  545;  Woo- 
ster  V.  Gumbiniiier,  20  Fed.  167; 
Bate  Ref.  Co.  v.  Gillette,  28  Fed. 
673. 

6Eq.  Rule  60. 

6Kq.  Rule  60. 


7Bibber-Whito  Co.  v.  White  Riv- 
er Valley  El.  R.  Co.,  175  Fed.  470. 

8  Rollniaii  Mfg.  Co.  v.  Universal 
Hardware  Works,  229  Fed.  579. 

9  Bit)l)er-White  Co.  v.  White  Riv- 
er Valley  El.  R.  Co.,  175  Fed.  470, 
where  a  delay  of  six  years  before 
the  eomjdetion  of  the  reference  was 
hold  to  be  improper. 

10  Eq.  Rule  60. 

11  Shapiro  v.  Engel.  257  Fed.  854. 

12  Be  Gordon,  250  Fed.  798. 

13  Tliomi)son  v.  Smith.  2  Bond  20. 

14  Daniel] 's  Ch.  Pr.,  eh.  xxvi. 


1880 


PROCEEDINGS  IN  A  MASTER'S  OFflCE 


[§389 


attended,  and  no  other  attendance  than  those  so  marked  was 
allowed  in  taxing  costs. ^^ 

§388a.  Instructions  to  masters.  When  difficult  questions 
of  law  arise  upon  a  reference,  the  decision  upon  which  may 
admit  or  exclude  a  large  amount  of  evidence,  the  party  ag- 
grieved  by  the  master's  rulings  may  apply  to  the  court  for 
instructions  to  the  master  upon  the  subject.^  These  applications 
are  not  encouraged,^  and  are  only  granted  in  extraordinary 
cases,^  except  when  evidence  is  improperly  excluded  when  in  the 
Second  Circuit  they  are  encouraged.*  Sucli  motions  are  more 
frequently  granted  upon  accountings  than  in  other  eases.^ 
Where  the  master  upon  an  accounting  limits  the  scope  of  the 
inquiry  it  is  proper  immediately  to  apply  to  the  court  for  in- 
structions to  him.^ 

§389.  Proceedings  upon  accountings.  A  reference  to  a 
master  to  take  an  account  will  not  be  directed  unless  the  com- 
plainant affords  some  proof  tending  to  show  that  the  account- 
ing party  has  collected  something  as  to  which  an  account  should 
be  made.i     The  cases  in  which  bills  for  accountings  can  be  sus- 


ISDaniell's  Ch.  Pr.,  eh.  xxvi. 

§  388a.  1  Cottinghani  v.  Propfe, 
112  Ted.  1016;  Walker  Patent 
Pivoteil  Ben  Co.  v.  Miller,  146  Fed. 
249,  252;  supra,  §388;  infra,  §391. 
But  see  Howe  v.  Scott,  87  Fed.  220. 

2  Lull  V.  Clark,  20  Fed.  454; 
Wooster  v.  Gumbirnner,  20  Fed. 
167;  Bate  Ref.  Co.  v.  Gillette,  28 
Fed.  673. 

8  Ibid. 

4  Celluloid  Mfg.  Co.  v.  Cellonite 
Mfg.  Co.,  40  Fed.  476,  478,  //(//(/, 
§393. 

6  Pennsylvania  Steel  Co.  v.  N.  Y. 
City  Ry.  Co.,  182  Fed.  155,  159,  La- 
combe,  J.:  "This  accounting  may 
be  a  long,  difficult  and  expensive 
operation,  and  it  would  be  most  un- 
fortunate if  the  special  master 
should  conduct  it  to  a  conclusion 
upon  one  theory  only,  to  have  his 
conclusion  reversed  by  the  court  of 
last  resort,  leaving   the   work  to   be 


done  all  over  again  on  some  other 
theoiy.  This  might  be  avoided  by 
an  application  to  this  court  to  in- 
struct the  special  master  that  in 
stating  these  accounts  he  should 
consider  the  lease  as  terminating 
on  such  a  date,  or  as  continuing  in 
force  till  such  another  date  or  to 
give  him  any  further  instructions 
which  may  be  thought  necessary. 
That  application  may  be  made  on 
any  part  of  the  record  which  may 
V)e  material  and  on  further  evidence, 
if  necessary.  It  surely  ought  not 
to  take  long  to  submit  this  ques- 
tion, and  when  it  is  finally  dis- 
posed of  the  accounting  wiU  be 
greatly  simplified  and  can  be  much 
sooner  disposed  of. ' ' 

6  Walker  Patent  Pivoted  Bin.  Co. 
v.   Miller,   146  Fed.  249. 

§  389.  1  Columbian  Equipment 
Co.  v.  Mercantile  Tr.  &  Dep.  Co., 
C.    C.    A.,    113   Fed.   23;    Ludingtou 


§  889 J  PKOCEEDIN'GS   UPON  ACCOUNTINGS  1881 

tained  are  previousl}'  discussed. ^  "A  reference  will  not  be 
made  to  state  an  account  without  some  evidence  to  sliow  the 
necessity  for  tlie  accounting. "  ^  In  a  suit,  because  of  the 
infringement  of  a  patent,^  trade  inark,^  or  for  unfair  competi- 
tion ^  reference  will  not  be  ordered  when  it  appears  that  there 
should  be  no  substantial  recovery. 

All  parties  who  arc  re(piired  to  account  before  a  master  nuist 
bring  in  their  accounts  in  the  form  of  debtor  and  creditor.' 
Should  a  party  fail  to  do  so,  the  master  nmy  make  an  order 
requiring  him  to  furnish  such  an  account. ^  The  order  should 
not  be  granted  till  the  tirst  hearing  of  the  reference.^  The 
order  must  be  served  personally  with  a  copy  of  this  order  and 
a  notice  of  the  day  to  wiiich  the  hearing  is  adjourned. ^^  Service 
may  be  made  by  any  disinterested  person. ^^  If  the  defendant 
then  fails  to  appear  and  account,  he  is  in  contempt. ^^  Upon 
a  decree  for  an  accounting  by  defendant,  of  profits  made  by 
his  infringement  of  a  patent,  it  seems  that  llie  c()m|)lainant 
cannot  be  required  by  the  master  to  bring  in  an  account,  if 
the  court  has  not  so  directed. ^^  Where  fire  in.surance  companies 
sued  in  equity  to  restrain  the  prosecution  of  several  actions  at 
law  on  policies  covering  the  same  property  praying  a  cancella- 
tion of  the  ])olicies  as  fraudulent,  and  in  the  altei'iuitive  that, 
in  case  they  should  be  found  to  be  valid,  the  damage  su.stained 
be  apportioned  and  that  an  accounting  be  then  directed  for 
that  purpose;  it  was  held  that  the  court  had  power  to  render 
judgment  against  them  upon  such  accounting  and  tiuit  tiie  costs 
of  the  actions  at   law  might  be  therein   iiirUuled;^^  hut    where. 

Novelty    Co.    v.    Leonard,   C.    C.    A.,  6  ShreddeJ  Wheat  Co.   v.   Humph- 

127  Fed.  155,  157,  62  C.  C.  A.  269,  rey  Cornell  Co.,  244  Fed.  o08. 

a    trademark   ease ;    Keystone    Type  7  Eq.   Rule   6.1 

Foundry   v.   Portland  Pub.   Co.,   180  8  Kerosene   L.  H.  Co.  v.  Fislier.  1 

Fed.  .SOI,  a  trademark  ease;  Perkins  Fed.  91. 

El.    Switch    Mfg.    Co.    v.    Yost    El.  9  Ibid. 

Mfg.  Co.,  189  Fed.  625.  10  I}, id. 

2  Supra,   §  151d.  11  Ibid. 

3  Columbian     Equipment     Co.     v.  18  Ibid. 

Mercantile    Tr.    &    Dep.    Co.,    C.    C.  13  Goss     Printing     Press     Co.     v. 

A.,   113  Fed.  2;{,  25.  Scott,   148  Fed.  .39.^. 

4  Perkins   El.   Switch   Mfg.   Co.  v.  14  Spring     Garden     Ins.     Co.      v. 
Yost    El.    Mfg.    Co.,    189    Fed.    625.  Amusement  Syndicate  Co.,  C.  C.  A., 

SGallet  V.   R.  &   G.   Soap   &   Sup-       178  Fed.   519. 
ply  Co.,  C.  C.   A.,  254  Fed.  802. 


1882  PROCEEDINGS  IN  A  MASTER'S  OFFICE  [§  389 

upon  a  receivers'  accounting,  a  bank  intervened  to  prove  its 
claim  to  a  preference  for  money  borrowed  by  the  receivers,  it 
was  held  to  be  error  for  the  master,  when  disallowing  its  claim 
for  a  preference,  without  pleading  or  process  against  the  bank 
or  notice  of  an  application  to  the  master  for  such  a  recommen- 
dation, to  report  that  it  should  return  payments  made  to  it 
by  the  receivers.^^  The  accounts  should  contain  items  of  both 
debits  and  credits  and  should  be  verified  by  affidavit.^^  If  any 
of  the  other  parties  is  dissatisfied  with  the  accounts  rendered, 
he  maj^  examine  the  accounting  party  either  orally  or  by  inter- 
rogatories or  by  deposition,  as  the  master  directs. ^'^  At  the 
end  of  a  specified  time  fixed  by  the  master,  the  complainant 
should  file  what  is  termed  the  charge,  or  surcharge.  This  it 
has  been  said  should  contain  a  transcript  of  all  the  debit  items 
of  the  account  as  filed  together  with  the  added  items  or  in- 
creases in  items,  with  which  it  has  been  said  he  seeks  to  charge 
the  defendant,^^  it  should  also  contain  a  statement  of  the  items 
of  credits  which  he  wishes  disallowed. ^^  The  more  usual  modern 
practice,  however,  is  for  the  charge  merely  to  contain  the  items 
which  the  complainant  wi.shes  added  or  increased  or  disallowed 
and  not  to  transcribe  all  the  debit  items  of  the  account  as 
originally  filed.  When  the  charge  has  been  filed  with  the  master, 
the  case  proceeds  upon  the  examination  of  the  defendant  and 
•the  taking  of  other  testimony  until  all  evidence  concerning 
the  items  in  the  charge  has  been  completed.  Thereupon  it  has 
been  said,  that  the  defendant  should  file  his  "discharge,"  con- 
sisting of  all  the  credit  items  taken  from  the  account  and  sep- 
arated by  his  vouchers  for  amounts  over  twenty  dollars  and 
testimony  then  taken  on  the  items  of  the  discharge,  and  upon 
the  completion  thereof  the  master  should  state  the  account.^** 
The  burden  of  proof  is  upon  the  complainant  as  to  any  items 
of  debits  which  are  surcharged,  that  is  not  admitted,  in  the  ac- 

15  People 's  Savings  Bank  &  Trust  18  Ommen    v.    Talcott,    175    Fed. 
Co.   V.    Eogers,   C.    C.    A.,    177    Fed.       261,   267. 

386.  19  Eemsen    v.    Eemsen,    2    Johns. 

16  Ommen  v.  Taleott,  175  Fed.  261,       Ch.   (N.  Y.)   495,  501. 

267.  20  Ommen    v.     Talcott,    175    Fed. 

17  Eq.    Rule    63    re-enacting    Eq.       261,    267.      But    see    Hoffmen's   Ch. 
Rule   79   of   1842.  Pr.  I.  522-525. 


§3891 


PROCEEDINGS   II'OX    ACCOUNTINGS 


1883 


count  as  filed  ^i  and  upon  the  party  accounting  as  to  all  the 
credits  clainK'd,^^  which  are  falsified,  tliat  is  disputed  although, 
in  New  York  at  least,  his  affidavit  annexed  to  the  account  is 
sufficient  to  substantiate  a  receipt  for  an  account  not  in  excess 
of  twenty  dollars,^^  when  the  creditor  swears  positively  to  the 
fact  of  payment  and  states  to  whom  paid  and  for  what  and 
when ;  but  the  items  so  established  cannot  exceed  five  hundred 
dollars,  and  the  defendant  cannot,  by  way  of  charge,  charge 
another  person  in  this  manner.^* 

The  question  of  defendant's  liability  is  concluded  by  the  de- 
cree and  cannot  be  reopened  before  the  master.^s  The  com- 
plainant cannot  before  the  master  take  a  position  inconsistent 
with  the  allegations  or  case  made  by  his  bill.^^ 

Upon  an  accounting  by  a  trustee  the  burden  rests  upon  him 
to  show  how  much  he  has  received  and  what  he  has  disbursed.^' 
The  fact  that  he  has  rendered  to  the  beneficiary  from  time  to 
time  statements  of  accounts  which  were  retained  without  objec- 
tion, does  not  change  this  rule.^s  Where  it  has  been  found 
that  the  transfer  of  assess  to  a  trustee  was  fraudulent,  the  burden 
is  upon  him  to  show  that  he  made  no  profit  therefrom.^s  Where 
a  tenant  in  common  of  a  mining  claim  had  failed  to  keep  an 
account  of  the  proceeds  of  ore  which  he  had  taken  and  sold. 
all  doubtful  questions  were  resolved  against  him  upon  an  ac- 
counting.^"  He  was  allowed  the  reasonable  expense  of  mining 
and  selling  the  ore,  although  he  had  kept  no  accounts,  caved 
the  slopes  and  made  it  difficult  and  expensive  to  ascertain  what 
he  had  taken  and  realized."     But  not  the  cost  of  cleaning  and 


210mmen  v.  Taleott,  175  Fed. 
261,  267;  MpManus  v.  Sawyer,  231 
Fed.  231. 

22  0nimen  v.  Taleott,  175  Fed. 
261,  267;  McManus  v.  Sawyer,  231 
Fed.  231. 

23  Remsen  v.  Remsen,  2  Johns.  Ch. 
(N.  Y.)  495,  501. 

24  Remsen  v.  Remsen,  2  Johns. 
Ch.    (N.  Y.)   495,  501. 

26  De  Long  Hook  and  I^ye  Co.  v. 
Francis  Hook  &  Eye  &  Fastener  Co., 
159  Fed.  292. 

26  Lorain   Steel  Co.   v.   New  York 


Switch  &  Crossing  Co.,  C.  C.  A.,  184 
Fed.  301. 

27  Marvin  v.  Brooks,  94  N.  Y. 
71;  Potomac  Insurance  Co.  v. 
Kelly,  173  App.  Div.  N.  Y.  791. 

28  Potomac  Insurance  Co.  v. 
Kelly,  173  App.  Div.  N.  Y.  791, 
sec  Lovewell  v.  Schoolfield,  217  Fed. 
689. 

29  Balfe   V.   Tilton,   235   Fed.   448. 

30  Silver  King  Coalition  Mines 
Co.  V.  Conkling  Mining  Co.,  C.  C. 
A.,  255  Fed.  740. 

31  Ibid.,  s.  C,  C.  C.  A.,  204  Fed. 
166. 


1884 


PROCEEDINGS  IX  A  MASTER  S  OFFICE 


[§389 


extending  a  tunnel  used  for  this  and  other  purposes.'^  He  was 
not  charged  with  compound  interest. ^^  When  ore  had  been 
taken  by  a  trespasser  under  an  honest  belief  of  ownership,  he 
was  allowed  the  reasonable  cost  of  mining  and  selling  the  ore, 
or  the  actual  cost  if  less  than  the  reasonable  cost,  but  not  charges 
for  freight  to  a  mill,  which  were  greater  than  the  complainant 
would  have  paid  to  transport  the  ores  to  its  own  mill.^*  He  was 
not  charged  with  the  value  of  the  ore  caused  by  a  subsequent 
rise  in  the  market ;  ^^  nor  with  the  value  of  mill  tailings  had  they 
been  saved  till  the  time  of  the  accounting,  when,  at  the  time  they 
were  taken,  they  had  no  market  value. ^^  Such  a  trespasser  was 
allowed  to  remove  his  machinery  and  tools  with  a  credit  for  the 
value  of  permanent  and  useful  improvements  made.^' 

Applications  to  the  court  for  instructions  to  the"  master  are 
more  favorabl}'  considered  when  they  concern  intricate  account- 
ings than  in  other  cases.^®  Where  the  master  upon  an  accounting 
makes  rulings  limiting  the  scope  of  the  inquiry,  it  is  proper 
to  apply  immediately  to  the  court  for  instructions.^^  Trifling 
errors  in  a  master's  statement  of  an  account  will  be  disre- 
garded.*°  Where  upon  an  accounting  the  court  sustained  an 
exception  b}^  one  of  several  persons  having  a  common  interest 
in  the  fund,  and  thus  surcharged  the  account,  it  was  held  by 
the  courts  of  two  States  that  all  persons  interested  took  the 
benefit  of  the  exception  and  of  the  increase  of  the  fund,  and  that 
the  decree  should  not  merely  add  to  the  share  of  the  exceptor 
his  proportion  of  the  amount  surcharged.*^ 

Where  the  master  worked  out  a  ditficult  apportionment  any 
error  as  to  the  details  should  be  pointed  out,  in  the  exceptions 


38  Ibid. 

83  s.  c,  C.  C.  A.,  204  Fed.  166. 

34  Clarke-Montana  E.  Co.  v.  Butte 
&  Superior  Copper  Co.,  233  Fed. 
547. 

36  Ibid. 

36  Clark-Montana  R.  Co.  v.  Butte 
&  Superior  Copper  Co.,  233  Fed. 
547. 

37  U.  S.  V.  Midway  Northern  Oil 
Co.,  232  Fed.  620;  but  see  Both- 
well  Co.  V.  Bice,  C.  C.  A.,  247  Fed. 
60. 


38  Thompson  v.  Smith,  2  Bond 
320,  supra,   §  388a. 

39  Ibid. 

40  Taylor  v.  Robertson,  27  Fed. 
537. 

41  Martin's  Appeal,  33  Pa.  St. 
395;  Landis  v.  Scott,  32  Pa.  St. 
495;  Estate  of  Chalmers,  N.  Y,  L, 
J.  of  April  8,  1897;  People  v.  Am. 
Loan  &  Tr.  Co.,  177  N.  Y.  467.  Cf. 
Union  Tr.  Co.  v.  Trumbell,  137  111. 
146,  27   N.   E.   Rep.   24. 


$389a] 


ACCOLNTlNG.s    IN     PATENT    CASES 


1  SS.') 


to  his  report,  and  in  the  assignments  of  error  made  to  the  de- 
cree.*^ Every  reasonable  presumption  is  in  favor  of  the  mas- 
ter's findings  upon  conflieting  testimony;*'  but  it  has  been  said 
in  such  eases  the  court  is  not  bound  by  the  rule  that  his  findings 
have  the  weight  of  a  special  verdict.** 

§  389a.  Accountings  of  profits  in  patent  cases.  The  uast-s  in 
which  bills  in  eiiuity  may  be  tiled  to  procure  an  accounting  by 
the  infringer  of  a  patent  have  been  previou.sly  explained.^  When 
it  appears  that  the  profits  were  only  n(miinal  a  reference  in  a 
patent  case  for  an  accounting  thereof,  will  not  be  directed.* 
The  master  has  power  to  determine  what  infringements  have 
been  committed  up  to  the  time  of  his  report  and  to  award  profits 
and  damages  as  the  case  may  require  until  that  time.'  The 
question  whether  there  has  been  an  infringement  and  the  gen- 
eral scope  of  the  patent  cannot  be  considered  by  the  master 
since  they  have  been  decided  by  the  decree.*  It  is  his  duty 
to  determine  the  extent  of  the  infringement  and  the  particular 
infringing  devices  made  or  used  by  the  defendant.^  The  de- 
fendant may,  however,  dispute  the  que.stion  whether  he  has 
committed  any  infringement  subsequent  to  the  decree.^ 

Such  accountings  are  regulated  by  Etjuity  Rule  63  as  fol- 
lows: "All  parties  accounting  before  a  master  shall  bring  in 
their  respective  accounts  in  the  form  of  debtor  and  creditor; 
and  any  of  the  other  parties  who  shall  not  be  satisfieil  with 
the  account  so  brought  in  shall  be  at  liberty  to  examine  the 
accounting  party  viva  voce,  or  upon  interrogatories,  as  the 
master  shall  direct.'"^     The  accounting  party,  however,  should 


42  Oehring  v.  Fox  Typewriter  Co., 
C.  C.  A.,  251  Fed.  584. 

43  Continuous  Glass  Press  Co.  v. 
Schmertz  Wire  Glass  Co.,  219  Fed. 
199. 

44  Westinghouse  Electric  &  Mfg. 
Co.  V.  Wagner  Electric  Mfg.  Co., 
248  Fed.  508,  see  infra,  ii  39.3. 
Racine  Engine  &  M.  Mfg.  Co.,  C. 
C.  A.,  2.S4  Fed.  876;  Underwood 
Typewriter  Co.  v.  Fox  Typewriter 
Co.,  C.  C.   A.,  220  Fed.  880. 

§  389a.     1  Supra,    §  146. 


2  Perkins  El.  Switch  Mfg.  Co.  v. 
Yost   El.  Mfg.   Co.,   189  Fed.  625. 

3  Stebler  v.  Riverside  Heights 
Orange  Growers'  Ass'n,  211  Fed. 
985. 

4Metalli.-  Rublier  Tire  Co.  v. 
Hartford  Rubber  Works  Co.,  245 
Fed.  861,  862. 

5  Gordon  v.  Turco-Halvah  Co..  C. 
C.   A.,  247  Fed.  487. 

6  Fruniontum  Co.  v.  Lauhoff.  C. 
C.  A.,  216  Fed.  610. 

7  Ee  Beckwith,  C.  C.  A.,  201  Fed. 


1886 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§  389a 


not  be  required  to  specify  evidence  in  his  accounts  although 
he  may  be  subsequently  examined  concerning  them.*  ■  Such  have 
been  held  to  be  the  names  of  the  purchasers,  the  prices,  dis- 
counts, rates  and  rebates  allowed  each  purchaser,  the  profits 
and  costs  and  expenses  of  each  article  containing  the  infringe- 
ment and  the  items  of  cost  for  labor,  material,  and  other  mat- 
ters included  in  the  credits  claimed.^     AVhere,  after  a  decree 


579,  s.  c,  C.  C.  A.,  203  Fed.  45; 
Beckwith  v.  Malleable  Iron  Range 
Co.,  207  Ted.  845. 

8  Beckwith  v.  Malleable  Iron 
Range  Co.,  207  Fed.  848. 

9  Beckwith  v.  Malleable  Iron 
Range  Co.,  207  Fed.  848.  There  the 
court  struck  out  the  following  direc- 
tions in  the  master 's  warrant : 

"Second.  That  you  specify, 
giving  the  names  and  addresses  of 
the  persons  purchasing  said  infring- 
ing reservoirs,  also  date  of  the  pur- 
chase, the  number  purchased,  and 
the  size  and  complete  description  of 
the  range  with  reservoir  attached 
so  purchased. 

' '  Third.  That  you  indicate  for 
the  period  of  your  infringement  of 
said  patent,  the  selling  price  of  each 
of  said  ranges  and  also  of  each  of 
said  reservoirs,  together  with  the 
other  elements  of  claim  11  of  said 
patent,  and  the  discounts,  freights, 
and  rebates  or  credits  of  any  de- 
scription allowed  to  the  purchaser 
and  also  the  net  amount  of  money 
actually  received  by  you  for:  (a) 
Tlie   range;    (b)    the   reservoir. 

' '  Fourth.  That  during  the  pe- 
riod of  your  said  infringement  you 
indicate  and  itemize  the  manufac- 
turer's cost  of  the  range,  itemize 
the  costs  for  labor  and  cost  for  ma- 
terial, and  also  for  the  same  period 
that  you  itemize  the  manufacturer's 
cost  of  the  reservoirs,  the  contact 
plates,  and  all  attachments  used  in 
connection   therewith,   itemizing   the 


cost  for  material  and  the  cost  for 
labor. 

"Fifth.  That  you  indicate  the 
cost  and  expense  (for  the  period 
of  said  infringement)  of  selling 
said  ranges  with  infringement  res- 
ervoirs attached  down  to  the  time 
you  ceased  to  infringe. 

' '  Sixth.  That  you  indicate  the 
entire  profits  derived  by  you  from 
each  sale  of  said  ranges  with  said 
infringing  reservoirs  attached  as 
provided  in  said  decree: 

"Seventh.  That  you  indicate  the 
entire  profits  derived  from  the  sale 
of  ranges  with  reservoirs  attached 
on  account  of  the  utilization  of  the 
features  contained  in  the  letters 
patent  referred  to  in  the  decree  in 
this  case. 

"Eighth.  Also  specify  the  gains 
and  savings  made  by  you  during 
the  period  mentioned  in  said  de- 
cree, by  the  use  of  said  infringing 
reservoir  over  the  style  formerly 
used  by  you. 

"Ninth.  Also  specify  the  price 
at  which  you  sold  your  ranges  with- 
out reservoirs:  also  your  ranges 
with  reservoirs:  and  also  the  actual 
cost  to  you  of  said  ranges  without 
reservoir  and  the  actual  cost  to  you 
•  of  said  ranges  with  said  reservoir 
during  the  infringing  period  re- 
ferred to  in  said  decree. ' ' 

The  court  allowed  the  following 
matter  only  to  remain  in  the  direc- 
tions, that  the  defendant  be  re- 
quired:   to    render    a    sworn    state- 


§  389a  J 


ACCOUNTINGS    IN    PATENT   CASES 


1887 


for  an  accounting  of  infringements  of  a  patent,  it  was  claimed 
that  there  had  been  subsequent  infringements  of  devices  not 
mentioned  in  the  interlocutory  decree;  it  was  held  that  the 
proper  practice  was  to  set  up  such  new  infringements  by  sup- 
plemental bill  upon  the  disposition  of  which  the  order  of  ref- 
erence could  be  modified  as  reciuired,  rather  tlian  extend  the 
accounting  to  those  devices  without  any  prior  adjudication  upon 
the  same.io  Where  the  bill  alleged  the  marking  of  the  patented 
article  in  accordance  with  the  Revised  Statutes  and  notice  to 
defendant  of  the  infringement,  the  court  permitted  proof  of 
these  allegations  to  be  made  upon  the  accounting  after  an  inter- 
locutory decree,  in  order  to  carry  the  accounts  back  of  the  filing 
of  the  bill,  when  no  objection  founded  upon  the  omission  had 
been  raised  upon  the  hearing  and  no  proof  upon  the  point  had 
then  been  introduced  by  either  party.^i  AVhere  an  accounting  of 
profits  is  made  by  the  infringement  of  a  patent  or  copyright, 
the  infringer  is  not  entitled  to  deduct,  from  the  profits  made 
during  a  certain  term,  a  loss  subsequently  incurred  in  a  separate 
transaction.  Losses  concurrent  with  the  profits  and  directly 
resulting  from  the  particular  transactions  tliat  resulted  in  such 
profits  are  all  that  can  be  considered. ^^  where  the  infringe- 
ment was  a  play  and  the  defendant  had  made  its  contracts  by 
the  theatrical  season,  each  season  was  taken  as  a  unit  in  the 
computation,  and  the  defendant  was  disallowed  credits  against 
the  profits  of  one  season  for  losses  incurred  in  another.^^ 


ment  of  account,  in  writing  of  the 
number  of  infringing  devices  made, 
sold,  or  used,  the  details  of  sales, 
and  the  gains  and  profits  made 
thereon;  also  requiring  specifications 
in  such  account  these  further  items: 

"First.  The  whole  number  of 
ranges  made  by  you  with  reservoirs 
described  in  claim  11  of  the  patent 
to  complainant,  No.  787,  425,  and 
referred  to  in  said  decretal  order. ' ' 

"Tentli.  That  you  liavo  witli 
you  in  court  all  the  books  and 
vouchers  in  your  possession  on  whicli 
the  said  data  were  originally  en- 
tered together  with  all  books  and 
vouchers    in    your    possession    which 


show  the  cost  of  labor  and  ma- 
terials used  in  making  said  infring- 
ing reservoirs,  especially  all  day- 
books, journals,  ledger,  order  books, 
blotters  and  cashbooks  used  by  you 
(luring    said    infringing    period." 

10  Murray  v.  Orr  &  Lockett  Hard- 
ware Co.,  C.  C.  A.,  153  Fed.  369. 
But  see  Walker  Patent  Pivoted  Bin 
Co.  V.  Miller,  146  Fed.  249. 

11  Underwood  Typewriter  Co.  v. 
Klliott-Fisher  Co.,  171   Fed.   116. 

12  Canada  Bros.  v.  Michigan  Mal- 
lenlilo  Iron  Co.,  C.  C.  A.,  152  Fed. 
178;  Dam  v.  Kirk  La  Shelle  Co., 
189  Fed.  842. 

13  Dam  V.  Kirk  La  Shelle  Co.,  189 
Fed.    842. 


1888 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§389a 


The  account  is  not  limited  to  the  profits  of  such  infringements 
as  the  complainant  has  proved  at  the  hearing  before  the  account- 
ing was  directed.^* 

If  dissatisfied  with  the  account  the  complainant  is  entitled  to 
a  full  examination  of  the  accounting  party, ^^  and  the  production 
of  the  defendant's  books  which  relate  to  the  subject  of  the 
accounting.^^  The  latter  cannot  seal  parts  of  the  books  and 
upon  an  ex-parte  affidavit  that  there  was  no  sale  of  an  infring- 
ing article  made  during  the  time  to  which  these  relate  refuse  to 
permit  an  examination  thereof  until  the  plaintiff  has  proved 
such  sales  during  the  time;  but  he  may  cover  the  names  of  the 
consignees  and  the  prices  at  sales  until  it  is  shown  that  they 
relate  to  the  infringing  articles.^''^ 

The  infringer  is  a  wrong  doer  and  his  acts  are  torts.^'  Upon 
the  accounting  he  stands  in  the  position  of  a  trustee  ex  male- 

The  Statute  of  Limitations  which  is  applied  upon  such  ac- 
countings has  been  previously  considered.^" 

"Where,  after  a  decree  for  an  accounting  of  infringements  of 
a  patent  there  have  been  subsequent  infringements,  by  the 
use  of  devices,  not  mentioned  in  the  interlocutory  decree  and 
there  is  no  colorable  difference  betAveen  the  new  devices  and 
those  thus  mentioned ;  the  complainant  may  move  to  punish  the 
defendant  for  contempt  of  court,^^  or  he  may  prove  such  in- 
fringements before  the  master  without  further  proceedings.^^ 
Where  the  dilt'erence  is  colorable  the  proper  practice  is  to  set  up 
such  new  infringements  by  a  supplemental  bill,  upon  the  dis- 
position of  which  the  order  of  reference  can  be  modified  as 


14  Corrngated  Paper  Patents  Co. 
V.  Paper  Working  M.  Co.,  C.  C.  A., 
237  Fed.  380,  .390. 

16  Corrugated  Paper  Patents  Co. 
V.  Paper  Working  M.  Co.,  237  Fed. 
380,  383. 

leEollman  Mfg.  Co.  v.  Universal 
Hardware  Works,  218  Fed.  651. 

17  EoUman  Mfg.  Co.  v.  Universal 
Hardware  Works,  218  Fed.  651. 

18  Decker  v.  Smith,  225  Fed.  776; 
aff'd  on  this  point,  C.  C.  A.,  234 
Fed.   646. 


19  Wales  v.  Waterbury  Mfg.  Co., 
C.  C.  A.,  101  Fed.  126,  128  (in 
wliich    the   author   was   counsel). 

20  29  St.  at  L.  694,  supra,  §  180. 
Seeger  Refrigerator  Co.  v.  Am.  Car 
&  Foundry  Co.,  212  Fed.  743. 

21  Gordon  v.  Turco-Halva  Co., 
C.  C.  A.,  247  Fed.  487,  491,  infra, 
§428. 

22  Stoekham  v.  Duncan,  C.  C.  A., 
226  Fed.  740,  742. 


S  -J 


89b] 


PROFITS  BY  INFHINOF.HS  (IF  PATENTS 


1889 


required  rather  than  to  extend  the  aceoinitin^'  to  the  new  devices 
without  any  prior  adjudication  thereupon.^^  Whci-c  tlie  differ- 
ence is  considerable  the  court  may  compel  the  complainant  to 
file  a  new  original  bill. 24  AVlK^rc  the  bill  alle^'ed  the  marking 
of  the  article  as  patented  in  accordance  with  the  revised 
statutes  26  or  notice  to  the  defendant  of  the  infrincrement ;  but 
there  was  no  proof  upon  the  liearino:  of  either  of  these  things, 
nor  was  objection  then  made  to  the  omission  of  such  proof:  the 
court  permitted  proof  thereof  to  be  made  upon  the  accounting 
after  an  interlocutory  decree,  in  order  to  carry  the  accounts 
back  of  the  filing  of  the  bill.^e 

Exceptions  to  the  report  of  a  mastei-  ii|>()ii  a  reference  to  com- 
pute damages  for  the  infringement  of  a  jiatent,  which  raised 
the  points  that  the  infringement  was  not  wilful,  that  the  reduc- 
tion of  plaintiff's  profits  Avas  not  solely  due  to  the  infringement, 
and  that  the  master  should  have  reported  nominal  damages, 
were  held  sufficient  to  bring  before  the  court  the  whole  subject 
of  the  computation  of  damages.^' 

In  suits  to  enjoin  the  infringement  of  jiatents.  the  conrt  has 
the  power  to  iiu-rease  the  damages  awarded  to  an  amouiil  not  ex- 
ceeding three  times  the  amount  of  the  actual  damages  sustained-^* 
An  infringer  of  a  patent  for  a  design  is  liable  to  damages  in  the 
amount  of  -1^250,  in  addition  to  the  total  profit  made  by  hiin.^^ 

§389b.  Rules  fcr  computation  cf  profits,  and  burden  of 
proof  upon  patent  accountings.  \Vh(>rc  the  infringer  has  sold 
or  used  a  patented  article,  the  plaintiff  is  entitled  to  recover 
all  the  profits  thereof.^  Where  a  patent,  although  using  old  ele- 
ments, gives  entire  value  to  the  combination,  the  plaintiff"  is 
entitled  to  recover  all  of  the  profits  of  its  use.2     Where  profits 


23  Murray  v.  Orr  &  Loekett  Hairi- 
ware  Co.,  C.  C.  A.,  153  Fod.  369; 
Cordon  v.  Turco-Halver  Co.,  C.  C. 
A.,  247  Fed.  487,  supra,  §231. 

24  Murray  v.  Orr  &  Loekett  Hard- 
ware Co.,  C.  C.  A.,  153  Fed.  368. 
370. 

26  r.  S.  R.  S.,  §  4900. 

26 1'^nderwood  Typewriter  Co.  v. 
Klliott-Fislier  Co.,  171    Fed.  116. 

27  Boesph  V.  Graff,  133  I^.  8.  697. 
•28  1'.  S.  R.  S.,  S4921,  as  amended 


29  St.  at  L.  692,  §  6,  5  Fed.  St.  Ann. 
577,    Pierre   Fed.   Code.    §  8788. 

29  Act  of  February  4,  1887,  24 
St.  at  L.  387,  5  Fed.  St.  Ann.  603. 
Coniii.  St.  3398,  Pierce  Fed.  Code, 
S  8785. 

S  3891).  1  Westingliouse  El.  Co. 
V.  Wasrner  Mfg.  Co.,  225  V.  S.  604. 
014,  56  L.  ed.   1225. 

2Hurlhut  V.  S.'hillinger,  130  V. 
S.  456,  472,  32  L.  ed.  1011,  1016; 
Westingliouse     El.     Co.     v.     Wagner 


1890 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§  389b 


are  made  by  the  use  of  an  article  patented  as  an  entirety,  the 
infringer  is  liable  for  all  the  profits,  unless  he  can  show — and 
the  burden  is  on  him  to  show — that  a  part  of  them  is  the  result 
of  some  other  thing  used  by  him.^  Where  the  plaintiff's  patent 
applies  to  only  part  of  a  machine  and  consequently  creates  only 
part  of  the  profits,  he  must  give  evidence  tending  to  separate  or 
apportion  the  defendant's  profits  or  his  own  damages  between 
the  patented  and  the  unpatented  features,  and  such  evidence 
must  be  reliable  and  tangible,  not  merely  conjectural  or  specu- 
lative, or  else  he  must  show"  by  equally  satisfactory  evidence 
that  the  profits  and  damages  are  to  be  calculated  on  the  whole 
machine  because  the  entire  value  thereof  as  a  marketable  article 
is  properly  and  legally  attributable  to  the  patented  features.* 
Mathematical  accuracy  is  not  required,  but  only  reasonable  ap- 
proximation.5     The   testimony   of   experts  and  of   persons   in- 


Mfg.  Co.,  225  U.  S.  60-1,  614,  56  L. 
ed.  1222,  1225. 

3  Elizabeth  v.  Pavement  Co.,  97 
U.  S.  126,  24  L.  ed.  1000;  Westing- 
house  El.  Co.  V.  Wagner  Mfg.  Co., 
225  U.  S.  604,  614,  56  L.  ed.  1222, 
1225;  Clark  v.  Johnson,  C.  C.  A., 
199  Fed.  116,  and  cases  cited. 

4Garretson  v.  Clark,  111  U.  S. 
120,  28  L.  ed.  371;  Westinghouse 
El.  Co.  V.  Wagner  Mfg.  Co.,  225 
U.  S.  604,  615,  56  L.' ed.  1222,  1225; 
Beckwith  v.  Malleable  Iron  Eange 
Co.,  195  Fed.  291;  Dunn  Mfg. 
Co.  V.  Standard  Computing  Scale 
Co.,  C.  C.  A.,  204  Fed.  617;  Seeger 
Eefrjgerating  Co.  v.  American  Car 
&  Foundry  Co.,  212  Fed.  742;  Her- 
man V.  Youngstown  Car  Mfg.  Co., 
C.  ,C.  A.,  216  Fed.  605 ;  Underwood 
Typewriting  Co.  v.  E.  C.  Stearns  & 
Co.,  C.  C.  A.,  227  Fed.  74;  Yesbera 
V.  Hardesty  Mfg.  Co.,  C.  C.  A.,  166 
Fed.  120,  124,  per  Severens,  J. 
(speaking  of  Garretson  Clark,  su- 
pra): "The  unanimity  with  which 
infringers  seek  the  shelter  of  that 
ease     is     something      remarkable." 

5  Westinghouse  El.  Co.  v.  Wagner 


Mfg.  Co.,  225  U.  S.  604,  617,  56  L. 
ed.  1222,  1227;  Dowagiac  Mfg.  Co. 
V.  ^Minnesota  Molim:'  Plow  Co.,  285 
U.  S.  641,  647;  Wales  v.  Water- 
bury  Mfg.  Co.,  C.  C.  A.,  101  Fed. 
126,  127,  128  (in  which  the  author 
was  counsel),  per  Wallace,  J.:  "It 
is  manifest  that  the  defendant 
would  not  have  sold  the  9,361  gross 
of  pencil  holders  if  it  had  not 
attached  them  to  the  patented 
buckle,  or  to  some  other  buckle 
which  would  have  satisfactorily 
supplied  its  place  as  an  adjunct  of 
the  holder.  The  proofs  indicate 
that  other  buckles,  which  were  open 
to  public  use,  could  have  been  at- 
tached to  the  holders,  but  the  or- 
ganized device  would  have  been  a 
clumsy  and  unattractive  one,  while 
the  patented  buckle  was  peculiarly 
adapted  for  the  purpose  and  was 
the  part  which  commended  the  or- 
ganized device  to  purchasers.  The 
master  found  that  the  patented 
buckle  was  'the  best  and  only 
known  buckle  that  could  have  sold 
pencil  holders,  and  no  part  of  the 
profits    would    have    been    made    ex- 


§  389b] 


PHOFITS  i:V    IXFRIXGERS  OF  PATENTS 


1891 


formed  by  observation  and  experience  is  admissible.^  Testi- 
mony of  this  character  is  generally  helpful  and  at  times  indis- 
pensable in  the  solution  of  such  problems.'  Where  the  patentee 
proves  that  some  profits  were  made  by  the  sale  of  the  infringing: 
articles  and  defendant  proves  that  there  were  other  elements 
contributing  to  the  same,  it  then  devolves  upon  the  plaintiff 
to  apportion  the  amount  of  profits ;«  but  where  the  infringer 
by  intermingling  the  elements  renders  it  impossible  for  the  pat- 
entee to  make  such  apportionment,  the  entire  inseparable  profit 
must  be  awarded  to  the  patentee.^  When  the  plaintiff  proves 
that  the  defendant  has  caused  such  a  mixture,  he  has  sustained 
the  burden  of  proof  resting  upon  him."  When  the  evidence 
offered  by  complainants  is  sufficient  to  support  a  finding  of 
profits,  the  inferences  must  be  drawn  in  his  favor,  if  the  defend- 
ant fails  to  produce  evidence  within  its  control  which  might 
reduce  them.^^ 


eept  for  it.'  It  is  reasonable  to 
suppose  that  the  defendants'  man- 
agers would  not  have  exposed  it  to 
liability  as  an  infringer  if  they  had 
believed  that  some  other  buckle, 
which  they  were  at  liberty  to  use, 
would  have  answered  the  purpose 
of  the  patented  buckle  as  an  ad- 
junct of  the  holders;  and  notwith- 
standing, some  evidence  to  show 
that  it  would,  and  that  the  spring 
buckle  plate,  an  unpatented  feature 
added  to  the  buckle,  contributed  to 
its  popularity,  we  are  satisfied  upon 
the  proofs  that  the  master  was  cor- 
rect in  his  finding,  and  that  there 
would  have  been  no  appreciable  de- 
mand for  the  holders  if  they  had 
not  been  attached  to  "the  patented 
buckle.  The  license  in  fixing  such 
a  large  royalty  upon  the  buckle 
when  sold  with  the  holders  points 
also  to  this  conclusion." 

6  Ibid.  Conroy  v.  Penn.  El.  & 
Mfg.  Co.,  C.  C.  A.,  199  Fed.  427. 
Herman  v.  Youngstown  Car  Mfg. 
Co.,   C.    C.    A.,    216    Fed.    604,    607. 

7  Dowagiac    Mfg.    Co.    v.    Minne- 


sota   Moline    Plow    Co.,    235    U.    S. 
641,  647,  per  Van  Devanter. 

8  Westinghouse  El.  Co.  v.  Wag- 
ner El.  Co.,  22.')  Fed.  604,  617,  622; 
Dowagiac  Mfg.  Co.  v.  Minnesota 
Moline  Plow  Co.,  23.1  V.  «.  G41, 
647. 

9  Westinghouse  El.  Co.  v.  Wag- 
ner Mfg.  Co.,  22.5  IT.  S.  604,  618. 
.56  L.  ed.  1222,  1227;  Roth  v.  Har 
ri,s,  197  Fed.  929;  Seeger  Refrig- 
erator Co.  V.  American  Car  & 
Foundry  Co.,  C.  C.  A.,  219  Fed. 
.165:  La  Crosse  Plow  Co.  v.  Van 
Brunt,  C.  C.  A.,  220  Fed.  626; 
Decker  v.  Smith,  225  Fed.  777; 
Metallic  Rubber  Tire  Co.  v.  Hart- 
ford Rubber  Works  Co.,  245  Fed. 
861. 

10  I])id. 

llByerly  v.  Sun  Co..  226  Fed. 
759,  763.  Herman  v.  Youngstown 
Car  Mfg.  Co.,  C.  C.  A.,  216  Fed. 
604,  608,  per  Dennison,  J.:  "The 
marketed  device  really  consists  of 
two  main  parts  to  one  of  which 
the  invention  pertains  and  to  the 
other     of     which     it     is     incidental 


1892  PROCEEDINGS  IN  A  MASTER'S  OFFICE  [§  389b 

"  'Burden  of  proof  as  a  phrase  is  not  strictly  applicable  to 
any  criticism  of  the  views  of  the  master  in  the  accounting  he  has 
returned,  because  the  master  has  categorically  stated  the  prin- 
ciple to  be  that  the  burden  is  always  upon  the  plaintiff  to  show 
the  profits  claimed.     The  question  is  rather  one  of  evidential 
weight.     In  the  practical  solution  of  the  problem  of  finding  the 
amount  of  the  profits,  the  two  things  are  likely  to  merge  and 
the  distinction  be  shaded  out  of  existence.     When  the  fact  of 
profits  has  been  affirmatively  shown,  and  we  come  to  the  ascer- 
tainment of  the  amount,  this  also  must  be  shown  by  the  plaintiff. 
The  amount  of  the  sales  does  not  indicate  it,  because  this  would 
not  justify  a  finding  that  the  receipts  were  all  profits.     When, 
however,   the   plaintiff'  introduces  testimony   and  evidence  by 
which  we  can  trace  the  process  from  raw  materials  to  marketed 
product,  with  its  attendant  cost,  if  this  is  sufficient  to  justify 
a  finding  of  the  total  cost  of  production,  we  have  evidence  from 
which  the  amount  of  the  net  profits  may  be  determined.    What 
weight  certain  features  of  the  evidence  should  have,  and  to 
what  mathematical  results  it  should  lead,  depend  upon  all  those 
considerations    which    fairly    deepen    or    lessen    the    impressioii 
made.     The  expression  of  the  resolution  of  doubts  is  perhaps 
not  a  happy  one,  because  associated  in  the  legal  mind  with  con- 
ditions foreign   to   cases  of   the   character  of  the  pi-esent  one. 
Inasmuch,  however,  as  is  usually  the  case,  or  when,  as  here  it 
is  one  of  the  conditions  of  the  inquiry,  that  the  evidence  must 
be  sought  in  the  opposing  ca-mp,  and  clear  proofs  are  or  ought 
to  be  within  the  control  of  the  party  to  be  charged,  inferences, 
which,  if  unsound,  could  be  readily  negatived  are  justified  in 
favor  of  the  plaintiff  whicli  would  not  be  justified  if  the  measure 
of  proofs  was  controlled  by  him  instead  of  the  defendant. 

"Applying  the  principle  to  the  facts  of  this  case,  if  the  facts, 
as  they  appear,  justify  such  a  statement  of  receipts  and  expendi- 
tures as  to  show  the  found  balance  on  the  profit  side,  as  this 
balance,  if  wrong,  could  be  shown  to  be  wrong  by  evidence  of 
expenditures  made  by  defendant,  and  as  it  avers  the  disclosure 
of  all  evidence  of  expenditures  made,  the  fact  that  the  weight 
of  the  evidence  produced  might  be  affected  by  facts  which  do 
not  appear,  because  of  its  inability  to  produce  evidence  of  what 
additional  cost  had  been  incurred,  ought  not  to  cause  the  mind 


§  889b] 


PIJOFITS  BY  INFRINGKKS  OF  PATKNTS 


1893 


to  hesitate  to  reaeli  (and  in  this  sense  to  render  doubtful)  the 
inference  which  would  otherwise  be  drawn."  ^^ 

In  a  suit  to  enjoin  the  infringement  of  a  patent  for  the  design 
of  a  piano  case  where  the  evidence  showed  the  cost  of  the  cases, 
the  cost  of  the  wliole  piano  and  the  profits  made  by  the  sale  of 
the  latter,  but  there  was  no  instance  in  wliich  the  case  or  the 
works  were  separately  sold,  nor  evidence  from  which  the  extent 
to  which  the  use  of  the  design  had  contributed  to  the  sales, 
could  be  determined,  under  tiie  At-t  of  February  4,  1887,  subse- 
quently quoted, 1^  a  decree  was  entered  against  the  defendant 
for  that  proportion  of  all  the  profits  which  the  cost  of  a  case 
bore  to  the  cost  of  a  complete  piano. i*  Protits  are  not  dis- 
allowed because  the  infringement  was  made  in  connection  with 
a  structure,  the  cost  of  wliich,  aside  from  the  improvement,  was 
much  greater  than  that  of  the  patented  device. ^^  if  the  defend- 
ant could  have  obtained  the  same  result  through  the  use  of  non- 
infringing patents  or  processes,  the  measure  of  profit,  is  the 
lessened  cost  of  production  by  the  infringement,^^  even  though 


*  *  *  it  follo-ws  that  in  the  ab- 
sence of  any  condition  making  an 
eqnal  division  improper,  and  in  the 
presence  of  the  undisputed  testi- 
mony that  this  general  method  is 
correct,  the  profits  should  be  di- 
vided into  two  equal  parts,  one 
of  which  should  be  apportioned  to 
the  light-giving  part  of  tlie  device. 
Further  than  this,  we  cannot  go. 
We  cannot  sub-divide  this  function 
of  the  machine. ' ' 

12Byerly  v.  Sun  Co.,  226  Fed. 
759,  763,  per  Dickinson,  J. 

13  24  St.  at  L.  387,  Comp.  St., 
§9476;  infra,   §  389e. 

14  Bush  &  Lane  Piano  Co.  v. 
Becker  Bros.,  234  Fed.   79. 

15  Roth  V.  Harris,  197  Fed.  929. 

16  Cambria  Iron  Co.  v.  Carnegie 
Steel  Co.,  C.  C.  A.,  224  Fed.  947; 
Schniertz  Wire  Glass  Co.  et  al.  v. 
Western  Glass  Co.,  203  Fed.  lOOti; 
Western  Glass  Co.  v.  Schniertz  Wire 
Glass    Co.,    226    Fed.    730;     B.    F. 

Fed.  Prac.  Vol.  11—19 


Goodrich  Co.  v.  Consol.  Rubber  Co., 
C.  C.  A.,  251  Fed.  617,  622.  "Like- 
wise in  this  case  appellees  should 
not  be  compelled  to  accept  their  own 
])rofits  as  the  basis  for  determining 
a  reasonable  royalty.  Originally 
the  owner  of  the  patent  did  not 
contemplate  manufacturing  all  its 
solid  rubber  tires.  To  obtain  its 
outjait  it  made  an  exclusive  con- 
tract with  appellant.  When  the  lat- 
ter company  turned  infringer  ap- 
pellees were  in  no  position  to  en- 
gage in  the  manufacturing  business 
and  conduct  it  at  a  profit.  They 
did  not.  like  the  appellant  and 
otiier  infringers  linve  unlimited  cap- 
ital and  an  established  business  ex- 
tending to  every  corner  of  the 
F^nited  States  to  support  their  ven- 
ture. It  is  worthy  of  notice  that 
;i|>)ellees'  i)rofit  of  6.7  cents  per 
pound  was  base.l  on  its  business 
during  the  first  half  of  this  period. 
During   the   last    four   or    five   years 


1894 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§  389b 


the  other  processes  or  devices  were  patent ed.^'^  But  the  award 
for  profits  will  not  be  reduced  because  of  a  process  developed 
after  the  infringement  was  begun  and  used  only  experimentally 
or  occasionally  during  the  infringement  for  the  purpose  of 
avoiding  or  minimizing  liability ;  ^^  nor  because  of  an  increase 


there  is  evidence  tending  to  show 
appellees'  profits  from  the  manu- 
facture of  this  rubber  tire  exceeded 
10  cents  per  pound.  While  it 
should  be  added  that  the  reliabil- 
ity of  these  figures  is  vigorously 
assailed  by  appellant,  we  are  con- 
vinced that  the  reasonable  royalty 
varied  somewhat  during  this  period 
due  to  the  holdings  of  the  courts." 

17  American      Pneumatic      Service 
Co.   V.   Snyder,  241  Fed.  274. 

18  Expanded  Metal  Co.  v.  General 
Fireproof  Co.,  247  Fed.  899;  Lee 
V.  Malleable  Iron  Eange  Co.,  247 
Fed.  795,  800,  801,  802,  804,  per 
Geiger,  J. :  "  Whatever  may  be  the 
applicability  of  this  standard  of 
comparison  rules  to  other  situations, 
there  ought  to  be  at  least  hesita- 
tion in  adopting  it  where  profits 
have  been  figured  and  apportioned 
without  its  aid.  The  obvious  dan- 
ger of  attempting  to  measure  re- 
covery not  by  what  the  infringer  as 
a  manufacturer  or  seller  in  fact 
made  as  a  manufacturer's  and 
seller  's  profit  on  the  particular  com- 
bination, but  by  the  gain,  if  any, 
as  compared  with  what  he  would 
have  made,  had  he  manufactured 
something  which  he  might,  but  did 
not,  make — the  obvious  danger  in- 
volved is  this:  It  introduces  a  con- 
jectural basis  of  evidence:  it  com- 
pels assumptions  which  are  repug- 
nant to  the  very  purpose  of  giving 
relief  to  the  patentee  for  the  ap- 
propriation which  the  infringer  for 
some  reason  chose.  It  compels 
comparison  of  what  he  actually  did 


as  against  a  standard  which  he 
chose  not  to  follow;  it  gives  promi- 
nence to  what,  but  for  the  inven- 
tion, he  might  have  done,  thereby 
to  get  the  measure  or  value  of  what 
apparently,  because  of  the  inven- 
tion, he  did  so.  In  other  words, 
the  realm  of  speculation  is  explored, 
collaterally  inquired  into,  with  the 
inevitable  result  of  always  finding 
some  standard  which  will  lead  to 
nominal  recoveries;  a  practical  re- 
sult of  treating  the  infringement 
or  appropriation  as  a  mere  fortuity, 
a  mere  accident  of  making  a  selec- 
tion of  one  out  of  several  desirable 
courses  to   pursue. 

' '  In  further  consideration  of  this 
let  it  be  assumed  that  the  very  res- 
ervoirs suggested  by  the  defendant 
as  standards  of  comparison  could 
have  been  made  at  precisely  the 
same  or  at  variant  costs;  the  in- 
firmity of  the  rule — the  injustice. 
I  believe,  of  its  attempted  appli- 
cations— rests  in  the  added  hypothe- 
sis or  assumption  that,  had  any 
other  been  it  would  have  achieved 
corresponding  results  in  respect  of 
the  number  of  infringing  reservoirs 
which  the  defendant  in  fact  made 
and  sold.  In  this  way,  although 
the  whole  manufacture  and  result- 
ing trade  may  have  been  bottomed 
upon  the  act  and  commercial 
merit  of  the  appropriated  inven- 
tion, an  infringer  may  still  retain 
his  gains  and  go  acquit,  except  for 
nominal  recovery  because  he  can 
show  that  he  gained  or  saved  or 
profited   no   more   than  his  competi- 


389b] 


PROFITS  BY  INFRINGERS  OF  PATENTS 


1895 


tors  in  their  manufacture  and  sales 
of  'what  he  would  have  been  free 
to  make  and  sell,  but  did  not. '    The 
j)roof  may  be  overwhelming  that  the 
particular    infringer,    in   the    course 
of    his    manufacture    and    sale    not 
only  met  competition,  ])ut  distanced 
it,    by    creating    a    greater    commer- 
cial favor  for  the  infringing  article, 
yet    so   long    as   he    can    show    that 
he    made   no   more   money    than   he 
would  have  made,   had  he   followed 
the    course    of    his    competitors,    he 
may    retain    his   gains   because   this 
enables    him    to    say    that    he    made 
nothing    out    of    the    invention.      It 
results  in  denial  of  gains  by  an  in- 
fringer who  is  fortunate  enough   to 
have   actual   or  possible   competitors 
in   the    same    general    line,    through 
whom  and  whose  experience  he  can 
place  before  the  court  an  hypothe- 
sis which   after   all,  enables  him   to 
travel  in  a  circle  on  this  matter  of 
gains      and      profits.      *      *     *      i 
believe    that    the    matter    may    be 
stated  in  another  way:   A  basic  in- 
firmity of  the  so-called  rule  of  com- 
parison resides  in  the  effort  to  fas- 
ten   upon    the    words    'attributable 
to  the  invention'  a   meaning  which, 
with  the  aid  of  this  rule,  can  never 
be  satisfied,   except  by  showing  in- 
creased profits  on  the  individual  in- 
fringing, as  against  the  'standard' 
structure.      Wliereas,    the    invention 
and   the   endeavors  of  the   inventor, 
not    only   may    have    been    designed 
and   exerted   to   increase,   but   actu- 
ally  do   increase,    cost   and   thereby 
reduce    profits,    which    reduction    is 
expected      to      find      compensation 
cither    in    increased    sale    price    on 
increased  volume  of  business,  or  not 
at    all;    or    that    they    were    calcu- 
lated   either    to    reduce    or    increase 


in    like    proportion    cost    of    manu- 
facture and  sale  price,  and  thereby 
maintain    the    same    profit    as    was 
earned  upon  the  unpatented  or  un- 
improved structure.    In  other  words, 
the   'standard'  itself,  its  high  cost 
of  manufacture,  and  its  high  price, 
its  profit  yield  to  say  nothing  of  its 
inferiority,  may  have  prompted  the 
inventor    in    his    efforts,    by    mere 
improvement,   to   lessen   the   cost   of 
making,  the  price,  the  yield  as  well 
as   to    do    something    new    and   use- 
ful.    So,  too,  as   bearing  upon  this 
question  of  relevancy,  these  further 
considerations   are  not   to   be   over- 
looked.    The   infringer,  presumably, 
knows  the   'standard'   and   its  yield 
of  profit,  but  he  also  can  and  does 
fix  and  control,   not  only  the   cost, 
but  the  sale  price,  of  the  infringing 
structure     and     thereby     its     yield. 
Therefore    it    is    within    his    power, 
at  all  times,  by  contenting  himself 
with    a    yield    equal    to    or    smaller 
than    that    of    the    'standard'     to 
escape  -accounting    for    profits,    'at- 
tributable'   to    the    invention;     and 
though,    by     greatly     reducing    his 
yield  upon  the  particular  structure, 
he  may,  as  stated,  by  a  greatly  in- 
creased volume  of  manufacture  and 
sale,    increase    his    aggregate    yield 
of  profits.     True,  while  he  may  not 
create     or     control     the    'open'     or 
'standard'    structure    or    its    yield, 
yet   he   can   by  his  own   conduct   at 
wiE,    frustrate    the    probative    force 
or    effect    of    the    'standard'    and 
hence  the  result  of  a  'comparison.' 
Or,   as   indicated,   assuming   that  he 
might  be   quite   innocent   respecting 
the    standard,    his    whole    endeavors 
may    have   been   exerted,   his   whoTe 
profits    may    have    been    earned,    in 
his  estimate  of,  and  upon  the  pub- 


1896 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§  389b 


in  profits  due  to  an  economy  introduced  after  the  infringement 
was  begun. 1^ 

Every  infringement  must  be  treated  by  itself  if  it  resulted 
in  profit,  that  profit  belongs  to  the  patentees  and  if  it  resulted 
in  loss  that  loss  must  be  borne  by  the  infringer.^'' 

The  defendant  is  to  be  charged  with  all  products  of  value 
resulting  from  the  infringement,  although  there  is  no  such 
product  claim  in  the  patent.^^  The  cost  of  the  raw  material 
should  be  taken  at  the  price  paid,  when  bought,  not  at  its  value 
when  it  was  used.^^  The  defendant  is  not  to  be  charged  with  the 
value  of  the  good  will  which  he  gained  through  the  infringe- 
ment.^^ 

When  the  complainant  has  proved  that  profits  were  made  by 
the  defendant  the  latter  has  the  burden  of  showing  by  clear 
proof  that  he  has  paid,  made  or  incurred  expenses  for  which 
deduction  should  be  madc.^*     Where  he  claims  a  deduction  of    v 


lie's  faith  in,  the  'iinjirovenieut'; 
he  still  has  the  right,  under  this 
rule,  to  learn  in  an  accounting  suit 
that  he  in  fact  made  his  profit  in 
spite  of,  not  because  of,  the  'im- 
provement.' " 

19  Lee  y.  Malleable  Iron  Range 
Co.,  247  Fed.   795. 

20  Metallic  Rubber  Tire  Co.  v. 
Hartford  Rubber  Works  Co.,  245 
Fed.  860,  864. 

2lByerly  v.  Sun  Co.,  226  Fed. 
759. 

22Byerly  v.  Sun  Co.,  226  Fed. 
759;  Metallic  Rubber  Tire  Co.  v. 
Hartford  Rubber  Works  Co.,  245 
Fed.  860,  865. 

23Byerly  v.  Sun  Co.,  226  Fed. 
759. 

24  Decker  v.  Smith,  225  Fed.  776, 
781,  "where  an  infringer  of  a  pat- 
ent engaged  in  making  or  bausing 
to  be  made,  and  also  in  selling,  the 
infringing  articles  and  also  in  mak- 
ing and  selling  other  non-infringing 
goods,  and  perhaps  in  both  making 
and  selling  others,  fails  to  keep 
books    or    accounts    or    memoranda 


which  enable  liim  or  others  to  sepa- 
rate and  distinguish  the  expense  of 
making  and  selling  the  infringing 
article  from  that  of  the  others  and 
so  commingles  and  intermingles  his 
manufacturing  and  selling  busi- 
nesses and  the  expenses  thereof  as 
to  make  it  impossible  to  separate 
the  expense  of  the  others,  with  any 
reasonable  degree  of  certainty,  such 
infringer  cannot  be  allowed  a  de- 
duction from  the  gross  profits  on 
sales  of  infringing  goods  proved,  on 
mere  surmise,  guess,  speculation,  or 
estimates  or  on  mere  opinion  evi- 
dence not  based  on  definite  facts 
luit  mere  opinion  based  on  general 
recollection  as  to  the  time  actually 
spent  and  salaries  or  wages  paid 
in  making  and  selling  the  infring- 
ing articles.  The  negligence  or 
loose  business  methods  of  an  in- 
fringer cannot  be  used  by  him  as 
a  shield  or  as  a  weapon  of  offense, 
in  dealing  with  the  one  whose  rights 
he  lias  thus  invaded  or  to  defeat 
the  recovery  of  profits  actually 
made  by  the  infringer.     In  this  case 


§  389c]  DEDUCTIONS    KHO.M     PROFITS    IN     I'ATKNT    CASES 


1897 


part  of  overhead  cliarges,  taxes,  insurance  repairs,  or  deprecia- 
tion of  plant,  the  burden  is  upon  him  to  produce  evidence  from 
which  such  an  apportionment  can  be  made.^^ 

§  389c.  Deductions  from  profits  in  patent  cases.  The  cost 
of  the  manufactui-e  and  sah^  by  liim  of  the  infringing  articles 
are  credited  to  the  defendant  in  estimating  his  profits.  An 
allowance  is  made  for  the  traveling  expenses  of  salesmen,  rent, 
drayage  and  the  reasonable  salaries  and  wages  of  those  en- 
gaged, directly  or  indirectly,  in  the  infringement.^  Royalties 
paid  for  the  right  to  use  other  patents  can  be  allowed  if  they 
cover  the  addition  of  substantially  different  and  non-infringing 
elements  to  the  structure  of  a  limited  patent ,2  but  not  otherwise.' 

Expenses  of  advertising  the  infringing  article  can  be  de- 
ducted, provided  that  they  can  be  separated  from  or  appor- 
tioned with  the  expenses  of  advertising  the  defendant's  other 
products.*  Otherwise  not.^  Deductions  are  also  made  for 
amounts  i)aid  commercial  agencies  for  reports  concerning  cus- 
tomers and  intending  purchasers  of  the  infringing  artic^es.^ 

When  an  infringement  has  been  made  by  a  corporation  and 
extended  to  its  entire  business,  the  usual  salaries  of  managing 
officers  may  be  allowed ;  "^  but  where  these  seem  to  be  excessive 
and  to  be  in  reality  a  division  of  the  protits,  the  credit  for  sncii 
expenses  is  reduced  to  a  reasonable  amount.^ 


all  deductions  have  been  made  ex- 
cept certain  alleged  expenses  of 
selling  the  infringing  goods. ' '  See 
Gordon  v.  Tuico-Halvah  Co.,  C.  C. 
A.,   247   Fed.   487. 

26  Metallic  Eubber  Tire  Co.  v. 
Hartford  Rubber  Works  Co.,  245 
Fed.  860. 

§  389c.  1  National  Folding  Box  & 
Paper  Co.  v.  Dayton  Paper  Novelty 
Co.,  9.5  Fed.   991,  993. 

2  Herman  v.  Youngstown  Car 
Mfg.    Co.,    21fi    Fed.    605,    C.    C.    A. 

3  Metallic  Rubber  Tire  Co.  v. 
Hartford  Rubber  Works  Co.,  245 
Fed.   860.   864. 

4  Gordon  v.  Turco-Halvali  Co., 
C.  C.  A.,  247  Fed.  487. 

5  Metallic      Rubber     Tire     Co.     v. 


Hartford    Rubber    Works    Co.,    245 
Fed.   860. 

6  National  Folding  Box  &  Paper 
Co.  V.  Dayton  Paper  Novelty  Co., 
95  Fed.  991,  993. 

7  Rubber  Co.  v.  Goodyear,  9  Wall. 
788;  Williams  v.  Leonard,  9 
Blatchf.  476,  29  Fed.  Cas.  No.  1372: 
Winchester  Rejieating  Arms  Co.  v. 
Am.  Buckle  &  Cartridge  Co.,  62  Fed. 
278,  280;  National  Folding  Box  & 
Paper  Co.  v.  Dayton  Paper  Novelty 
Co..  95  Fed.  991,  994. 

8  Ibid.  Lee  v.  Malleable  Iron 
Range  Co.,  247  Fed.  795  (sales 
managers)  ;  Bush  &  Lane  Piano  Co. 
v.  Borkor  Bros..  C.  C.  A..  234  Fed. 
79. 


1898 


PROCEEDINGS  IN  A  MASTER'S  OFFICE 


[§  389c 


The  later  authorities  hold  that  in  such  a  case  the  defendant 
is  entitled  to  credit  for  payments  for  insurance,^  taxes,i°  use  or 
depreciation  of  plant  and  machinery^^  and  even  for  interest  upon 
the  capital  employed ;  ^^  and  that,  when  evidence  can  be  given 
to  show  a  proper  basis  for  the  calculation,^^  such  charges,  except 
perhaps  those  for  depreciation, ^^a  j^j^(j  ^Iso  the  salaries  and  ex- 
penses of  travel  for  traveling  salesmen,^^''  can  be  apportioned  be- 
tween the  operations  of  the  infringement  and  the  rest  of  the  busi- 
ness, and  a  reasonable  proportion  thereof,  credited  against  the 
protits.^*  The  defendant  must  however  offer  proof  to  show  that 
such  an  apportionment  can  be  made  with  reasonable  accuracy.^^ 
A  credit  for  interest  on  capital  invested  in  an  old  plant  and  ma- 
chinery previously  used  for  other  business  will  not  be  denied, 
because  the  plant  and  machinery  were  not  made  for  the  manu- 
facture of  the  infringing  article,  actually  so  used.^^ 

The  defendant  is  not  entitled  to  credit  for  the  cost  of  the 
manufacture  of  any  part  of  his  products  for  the  sales  of  which 


9  Carborundum  Co.  v.  Electric 
Smelting  &  Aluminum  Co.,  C.  C. 
A.,  20.3  Fed.  976,  985;  Oehring  v. 
Fox  Typewriter  Co.,  251  Fed.  584. 
Contra,  Piaget  Novelty  Co.  v.  Head- 
ley,  12.3  Fed.  897;  Metallic  Eubber 
Tire  Co.  v.  Hartford  Eubber  Works 
Co.,  245  Fed.  860,  864. 

10  Ibid.  Contra,  Nat.  Folding 
Box  Co.  V.  Dayton  Paper  Novelty 
Co.,  95  Fed.   991,  994. 

11  See  Manufacturing  Co.  v.  Cow- 
ing, 105  U.  S.  223;  Winchester  Eep. 
Arms  Co.  v.  Am.  B.  &  C.  Co.,  62 
Fed.  278,  Piaget  Novelty  Co.  v. 
Headley,  123  Fed.  897. 

12  Western  Glass  Co.  v.  Schwertz 
Glass  Co.,  C.  C.  A.,  226  Fed.  730, 
citing  Mfg.  Co.  v.  Cowing,  105  U. 
S.  253,  257,  26  L.  ed.  987;  Sea- 
bury  V.  Annendy,  152  U.  S.  561, 
14  Sup.  Ct.  683,  38  L.  ed.  553. 
Contra,  Eubber  Co.  v.  Goodyear,  9 
Wallace  788,  804,  19  L.  ed.  566; 
Expanded  Metal  Co.  v.  General 
Fireproofing   Co.,   247   Fed.   899. 

13  Oehring  v.  Fox  Typewriter  Co., 


C.  C.  A.,  251  Fed.  584.  Contra, 
Saxlehner  v.  Eisner  &  Mendelson 
Co.,  C.  C.  A.,  138  Fed.  22. 

13a  Metallic  Rubber  Tire  Co.  v. 
Hartford  Eubber  Works  Co.,  245 
Fed.  860,  864. 

13b  Metallic  Rubber  Tire  Co.  v. 
Hartford  Eubber  Works  Co.,  245 
Fed.  860,  864. 

14  Oehring  v.  Fox  Typewriter  Co., 
C.   C.  A.,  251  Fed.  584. 

15  Metallic  Eubber  Tire  Co.  v. 
Hartford  Eubber  Works  Co.,  245 
Fed.  860. 

A  failure  to  keep  books  which 
apportion  the  expense  of  the 
time  of  a  traveling  salesman  does 
not  deprive  the  infringer  of  the 
right  to  an  appropriate  credit  when 
he  shows  by  satisfactory  evidence 
how  much  of  the  former  salesman's 
time  should  be  charged  to  the  sales 
of  the  infringing  articles.  Decker 
V.  Smith,  C.  C.  A.,  234  Fed.  646,  ^ 
modifying   225   Fed.    776. 

16  Oehring  v.  Fox  Typewriter 
Co.,  C.  C.  A.,  251  Fed.  584. 


389c] 


DEDUCTIONS  FROM  PROFITS  IX  PATENT  CASES 


1899 


he  does  not  account.^'''    Salaries  paid  for  their  services  to  differ- 
ent members  of  an  infringring  firm  cannot  be  credited  to  them  as 
expenses.^®     The  defendant  is  not  entitled  to  charge  a  manu- 
facturer's profit. ^^     Nor  for  the  cost  of  unsuccessful  experi- 
ments to  accomplish  the  same  result   without   infringement.'^* 
But  the  cost  of  designing  the  infringing  machine  was  allowed  as 
a  deduction  when  there  was  no  evidence  that  either  the  de- 
signer ^i  or  the  defendant  then  knew  of  the  plaintiff's  patent.^ 
No  credit  is  allowed  for  losses^  such  as  bad  debts  2*  or  the 
cost  of  replacing  defective  articles  made  at  a  loss.^^    These  can- 
not be  set  off  against  sales  made  at  a  profit,  ^^  nor  for  a  loss 
incurred  in  the  sale  of  anothei'  article  by  giving  away  another 
infringing  device  as  a  part  of  it  in  order  to  stimulate  sales.'*'^ 
Nor  for  the  nominal  price  at  which  old  machines  were  taken 
in   exchange  when   these   were  scrapped  and  valueless.^*     Nor 
for  the  cost  of  changes  made  after  a  sale  to  satisfy  the  pur- 
chaser.29     Nor  for  expenses  in  attempts  to  make  sales  which 
were  not  consummated.^"    A  credit  will  not  be  allowed  for  ab- 
normal expenses  for  salesmen  made  in  an  effort  to  build  up  a 


17  Continuous  Olass  Press  Co.  v. 
Schmertz  Wire  Glass  Co.,  C.  C.  A., 
219  Fed.  199. 

ISCallaghan  v.  Myers,  128  U.  S. 
617,  32  L.  ed.  547,  9  Sup.   Ct.   177. 

19  Lee  V.  Malleable  Iron  Range 
Co.,  247  Fed.  795. 

20  Crosby  Valve  Co.  v.  Safety 
Valve  Co.,  141  U.  S.  441,  457,  12 
Sup.  Ct.  49,  35  L.  ed.  809. 

21  Page  Mach.  Co.  v.  Dow,  Jones 
&  Co.,  238  Fed.  369,  374. 

22  Page  Mch.  Co.  v.  Dow,  Jones 
&  Co.,  238  Fed.  369,  375. 

23MeLee  Glass  Co.  v.  H.  C.  Fry 
Glass  Co.,  C.  C.  A.,  248  Fed.  125. 

24  Metallic  Eubber  Tire  Co.  v. 
Hartford  Eubber  Works  Co.,  245 
Fed.    860,   864. 

25  Metallic  Rubber  Tire  Co.  v. 
Hartford  Rubber  Works  Co.,  24.1 
Fed.  860,  864. 

26  Metallic  Rubber  Tire  Co.  v. 
Hartford    Rubber    Works    Co.,    245 


Fed.  860,  864.  The  testimony  of 
one  of  the  defendant's  officers  that 
some  of  the  accounts  for  machines 
sold  are  not  collectible  is  not 
enough  to  justify  deduction  of  the 
profits  upon  such  sales,  when  there 
is  no  proof  of  attempts  to  collect 
or  offer  to  assi^  such  accounts  to 
the  plaintiff.  Peerless  Brick  Ma- 
chine Co.  V.  Miracle  Pressed  Stone 
Co.,  181  Fed.  526;  Metallic  Rubber 
Tire  Co.  v.  Hartford  Rubber  Works 
Co.,  245  Fed.  860,  864. 

27  Underwood  Typewriter  Co.  v. 
Fox  Typewriter  Co.,  C.  C.  A.,  220 
Fed.  880. 

28  Racine  Eng.  &  M.  Co.  v.  Con- 
fectioners'  M.  &  Mfg.  Co.,  C.  C.  A., 
234  Fed.  876. 

29  Morgan  Const.  Co.  v.  Forter- 
Miller  Engineering  Co.,  C.  C.  A., 
2.34   Fed.   325. 

30  Decker  v.  Smith,  225  Fed.  776. 


1900  PROCEEDINGS  IN  A  MASTER'S  OFFICE  [§  389d 

good  will  for  the  sale  of  the  infringing  article,  the  patent  upon 
which  was  near  its  expiration,^!  nor  for  unsuccessful  attempts 
to  extend  the  market.^^  Nor  for  attorney  fees.^^  Nor  for  ex- 
penses in  the  Patent  Office.^*  Nor,  it  has  been  held,  for  pay- 
ments to  physicians  for  injuries  to  employ ees.^^ 

§  3'89d.  Interest  upon  profits.  Unless  the  iriringement  is 
fraudulent  and  wanton,  interest  upon  the  profits  will  not  be 
allowed  prior  to  the  filing  of  the  master's  report.^  Interest  is 
usually  allowed  from  the  date  of  the  filing  of  the  master's  report, 
which  was  confirmed.^  When  the  court  set  aside  two  inconsistent 
reports  made  by  a  master  and  finally  reached  a  result  which 
was  a  substantial  confirmation  of  one  of  these,  interest  was 
allowed  from  the  date  of  such  report.^  When  at  the  time  of  the 
infringement  the  validity  of  the  patent  was  in  serious  contro- 
versy and  a  District  Court  had  held  that  it  was  invalid,  the 
infringement  cannot  be  deemed  wanton  and  deliberate.*  But 
the  advice  of  counsel  is  not  always  an  excuse.^ 

§389e.  Assessment  of  damages  for  infringement  cf  patents. 
The  assessment  of  damages  in  suits  for  the  infringement  of 
patents  was  first  authorized  by  the  Act  of  July  8,  IBTO.^  This 
as  re-enacted  in  the  Revised  Statutes  and  subsequently  amended 
provides:  "The  several  courts  vested  with  jurisdiction  of  cases 
under  the  patent  laws  shall  have  power  to  grant  injunctions 
according  to  the  course  and  principles  of  the  courts  of  equity, 
to  prevent  the  violation  of  any  right  secured  by  patent,  on  such 
terms  as  the  court  may  deem  reasonable;  and  upon  a  decree 
being  rendered  in  any  such  case  for  an  infringement  the  com- 
plainant shall  be  entitled  to  recover,  in  addition  to  the  profits 

31  Oehring  v.  Pox  Typewriter  Co.,  8  Su]).  Ct.  906 ;  National  Folding- 
C.  C.  A.,  251  Fed.  584.  Box   &  Paper   Co.   v.   Dayton  Paper 

32  Ibid.  Novelty  Co.,  97  Fed.  331;   Western 

33  National  Folding-Box  &  Paper  Glass  Co.  v.  Schwertz  Glass  Co.,  C. 
Co.,  V.  Dayton  Paper  Novelty  Co.,  C.  A.,  226  Fed.  730;  B.  F.  Good- 
95  Fed.  991,  994.  rich  Co.  v.  Consol.  Eubher  Tire  Co., 

34  Metallic    Eubber     Tire    Co.    v.  251  Fed.  617. 
Hartford    Kubber    Works    Co.,    245  2  Ibid. 
Fed.   860,   863.  3  Ibid. 

35  Nat.  Folding  Box  Co.  v.  Day-  4  Oehring  v.  Fox  Typewriter  Co., 
ton  Paper  Box  Novelty  Co.,  95  Fed.  C.  C.  A.,  251  Fed.  584. 

991    994.  5  Lee    v.    Malleable    Iron    Eange 

§  389d.     1  Tilghman     v.     Proctor,       Co.,  247  Fed.  795,  808. 
125  U.   S.   136,   160,  31   L.  ed.   664,  §  389e.     129   St.   at   L.   694. 


§  389e]  L).\.M.\<;i:s  IN  lATKXT  CASES  1001 

to  be  accounted  for  by  the  defendant,  tlie  damages  tlie  com- 
plainant lias  sustained  thereby;  and  the  court  shall  assess  the 
same  or  cause  the  same  to  be  assessed  under  its  direction.  And 
the  court  shall  have  the  same  power  to  increase  such  damages, 
in  its  directions,  as  is  given  to  increase  the  damages  found  by 
verdicts  in  actions  in  the  nature  of  actions  of  trespass  upon  the 
case.  But  in  any  suit  or  aetion  i)rouglit  for  the  infringement 
of  any  patent  there  shall  be  no  recovery  of  profits  or  damages 
for  any  infringement  committed  more  than  six  years  before 
the  filing  of  the  bill  of  complaint  or  the  issuing  of  the  writ  in 
such  suit  or  action,  and  this  provision  shall  appU'  to  existing 
causes  of  action."  ^ 

On  account  of  the  difficulty  in  obtaining  technical  proof  of  the 
profits  and  damages  in  case  of  the  infringement  of  a  patent  for 
a  design  the  Act  of  February  4th,  1887,  provides,  "Hereafter 
during  the  term  of  letters  patent  for  a  design,  it  shall  be  unlaw- 
ful for  any  person  other  than  the  owner  of  said  letters  patent, 
without  the  license  of  such  owner,  to  apply  the  design  secured 
by  such  letters  patent,  or  any  colorable  imitation  thereof,  to  any 
article  of  manufacture  for  the  purpose  of  sale,  or  to  sell  or 
expose  for  sale  any  article  of  manufacture  to  which  such  design 
or  colorable  imitation  shall,  without  license  of  the  owner,  have 
been  applied,  knowing  that  the  same  has  been  so  applied.  Any 
person  violating  the  provisions,  or  either  of  them,  of  this  section, 
shall  be  liable  in  the  amount  of  two  hundred  and  fifty  dollars; 
and  in  case  the  total  profit  made  by  him  from  the  manufacture 
or  sale,  as  aforesaid  of  the  article  or  articles  to  whicli  the  de- 
sign, or  colorable  imitation  thereof,  has  been  applied,  exceeds 
the  sum  of  two  hundred  and  fiifty  dollars,  he  shall  be  further 
liable  for  the  excess  of  such  profit  over  and  above  the  sum  of 
two  hundred  and  fifty  dollars.  And  the  full  amount  of  such 
liability  may  be  recovered  in  any  circuit  court  of  the  United 
States  having  jurisdiction  of  the  parties,  eitlun-  by  action  at 
law  or  upon  a  bill  in  equity  for  an  injunction  to  restrain  nucIi 
infringement. ' '  ^ 

The  damages  and  profits  Avhich  are  assessed  upon  an  infringe- 
ment of  a  patent  are  distinct  from,  and   independent  of  each 

2U.    S.   §4921,   as   amended   Mar.  3  24   St.    at    L.    ;:87,   ili.    105,    §  1, 

3,  1897,  ;59],   §6,  29   St.   at  L.   694,       Coiny.   St.   S  9476.     . 
Comp.  St.    §9468. 


1902 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§  389e 


other.  They  are  governed  by  different  principles  and  the  allow- 
ance of  one  does  not  preclude  recovery  of  the  other.*  The  law 
does  not  permit  a  duplication  in  damages  of  what  has  been 
recovered  in  profits.^  When  the  profits  made  by  the  defendant 
are  in  excess  of  the  complainant's  damages  the  complainant 
cannot  recover  damages  in  addition  to  profits.®  It  does  not 
follow  that  no  damages  are  recoverable  because  no  profits  weve 
realized.''  The  usual  measure  of  damages  is  either  the  loss  of 
complainant's  sales  caused  by  the  infringement,^  or  a  reasonable 
royalty  upon  the  sales  made  by  the  defendant.^ 

When  the  plaintiff  has  been  accustomed  to  grant  licenses  to 
others,  the  established  royalty  can  be  proved  as  a  basis  for  the 
measure  of  damageSj^*^  even  though  the  license  fees  were  not 
always  exactly  the  same.^^  But  the  plaintiff  is  not  compelled 
to  allow  as  a  standard  for  comparison  the  royalties  paid  by 
auxiliary  companies  with  exclusive  licenses  for  different  terri- 
tories who  incurred  expense  in  introducing  and  exploiting  the 
patented  articles.*^  Nor  on  the  other  hand  can  he  thus  use 
a  so-called  royalty  which  included  the  rest  of  a  machine.** 

In  the  absence  of  other  evidence  there  is  no  presumption  that 
those  who  bought  the  infringing  articles  would  have  purchased 
those  made  by  the  plaintiff,  had  there  been  no  infringement,** 
although  the  complainant  had  facilities  in  his  factory  for  mak- 
ing the   articles   made    and  sold   by   defendant ;  *^   where   the 


4  Beach  v.  Hatch,  153  Fed.  763; 
Underwood  Typewriter  Co.  v.  C.  E. 
Stearns,   C.   C.  A.,  227  Fed.  74,  82. 

5  Yesbera  v.  Hardesty  Mfg.  Co., 
C.  C.  A.,  166  Fed.  120;  Underwood 
Typewriter  Co.  v.  C.  E.  Stearns  & 
Co.,  C.  C.  A.,  227  Fed.  74,  82. 

6  Expanded  Metal  Co.  v.  General 
Fireproofing  Co.,  247  Fed.  899;  see 
McKee  Glass  Co.  v.  H.  C.  Fry  Glass 
Co.,  C.  C.  A.,  248  Fed.  125. 

7  Underwood  Typewriter  Co.  v.  C. 
E.  Stearns,  C.  C.  A.,  227  Fed.  74, 
82. 

8  Dowagiac  Mfg.  Co.  v.  Minne- 
sota Moline  Plow  Co.,  235  U.  S. 
641,  648. 

9  Ibid. 

10  Phillip  V.  Knock,  17  Wall.  460, 


462;  Birdsall  v.  Collidge,  93  U.  S. 
64,  70;  Clark  v.  Wooster,  119  U. 
S.  332,  326;  Tilman  v.  Proctor,  123 
U.  S.  136,  143. 

11  Consolidated  Eubber  Tire  Co. 
V.  Diamond  Rubber  Co.,  C.  C.  A., 
232  Fed.  475. 

12  Reliance  Const.  Co.  v.  Hassam 
Paving  Co.,  C.  C.  A.,  248  Fed.  701. 

13Consol.  Rubber  Tire  Co.  v. 
Diamond  Rubber  Co.,  226  Fed.  455, 
457. 

14  Underwood  Typewriter  Co.  v. 
C.  F.  Stearns,  C.  C.  A.,  227  Fed. 
74,  83. 

15  U.  S.  Frumentum  Co.  v.  Lau- 
hoff,  C.  C.  A.,  216  Fed.  610.  But 
see  Stockham  v.  Duncan,  226  Fed. 
740,  743. 


§  389e] 


DAMAGES  IN  PATENT  CASES 


1903 


articles  were  sold  in  competition  with  others  not  infringements 
which  served  tlie  same  purpose.^^ 

Where  the  infringement  consisted  in  the  use  of  the  invention 
the  complainant  must  show  that  the  defendant  on  the  balance 
of  preference  would  have  preferred  his  invention  with  its  ap- 
pendant cost  to  the  alternative  open  to  him.^'^     In  the  choice 
between  such  alternatives  the  royalties  necessary  to  secure  their 
use  must  be  considered. ^^     It  has  been  said,  that  "it  makes  no 
difference  whether  the  supposed  patented  standard  of  compari- 
son is  owned  by  the  plaintiff  or  third  parties.    The  point  is  that 
the  existence  of  a  monopoly  over  such  a  standard  is  a  relevant 
fact  in  considering  the  preference  between  them."  ^^    Where  the 
infringing  article  was  a  special  apparatus  and  it  did  not  appear 
that  anything  else  accomplishing  the  same  purpose  or  generally 
similar  was  on  the  market,  the  profits  which  plaintiff  would 
have  made  had  he  sold  all  that  were  sold  by  the  defendant  may 
be  allowed.^"     Testimony  that  defendant's  customers  had  for- 
merly bought  from  plaintiff  or  were  in  a  territory  where  plain- 
tiff was  making  sales  may  be  considered.^i    Where  the  defendant 
before  the  infringement  bought  the  patented  article  from  the 
plaintiff,  whose  business  was  previously  established  and  flourish- 
ing, and  the  business  substantially  diminished  during  the  in- 
fringing period,  its  loss  of  profits  to  an  amount  equal  to  the 
defendant's  sales  may  be  allowed. 22     But  the  court  refused  to 
make  such  a  presumption   from  the  previous  sales  when  the 
defendant  was  a  partner  of  the  complainant.^^     Where  there 
are  several  competitors,  statements  to  plaintiff's  salesmen  by 
those  to  whom  they  offered  his  patented  articles  are  admissible 
to  show  why  sales  were  not  made ;  but  the  defendant  should  be 


16  Underwood  Typewriter  Co.  v. 
C.  E.  Stearns,  C.  C.  A.,  227  Fed. 
74,  83. 

17  Page  Maeh.  Co.  v.  Dow,  Jones 
&  Co.,  238  Fed.  369,  373. 

18  Ibid. 

19  Page  Mach.  Co.  v.  Dow,  Jones 
&  Co.,  238  Fed.  369,  373. 

20  Gould  V.  Cowing,  105  U.  S. 
253,  26  L.  ed.  987;  U.  S.  Frumen- 
tum  Co.  V.  Kauhoff,  C.  C.  A.,  216 
Fed.  610,  614;  Stockham  v.  Duncan, 


C.  C.  A.,  226  Fed.  740,  741,  744. 

21 U.  S.  Frumentum  Co.  v.  Lau- 
liofF,  C.  C.  A.,  216  Fed.  610,  614. 

22Bemis  Car  Box  Co.  v.  J.  G. 
Brill,  C.  C.  A.,  200  Fed.  749,  758; 
Creamer  v.  Bowers,  35  Fed.  306; 
Rose  V.  Hirsh,  C.  C.  A.,  94  Fed. 
177,  51  L.R.A.  801. 

23  Clarke  v.  Schieble  Toy  &  Nov- 
elty Co.,  C.  C.  A.,  248  Fed.  276, 
279. 


1001 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§389e 


allowed  to  contradict  this  by  the  testimony  of  tlie  same  persons 
duly  offered  to  show  their  reasons  for  buying.^* 

In  fixing  the  selling  price  for  the  purpose  of  determining 
the  complainant's  damages,  the  master  may  in  the  absence  of 
other  controlling  circumstances  include  with  the  infringing 
period  the  years  immediately  preceding  and  take  the  average 
selling  price  during  such  time.^^  The  actual  cost  paid  by  plain- 
tiff unless  unreasonable  or  likely  to  be  reduced  by  an  increased 
quantity  of  orders  should  be  deducted.^^  A  manufacturer's 
profit  of  ten  per  cent  has  been  included  in  the  deduction.^"'' 

In  computing  the  profits  which  plaintiff  lost,  payments  for 
excessive  advertising  caused  by  the  competition  of  the  infringing 
articles  should  not  be  deducted  when  the  normal  advertising 
expense  was  proved  but  it  was  held  that  damages  could  not  be 
allowed  for  increased  advertising,  since  the  plaintiff  might  have 
realized  a  benefit  then.^^ 

Where  the  damages  are  measured  by  the  loss  of  royalty, 
interest  is  allowed  from  the  time  it  Avoukl  regularly  have  been 
paid,  usually  from  the  end  of  each  year.^^  Where  the  measure 
of  damages  is  loss  of  the  profits  of  sales,  interest  thereupon  is 
allowed  from  the  filing  of  the  master's  report.^"  Where  the  dam- 
ages are  trebled,  interest  is  allowed  only  on  the  increase.^^ 
Where  there  was  no  established  royalty,  nor  proof  of  loss  of 
sales  caused  by  the  infringement  the  measure  of  damages  is 
such  a  sum  as  under  all  the  circumstances  would  have  been  a 
reasonable  royalty  for  the  defendant  to  have  paid.32    Evidence 


24  J.  D.  Eandall  Co.  v.  Fogelsong 
Maeh.  Co.,  C.  C.  A.,  216  Fed.  601. 

25  Bemis  Car  Box  Co.  v.  J.  B. 
Brill,  C.  C.  A.,  200  Fed.  749,  756, 
764. 

'  26  Continuous  Glass  Press  Co.  v. 
Schmertz  Wire  Glass  Co.,  219  Fed. 
199;  Consol.  Eubber  Tire  Co.  v. 
T)iamond  Rubber  Co.,  226  Fed.  455; 
458. 

87  Bemis  Car  Box  Co.  v.  G.  J. 
Brill,   C.   C.   A.,  200   Fed.   749,   758. 

23  Anti-Vaeuum  Freezer  Co.  v. 
William  A.  Sexton  Co.,  250  Fed. 
4.".7. 

29  Tilgham    ▼.   Proctor,   125  U.   S. 


136,  143;  Munising  Paper  Co.  v. 
Am.  Sulphite  Pulp  Co.,  C.  C.  A., 
228  Fed.  700,  708;  in  B.  F.  Good- 
rich Co.  V.  Consol.  Rubber  Tire 
Co.,  C.  C.  A.,  251  Fed.  617,  624, 
an  average  royalty  for  a  period  of 
ten  years  was  fixed  and  the  interest 
did  not  run  until  the  end  of  the 
period-. 

30  Auto  Vacuum  Freezer  Co.  v. 
William  A.  Sexton  Co.,  250  Fed. 
459. 

31  Ibid. 

32  Suffolk  Co.  V.  Hayden,  3  Wall. 
:U5,  18  L.  ed.  76;  Hunt  v.  Cassi- 
day,  C.   C.   A.,   64  Fed.   584;   Dowa- 


;>  ;i89e]  DAMAGES  IN   PATENT  CASES  1^05 

can  be  eonsidcM-od  which  shows  the  utility  and  advantage  of  the 


giac    Mfg.    Co.    V.    Miniu'sota    Mol- 
iiic    Plow   Co.,    2;{r,    U.   S.    649;    Mc- 
Kuen  V.  B.  &  O.  R.  R.  Co.,   C.   C. 
A.,    154    Fed..  63;    B.    F.    Goodrich 
Co.     V.    Consol.     Rubber    Tiro     Co., 
C.    C.   A.,   251    Fed.    617,    621,   622, 
per    Evans,    J.:     "It    is    well    nigh 
inconceivable    that    this    large    and 
successful    business    concern    should 
engage    in    this    unlawful    business, 
year  after  year,   in   defiance   of  the 
patentee 's    rights    with    a    suit    for 
damages    pending,    if    the    business 
was    conducted    at    a    loss.      It    is 
highly  improbable  that  this  concern, 
with    its   record    of   success    and    its 
stupendous  figures  of  net  profits  for 
ten  years  would  have  conducted,  as 
part    of   that   most   successful   busi- 
ness, a  branch  of  no  inconsiderable 
size   that   was»  run   at   a   loss.    Nor 
should  appellees  be  compelled  to  go 
forth  without  relief,  if  there  be  any 
other   reasonable   basis   for   measur- 
ing  damages   simply   because   appel- 
lant has  so  kept  its  books,  that  the 
court,  as  the  master  found,  is  unable 
to  accept  its  figures,  and  unable  to 
det'.'rmine     from     these     books     the 
profits  actually  enjoyed."    Clark  v. 
Schieble    Toy    &    Novelty    Co.,    248 
Fed.    276,    282,    283,    per    Warring- 
ton,   J.:     "The    value    as    well    as 
the   earning   capacity   of   the   power 
device     may,     however,     be     safely 
based   on   the   average   profit  earned 
upon    each    of    the    toys    containing 
that   device   during  the   non-infring- 
ing period.     As  it  seems  to  us,  that 
is    the    normal    period    from    which 
such  value  is  to  be  derived ;   it  was 
the    time    in    which    Clark,    as    well 
as    Schieble    devoted    his    unbiased 
efforts  to   ascertain   the   utility   and 
advantage     of     the     invention,     the 
power   device,    'over   the   old   modes 


or    devices    for    working    out    simi- 
lar   results. '      Considering    the    op- 
posed  accountants'   estimate   of   the 
net    profits   earned   by    the   partner- 
ship   during    its   life    of    five    years, 
in   connection    with    the   number   of 
toys  the  firm  produced  in  that  time 
containing    the    power    device,    and 
giving  effect  to  the  rule   of   appor- 
tionment   and    considering   also    the 
tortious  character  of  the  taking  and 
the    value    of    the    cultivated    trade 
field     which     Schieble     had     bought 
from    the    partnership,    we    conclude 
that  a  conservative  estimate  of  the 
value  of  the  patent  property  taken, 
or   of   the  earning  capacity  of  that 
property,  is  21  cents  per  dozen  toys, 
or    1%    cents    each,    one    size    and 
style  with  another.     By  either  name 
(value    of    property   or    earning   ca- 
pacity)    we     merely     describe     the 
damage  suffered  by  complainant  re- 
iluced   to  a   unit  basis.     We  do  not 
see    that    it   would    be    improper    to 
call    this    a    royalty,    whether    fixed 
by  a  court  or  jury  after  the  event, 
instead    of    by    the    parties    in    ad- 
vance;    the    name    is    immaterial." 
Lee    V.    Malleable    Iron    Range   Co., 
247   Fed.  795,  806.     "Now,  if  the 
idea    of   a    reasonable   royalty  as   a 
measure  of  damage  to  a  patentee  is 
at  all  analogous  to  other  situations 
where   the  law  imports   'reasonable- 
ness'   as    an    element,   then    the    de- 
gree to  which  the  act  of  the  wrong- 
doer has  been  jjrofitable  or  unprofit- 
able   to    himself    cannot    be    a    con- 
trolling   test.      When    therefore    the 
fact  that  defendant  is  shown  to  have 
made   $47,000   'profits,'  apportioned 
as  'legally  attributable'  to  the  em 
bodiment    of    the    invention    in    the 
combination  structures  made  by  him 
cannot    limit    the    proofs    in    their 


1906 


PROCEEDINGS  IN  A  MASTER'S  OFFICE 


[§  389e 


invention  in  producing  a  similar  resiilt.^^  Where  there  has 
been  no  established  royalty,  proof  may  be  offered  to  show  what 
would  have  been  a  reasonable  royalty  considering  the  nature 
of  the  invention,  its  utility  and  advantages  and  the  extent  of 
the  use  involved.^*    The  testimony  of  experts  properly  qualified 


legitimate  tendency  —  as  it  may 
develop — to  either  a  larger  or 
smaller  amount  as  reasonable  roy- 
alty damage.  True,  profits  actu- 
ally made  may  be  considered;  but 
that  their  amount  must  be  taken 
as  the  test  of  reasonableness,  or 
that  profitless  infringing  just 
negative  damage  by  defeating  the 
exaction  of  a  reasonable  royalty  by 
a  patentee,  is  no  more  possible  in 
measuring  damages  in  respect  of 
infringement,  than  would  be  the 
attempt  of  a  lessee  at  will  or  suf- 
ferance to  limit  or  defeat  reason- 
able recovery  by  proving  his  occu- 
pation of  the  tenement  to  have  re- 
sulted in  little  or  no  profit  to  him. 

"When,  therefore,  the  restriction 
contended  for  cannot  be  recognized 
and  the  inquiry  is  subject  to  be 
tested,  not  by  the  infringer's 
'legally  attributable'  profits,  but 
rather  by  the  character  and  value 
of  the  patentee's  property  right 
and  damage  to  him  by  its  invasion 
or  appropriation,  the  master  was 
bound  to  resort  to  the  large  range 
of  testimony  pertinently  bearing 
upon  the  reasonable  amount  to  be 
awarded.  In  the  discharge  of  that 
duty  he  rightfully  considered  every- 
thing disclosed  in  this  litigation 
which  had  a  tendency  to  establish 
that  Beckwith's  invention  was  a 
highly  important  and  valuable  con- 
tribution to  the  art,  its  creation  of 
profits  actually  made  by  defendant 
upon  its  embodiment  in  infringing 
structures,  its  efficacy  to  contribute 
directly  or  indirectly,  and  its  actual 


direct  or  indirect  contribution  to 
the  success  of  the  infringer's  busi- 
ness of  manufacturing  and  selling 
reservoir  ranges,  and,  generally,  its 
value  as  property,  to  the  end  of 
ascertaining  the  reasonable  value  of 
its  use  or  the  exercise  of  the  rights 
growing   out  of  it. 

' '  Certainly  the  defendant 's  con- 
duet  and  actual  experience  during 
the  infringing  period,  insofar  as 
it  disclosed  its  own  estimate  of  the 
importance  and  value,  and  the 
court's  adjudication  respecting  the 
merit,  of  the  invention  have  persua- 
sive bearing  upon  this  matter,  which 
is  at  the  bottom  of  the  inquiry. 
Admittedly  the  plaintiff  may  not 
have  resorted  to  evidence  sometimes 
offered  to  prove  reasonable  royalty 
— he  may  not  have  been  able  to — 
but  he  did  not  bar  resort  to  '  other 
available,  pertinent  proofs.'  Fru- 
mentum  v.  Lauhoff,  216  Fed.  610, 
1.32  C.  C.  A.  614.  So,  when  the 
plaintiff  offered  the  opinions  of 
one  qualified  by  experience  to  speak 
directly  to  the  matter  of  reasonable 
royalty,  when  the  wide  range  of 
testimony  in  the  record  is  appealed 
to,  the  case  in  my  judgment  pre- 
sents a  great  array  of  facts  and 
circumstances,  not  only  competent, 
but  persuasive,  to  support  the  award 
made  by  the  master." 

33  Suffolk  Co.  V.  Hayden,  3  Wall. 
315,  18  L.  ed.  76;  MeCune  v.  B. 
&  O.  E.  E.  Co.,  154  Fed.  63;  Be- 
mis  Car  Box  Co.  v.  J.  G.  Brill  Co., 
200   Fed.   749,   759. 

34Dowagiac   Mfg.    Co.    v.    Minne- 


§  389e] 


DAMAGES  IN  PATENT  CASES 


1907 


may  be  considered.^^    There  is  no  reason  why  the  same  results 


sota  Moline  Plow  Co.,  235  U.  S. 
641,  648;  Hunt  v.  Cassidy,  C.  C. 
A.,  64  Fed.  584,  587;  Cassidy  v. 
Hunt,  75  Fed.  1012;  McCune  v. 
Baltimore  &  Ohio  R.  R.  Co.,  C.  C. 
A.,  154  Fed.  63;  Bemis  Car  Co.  v. 
Brill  Co.,  C.  C.  A.,  200  Fed.  749; 
U.  S.  V.  Frumcntum  Co.  v.  Lauhoff, 
C.  C.  A.,  216  Fed.  610. 

35  U.  S.  Frumentum  Co.  v.  Lau- 
hoff,  C.  C.  A.,  216  Fed.  610,  617, 
per  Dennison,  J.:  "We  can  see  no 
reason  why  the  owner  of  patent 
may  not  be  compensated  upon  the 
same  principles  or  why  the  perfect 
analogy  between  the  rules  of  dam- 
ages as  to  general  property  and  as 
to  patent  property  which  apply  with 
reference  to  market  value  and  with 
reference  to  lost  sales  should  be 
discarded  when  we  come  to  what 
may,  for  convenience,  be  called  gen- 
eral damages.  The  jury,  in  a  patent 
case  can  be  shown  what  plaintiff 's 
patent  property  was,  to  what  extent 
defendant  has  taken  it,  its  useful- 
ness and  commercial  value  as  shown 
by  its  advantages  over  other  things 
and  by  the  extent  of  its  use  and 
as  shown  by  profits  and  savings 
which  could  be  made  upon  its  sale 
or  adoption.  The  jury  can  learn 
how  much  of  the  realized  profit 
should  be  credited  to  the  manufac- 
turing process  and  business  risk  and 
how  much  to  the  patent,  also,  what 
share  of  the  profits  of  the  selling 
price  it  may  be  customary  in  that 
or  similar  business  to  allow  for  the 
use  of  such  an  invention.  Experts 
may  be  amply  qualified  to  give  use- 
ful opinions  as  to  the  value  of  the 
jiroperty  which  is  to  be  appraised. 
More  or  less  of  these  things  may 
appear  in  a  given  case,  all  having 
a  bearing  on  the  real  value  of  that 


for  which  plaintiff  is  to  be  compen- 
sated and  the  case  presents  no 
greater  difiiculty  in  computing  and 
ascertaining  damages  than  is  met 
by  a  hundred  juries  every  day. 
This  damage  or  compensation  is  not, 
in  precise  terminology  a  royalty  at 
all,  but  it  is  frequently  spoken  of 
as  a  'reasonable  royalty';  and 
this  phrase  is  a  convenient  means 
of  naming  this  particular  kind  of 
damage.  It  may  also  be  well  called 
'general  damage';  that  is  to  say, 
damage  not  resting  on  any  of  the 
ai)plicable,  exact  methods  of  com- 
putation 1)ut  upon  facts  and  cir- 
cumstances which  permit  the  jury  or 
court  to  estimate  in  a  general,  but 
in  a  suflSciently  accurate,  way  the 
injury  to  plaintiff  caused  by  each 
infringing  sale."  Lee  v.  Malleable 
Iron  Range  Co.,  247  Fed.  795. 
"Whatever  may  be  the  applicability 
of  this  standard  of  comparison 
rule  to  other  situations  there  ought 
to  be  at  least  hesitation  in  adopt- 
ing it  where  profits  have  been  fig- 
ured and  apportioned  without  its 
aid.  The  obvious  danger  of  at- 
tempting to  measure  recovery  not 
liy  what  the  infringer  as  a  manu- 
facturer or  seller  in  fact  made  as 
a  manufacturer 's  and  seller 's  profit 
on  the  particular  combination,  but 
by  the  gain,  if  any,  as  compared 
with  what  he  would  have  made,  had 
he  manufactured  something  which 
he  might,  but  did  not,  make — the 
obvious  danger  involved  is  this:  It 
introduces  a  conjectural  basis  of 
evidence;  it  compels  assumptions 
which  are  repugnant  to  the  very 
purpose  of  giving  relief  to  the  pat- 
entee for  the  appropriation  which 
the  infringer  for  some  reason 
chose.      It    compels    comparison    of 


1908 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§389e 


what  he  actually  did,  as  against 
a  standard  which  he  chose  not  to 
follow;  it  gives  prominence  to  what, 
but  for  the  invention,  he  might 
have  done,  thereby  to  get  the  meas- 
ure or  value  of  what,  apparently 
because  of  the  invention,  he  did  do. 
In  other  words,  the  realm  of  specu- 
lation is  explored  collaterally  in- 
quired into,  with  the  inevitable  re- 
sult of  always  finding  some  stand- 
ard which  will  lead  to  nominal  re- 
coveries: a  practical  result  of  treat- 
ing the  infringement  or  appropria- 
tion as  a  mere  fortuity,  a  mere 
accident  of  making  a  selection  of 
one  out  of  several  equally-  desirable 
courses  to  pursue.  In  further  con- 
sideration of  this,  let  it  be  assumed 
that  the  very  reservoir  suggested 
by  the  defendant  as  standards  of 
comparison  could  have  been  made 
at  precisely  the  same  or  at  variant 
costs;  the  infirmity  of  the  rule — 
the  injustice,  I  believe,  of  its  at- 
tempted application — rests  in  the 
added  hypothesis  or  assumption 
that,  had  any  other  been  chosen, 
it  would  have  achieved  correspond- 
ing results  in  respect  of  the  num- 
ber of  infringing  reservoirs  which 
the  defendant  in  fact  made  and 
sold.  In  this  way,  although  the 
whole  manufacture  and  resulting 
trade  may  have  been  bottomed  upon 
the  actual  and  commercial  merit  of 
the  appropriated  invention,  an  in- 
fringer may  still  retain  his  gains 
and  go  acquit,  except  for  nominal 
recovery,  because  he  can  show  that 
he  gained  or  saved  or  profited  no 
more  than  his  competitors  in  their 
manufacture  and  sales  of  'what  he 
would  have  been  free  to  make  and 
sell,  but  did  not.'  The  proof  may 
be    overwhelming   that    the    particu- 


lar infringer,  in  the  course  of  his 
manufacture  and  sale,  not  only  met 
competition,  but  distanced  it,  by 
creating  a  greater  commercial  favor 
for  tlie  infringing  article,  yet  so 
lo)ig  as  he  can  show  that  he  made 
no  more  money  than  he  would  have 
made,  had  he  followed  the  course 
of  his  competitors,  he  may  retain 
his  gains  because  this  enables  him 
to  say  that  he  made  nothing  out 
of  the  invention.  It  results  in 
denial  of  gains  by  an  infringer  who 
is  fortunate  enough  to  have  actual 
or  possible  competitors  in  the  same 
general  line  through  whom  and 
whose  experience  he  can  place  be- 
fore the  court  an  hypothesis  which 
after  all  enables  him  to  travel  in 
a  circle  on  this  matter  of  gains  and 
profits.  I  believe  that  the  matter 
may  be  stated  in  another  way :  A 
basic  infirmity  of  the  so-called 
rule  of  comparison  resides  in  the 
effort  to  fasten  upon  the  words  'at- 
trilnitalile  to  the  invention'  a  mean- 
ing which,  with  the  aid  of  this 
rule,  can  never  be  satisfied,  except 
liy  showing  increased  profits  on  the 
individual  infringing,  as  against 
tlie  '  standard, '  structure.  Where- 
as, the  invention  and  the  endeavors 
of  the  inventor,  not  only  may  have 
been  designed  and  exerted  to  in- 
crease, but  actually  do  increase, 
cost  and  thereby  reduce  profits, 
wliich  reduction  is  expected  to  find 
compensation  either  in  increased 
sale  price  or  increased  volume  of 
Inisiness,  or  not  at  all;  or  that  they 
were  calculated  either  to  reduce  or 
increase  in  like  proportion  cost  of 
manufacture  and  sale  price  and 
thereby  maintain  tlie  same  profit  as 
was  earned  upon  the  unpatented  or 
unimproved     structure.        In     other 


389e] 


DxVMAGES  IN  PATENT  CASES 


1909 


should  not  prevail  before  a  master  as  before  a  jiu-y.^e  a  verdict 
fixing  damages  for  eacli  infringing  device  was  held  to  be  no 
evidence  that  the  damages  for  suljseciucnl  infringements  Mere 
of  the  same  amount.^''' 

Increased  damages  under  the  statute  will  he  awarded  wlini 
the  infringement  was  deliberate,^^  but  not  when  it  was  made  in 
good  faith. 39  Evidence  that  at  the  time  of  llie  infringement 
the  patent  was  contested  by  others  as  well  as  by  the  defendant 


words,  the  'standard'  itself,  its 
high  cost  of  manufacture  and  its 
liigli  iirico,  its  profits  yield,  to  say 
nothing  of  its  inferiority,  may  have 
prompted  the  inventor  in  his  ef- 
forts, by  more  improvement,  to  less- 
en the  cost  of  making,  the  price, 
the  yield,  as  well  as  to  do  some- 
thing new  and  useful.  So,  too, 
as  bearing  upon  this  question  of 
relevancy,  these  further  considera- 
tions are  not  to  be  overlooked.  The 
infringer,  ])resumably,  knows  the 
'  standard '  and  its  yield  of  profits 
liut  he  also  can  and  does  fix  and 
control,  not  only  the  cost,  but  the 
sale  price,  of  the  infringing  struc- 
ture, and  thereby  its  yield.  There- 
fore, it  is  within  his  power,  at  all 
times,  by  contenting  himself  with 
a  yield  equal  to  or  smaller  than 
that  of  the  '  standard, '  to  escape 
accounting  for  profits  'attributable' 
to  the  invention;  and  though,  by 
greatly  reducing  his  yield  upon  the 
particular  structure,  he  may,  as 
stated,  by  a  greatly  increased  vol- 
ume of  manufacture  and  sale,  in- 
crease his  aggregate  yield  of  profits. 
True,  while  he  may  not  create  or 
control  the  'open'  or  'standard' 
structure,  or  its  yield,  yet  he  can 
by  his  own  conduct,  at  will,  frus- 
trate the  probative  force  or  effect 
of  the  'standard'  and  hence  the 
result  of  a  'comparison.'  Or,  as 
indicated,  assuming  that  he  might 
Fed.  Prac.  Vol.  TI— .Ki 


ba  quite  innocent  respecting  the 
standard,  his  whole  endeavors  may 
have  been  exerted,  his  whole  profits 
may  have  been  earned,  in  his  esti- 
mate of,  and  upon  the  public  's  faith 
in,  the  'improvement';  he  still  has 
the  right  under  this  rule,  to  learn, 
in  an  accounting  suit  that  he  in 
fact  made  his  profit  in  spite  of,  not 
because  of,  the  'improvement.'  " 

36  Locomotive  Co.  v.  Pennsyl- 
vania Co.,  2  Pel.  t)77,  682;  U.  S. 
Frumentum  Co.  v.  Lauhoff,  C.  C. 
A.,  216  Fed.  610,  625.  In  Consol. 
Rul)ber  Tire  Co.  v.  Diamond  Rub- 
l)er  Co.,  226  Fed.  4.'.."i,  45t>,  per 
Learned  Hand,  J.:  "I  am  quite 
aware  that  in  these  matters  we 
are  not  able  to  tell  with  accuracy 
vvhat  the  reasonable  jirolits  or  rea- 
sonable royaltie.s  would  be;  but  we 
can  meet  that  ditiiculty  by  taking 
only  most  conservative  estimates. 
This  is  becoming  the  tendency  of 
the  court  in  all  the  best  considered 
of    the    later   o])inions. " 

37("heatliam  Electric  Switching 
Device  Co.  v.  Transit  Development 
Co.,  C.  C.  A.,  261  Fed.  792. 

38  Consol.  Rubber  Tire  Co.  v. 
Diamond  Rubber  Co.,  C.  C.  A..  2:t2 
Fed.  tyn;  allirming  s.  c,  226  Fed. 
-(;">;■);  Anti-Vaiunm  Freezer  Co.  v. 
Wni.   A.   Sexton    Co.,   250   Fed.   457. 

29  Consol.  Rubber  Tire  Co.  v.  Dia 
mond     Rubber    Co.,    226    Fed.    455, 
464. 


1910 


PROCEEDINGS  IN  A  MASTER'S  OFFICE 


[§  389f 


may  be  a  grouud  for  refusing  to  increase  the  damages.*®  But 
a  continuance  of  the  infringement  after  adjudications  in  favor 
of  the  patent  may  be  a  sufficient  ground  for  the  increase.*^ 
And  an  attempt  to  obtain  a  patent  embodying  the  essential  *^ 
features  of  the  infringed  invention  may  be  considered.  Evi- 
dence that  the  defendant  enticed  skilled  workmen  from  the  com- 
plainant is  material.*^  Evidence  of  the  advice  of  counsel  that 
there  was  no  infringement  is  not  conclusive.'** 

§  389f .  Apportionment  of  liability  between  infringers.  Not- 
withstanding the  fact  that  the  two  parties  contributed  to  an 
infringement  so  that  they  may  be  joined  as  defendants  to  the 
same  suit  for  an  injunction,  an  accounting  and  damages,  they 
are  not  jointly  liable  for  damages  and  profits  except  those 
resulting  from  their  joint  acts.^  It  was  so  held  when  one  sold 
the  materials  and  the  other  manufactured  and  sold  the  infringing 
article,^  where  one  bought  and  sold  at  his  OAvn  prices  some  of 
the  articles  which  another  manufactured,^  and  in  the  case  of 
the  successive  owners  of  an  infringing  business.*  Where  de- 
fendant made  and  sold  to  manufacturers  an  article  fitted  and 
obviously  intended  for  use  as  a  component  part  of  an  infringing 
article,  upon  an  accounting,  he  has  the  burden  of  showing  that 
it  was  not  so  used.^  A  defendant  is  not  liable  for  damages  and 
profits  after  it  has  actually  turned  over  its  business  to  another.^ 
The  purchase  of  all  the  property  of  an  infringing  corporation 
does  not  under  ordinary  circumstances  before  judgment  and 
execution  against  the  vendor  make  the  vendee  liable  for  infringe- 


40  Ibid. 

41  Consol.  Eubber  Tire  Co.  v. 
Diamond  Eubb6r  Co.,  226  Fed.  455, 
464,  465,  -where  an  increase  of 
$50,000  was  made;  Lee  v.  Malle- 
able Iron  Eange  Co.,  247  Fed.  795. 

42  Lee  V.  Malleable  Iron  Eange 
Co.,  247  Fed.  795. 

43  Miner  v.  T.  H.  Symington  Co., 
C.  C.  A.,  247  Fed.  521. 

44  Lee  V.  Malleable  Iron  Eange 
Co.,  247  Fed.   795,  808. 

§  389f.  1  Vrooman  v.  PenhoUow, 
C.  C.  A.,  222  Fed.  894;  Underwood 
Typewriter  Co.  v.  C.  E.  Stearns  & 
Co.,   C.  C.  A.,  227  Fed.   74;   Young 


V.  Herman,  C.  C.  A.,  232  Fed.  361 ; 
Consol.  Eubber  Tire  Co.  v.  Goodrich 
Co.,   237   Fed.   893. 

2  Consolidated  Eubber  Tire  Co.  v, 

B.  F.  Goodrich  Co.,  237  Fed.  893. 
But  see  Barrett  v.  Sheaffer,  C.  C. 
A.,  251  Fed.  74. 

3  Underwood    Typewriter    Co.    v. 

C.  E.  Stearns,  C.  C.  A.,  227  Fed.  74. 

4  Young    V.    Herman,    C.    C.    A., 
232   Fed.    361. 

5  Consolidated  Eubber  Tire  Co.  v. 
Diamond  Eubber  Co.,  226  Fed.  455. 

6  Herman      v.      Youngstown      Car 
Mfg.  Co.,  C.  C.  A.,  216  Fed.  605. 


389g] 


ACCOUNTING    IN    COPYRIGHT    CASES 


inn 


ments  committed  before  the  saleJ  A  judgment  or  settlement 
against  an  infringer  for  the  profits  made  by  the  manufacture 
and  sale  of  the  infringing  articles  does  not  authorize  his  vendee 
to  continue  their  use  and  the  latter  is  liable  for  an  injunction 
and  an  accounting  for  the  profits  ^vhich  he  thus  makes.* 

A  judgment  against  and  settlement  with  the  manufacturer 
for  damages,  does  not  relieve  his  vendee  from  liability  for  dam- 
ages by  use  or  sale  of  the  infringing  article  ^  unless  there  was 
proof  that  the  purchasers  would  otherwise  have  taken  licenses 
from  the  patentee  in  which  case  damages  for  the  use  by  the 
latter  are  presumed  to  have  been  included  therein.^'* 

§389g'.  Accounting  for  profits  in  copyright  cases.  By  the 
Act  of  March  4,  1909,  the  infringer  of  a  copyright  is  liable  "to 
pay  to  the  copyright  proprietor  such  damages  as  the  copyright 
proprietor  may  have  suffered  due  to  the  infringement,  as  well 
as  all  the  profits  which  the  infringer  shall  have  made  from  such 
infringement,  and  in  proving  profits  the  plaintiff  shall  be  re- 
quired to  prove  sales  only  and  the  defendant  shall  be  required  to 
prove  every  element  of  cost  which  he  claims."  ^  The  statutory 
accounting  is  otherwise  regulated  by  the  usual  rules  of  equity .'^ 

When  the  infringement  constitutes  a  material  part  of  the 
defendant's  publication  and  is  so  intermingled  with  the  rest  that 
it  is  impracticable  to  separate  the  profits  derived  from  each, 
all  the  profits  made  by  the  sale  of  the  defendant's  book  may 
be  allowed.^    Where,  however,  as  in  the  case  of  a  single  illustra- 


7  Racine  Engine  &  M.  Co.  v.  Con- 
fectioners' M.  &  Mfg.  Co.,  C.  C. 
A.,  234  Fed.  876. 

8De  Laski  &  Thropp  C.  W.  T. 
Co.  V.  Empire  E.  &  T.  Co.,  239  Fed. 
139. 

9  Ibid. 

10  Ibid.  Stebler  v.  Riverside 
Heights  Orange  Growers'  Ass'n, 
211  Fed.  985. 

§  389g.  1  Ch.  320,  §  25,  35  St. 
at  L.  1081,  amended  Aug.  24,  1912, 
ch.  356,  37  St.  at  L.  489,  Comp. 
St.,   9546. 

2  Haas  V.  Leo  Feist,  Inc.,  234 
Fed.  105,  107,  as  to  limitations  and 
laches,  see  supra,  §§  180,  182. 


SCallaghan  v.  Myers,  128  U.  S. 
617,  32  L.  ed.  547,  9  Sup.  Ct.  Rep. 
177.  In  case  of  the  infringement  of 
a  copyright  controlling  the  parts  of 
instruments  serving  to  reproduce 
mechanically  a  musical  work,  the 
infringing  manufacturer  must  pay  a 
royalty  of  two  cents  on  each  such 
part  manufactured.  He  must  ac- 
count therefor  under  oath  on  the 
20th  of  each  month.  "In  case  of 
the  failure  of  such  manufacturer  to 
pay  to  the  copyright  proprietor 
within  thirty  days  after  demand  in 
writing  tlie  full  sum  of  royalties 
due  at  said  rate  at  the  date  of  such 
demand   the   court  may   award  tax- 


1912 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


§389g 


tion  in  a  book  or  newspaper,  the  piratical  matter  is  an  insig- 
nificant part  of  tlie  defendant's  publication,  it  is  very  doubtful 
whether  any  profits  can  be  allowed.*  The  complainants  may 
then  be  given  relief  by  an  award  of  damages  in  accordance  with 
the  statute.^  Where  a  play  was  a  violation  of  a  copyright  in  a 
story  the  owner  of  the  copyright  was  allowed  to  recover  all  the 
profits.^ 

Where  the  master  upon  an  accounting  makes  rulings  limiting 
the  scope  of  the  inquiry,  it  is  proper  to  apply  immediately  to  the 
court  for  the  instructions.'''  WHiere  an  accounting  of  profits  is 
made  by  the  infringement  of  a  patent  or  copyright,  the  infringer 
is  not  entitled  to  deduct,  from  the  profits  made  during  a  certain 
term,  a  loss  subsequently  incurred  in  a  separate  transaction. 
Losses  concurrent  with  the  profits  are  all  that  can  be  consid- 
ered.^  W^here  the  infringement  was  a  play  and  the  defendant 
had  made  its  contracts  by  the  theatrical  season,  each  season 
was  taken  as  a  unit  in  the  computation,  and  the  defendant  Avas 
disallowed  credits  against  the  profits  of  one  season  for  losses 
incurred  in  another.^  Where  the  complainant  has  failed  to 
publish  the  statutory  notice  he  cannot  recover  damages  from  an 
innocent  infringer, i®  nor  damages  in  lieu  of  profits,^^  but  it  has 
been  held  that  he  may  recover  any  profits  he  can  prove.*^  When 
the  copyright  notice  was  duly  published  absence  of  intent  on 
the  part  of  the  infringer  does  not  relieve  him  from  accounting 
for  his  profits. ^^ 


able  costs  to  the  plaintiff  and  a 
reasonable  counsel  fee;  and  the 
court  may,  in  its  discretion,  enter 
Judgment,  therein  for  any  sum  in 
addition  over  the  amount  found  to 
be  due  as  royalty  in  accordance 
with  the  terms  of  this  act,  not  ex- 
ceeding three  times  such  amount. ' ' 
Act  of  March  4th,  1909,  35  Stat, 
at  L.  1075,  Pierce's  Fed.  Code, 
Supp.  §  1578. 

4Lillard  v.  Sun  Printing  &  Pub. 
Ass'n,  87  Fed.   213. 

5  Infra,  §  389h. 

6  Dam  V.  Kirk  LaShelle  Co.,  C. 
C.  A.,  175  Fed.  902,  909;  Haas  v. 
Leo  Feist,  Inc.,  234  Fed.  105. 


7  Thompson  v.  Smith,  2  Bond  320 ; 
supra,   §  388a. 

8  Canada  Bros.  v.  Michigan  Mal- 
leable Iron  Co.,  C.  C.  A.,  152  Fed. 
178;  Dam  v.  Kirk  La  Shelle  Co., 
189  Fed.  842. 

9  Dam  V.  Kirk  La  Shelle  Co.,  189 
Fed.  842. 

10  Act  of  August  4,  1909,  ch. 
320,  §2,  35  St.  at  L.  1080,  Comp. 
St.  9541;  Alfred  Decker  Cohen  Co. 
V.  Etchinson  Hat  Co.,  225  Fed.  135. 

11  Strauss  v.  Penn  Printing  & 
Pub.  Co.,  220  Fed.  979. 

12  Ibid. 

13  Haas  V.  Leo  Feist,  Inc.,  234 
Fed.   105. 


§  889h]  i)\.\i  \(;i;s  ix  copyright  casks  li'l;> 

When  resales  have  been  made  of  second-hand  books  pun-hased 
subsequent  to  their  original  sale,  the  profits  of  the  second  sales 
should  also  be  included."  Amounts  received  fn^m  advertisers 
in  the  infringing  book  must  l)e  accounted  for.^^  Profits  may  be 
recovered  from  a  book  seller  who  has  received  commissions  up«ju 
sales  ^^  or  by  a  printer  and  binder.^''' 

In  determining  the  profits  that  are  to  be  allowed  tbe  com- 
plainant, the  actual  and  legitimate  manufacturing  cost  should 
be  deducted  from  the  gross  sales."  It  has  been  held  that  n(j 
credit  can  be  allowed  for  stereotyping  typewritten  matter  ^^ 
nor  for  editorial  work,^^  nor  for  an  excessive  .salary  paid  lo 
an  officer  of  the  infringing  corporation,^!  nor  for  salaries  paid 
members  of  an  infringing  tirm.22  An  apportionmeni  of  overhead 
charges  and  general  expenses  of  the  business  may  be  credited 
when  the  defendant  establishes  by  clear  proof  what  proportion 
should  be  allowed. ^^ 

§389h.  Assessment  of  damages  in  copyright  cases.  By  the 
Act  of  March  4,  1909,  the  infringer  of  a  copyright  protected 
under  the  laws  of  the  Tnited  States  is  liable  "(a)  To  an  in- 
junction restraining  such  infringement:  (bj  To  pay  to  the 
copyright  proprietor  such  damages  as  the  copyright  proprietor 
mav  have  suffered  due  to  the  infringement  as  well  as  all  the 
profits  which  the  infringer  shall  have  made  from  such  mfrmge- 
ment  and  in  proving  profits  the  plaintiflf  shall  be  required  to 
prove  sales  only  and  the  defendant  shall  be  required  to  prove 
every  element  of  cost  which  he  claims  or  in  lieu  of  actual 
damages  and  profits  such  damages  as  to  the  court  .shall  appear 
to  be  just,  and  in  assessing  such  damages  the  court  may,  in  its 

14  Callaghan  v.  Myers,  128  U.  S.  ing  defendant 's  claims  for  credit. 
617,  32  L.  cd.   5-47,  9  Sup.  Ct.   177.       Coiiroy  v.  Penn.  El.  &  Mfg.  Co.,  C. 

15  Hartford       Printing       Co.       v.       C.  A.,  199  Fed.  427. 

Hartford  Directory  &  Prl.   Co.,  148  19  Callaghan   v.   Myers,   128   U.   S. 

Ycd.   470.  617,   ;{2   L.   ed.   ^47.  9   Snj).   Ct.   177. 

16  Stevens    v.    Gladding,    2    Curtis  20  Ibid. 

608,  Fed.  Cas.  13,  399.  21  Dam    v.    Kirk    La    Shelle    Co., 

ITBilford   V.   Sorihner,   144   U.   S.  C.  C.   A.,  189  Fed.  842. 

488,  12  Sup.  Ct.  734,  36  L.  ed.  514.  22  Callaghan   v.  Myers,   12S   V.   8. 

18  Callaghan  v.   Myers,   128  U.   S.  617,  32  L.  ed.  547,  9  Sup.  Ct.   177. 

617,  32   L.  ed.   547,  9  Sup.  Ct.  177.  23  Dam   v.  Kirk  La  Shelle  Co.,  C. 

It   has   been   held    that   the   cost   to  C.    A..    189    Fe.l.    842.      See    supra, 

others    of    similar    work    is   inadmis-  §  3.S9i-. 

sible,  except  for  comparison  in  test- 


1914  PROCEEDINGS  IN  A  MASTER'S  OFFICE  [§  389h 

discretion  allow  the  amounts  as  hereinafter  stated,  but  in  case  of 
a  newspaper  reproduction  of  a  copyrighted  photograph  such 
damages  shall  not  exceed  the  sum  of  two  hundred  dollars  nor 
be  less  than  the  sum  of  fifty  dollars  and  in  the  case  of  the 
infringement  of  an  undramatized  or  nondramatic  work  by 
means  of  motion  pictures,  where  the  infringer  shall  show  that 
he  was  not  aware  that  he  was  infringing  and  that  such  infringe- 
ment could  not  have  been  reasonably  foreseen  such  damages 
shall  not  exceed  the  sum  of  one  hundred  dollars ;  and  in  the  case 
of  an  infringement  of  a  copyright  dramatic  or  dramatico-mu- 
sical  work  by  a  maker  of  motion  pictures  and  his  agencies  for 
distribution  thereof  to  exhibitors  where  such  infringer  shows 
that  he  was  not  aware  that  he  was  infringing  a  copyrighted  work, 
and  that  such  infringements  could  not  reasonably  have  been  fore- 
seen, the  entire  sum  of  such  damages  recoverable  by  the  copy- 
right proprietor  from  such  infringing  maker  and  his  agencies 
for  the  distribution  to  exhibitors  of  such  infringing  motion  pic- 
ture shall  not  exceed  the  sum  of  five  thousand  dollars  nor  be 
less  than  two  hundred  and  fifty  dollars,  and  such  damages  shall 
in  no  other  case  exceed  the  sum  of  five  thousand  dollars  nor  be 
less  than  the  sum  of  two  hundred  and  fifty  dollars  and  shall  not 
be  regarded  as  a  penalty.  But  the  foregoing  exceptions  shall  not 
deprive  the  copyright  proprietor  of  any  other  remedy  given  him 
under  this  law,  nor  shall  the  limitation  as  to  the  amount  of  re- 
covery apply  to  infringements  occurring  after  the  actual  notice 
to  a  defendant,  either  by  service  of  process  in  a  suit  or  other 
written  notice  served  upon  him. 

"First.  In  the  case  of  a  painting,  statue,  or  sculpture,  ten 
dollars  for  every  infringing  copy  made  or  sold  by  or  found 
in  the  possession  of  the  infringer  or  his  agents  or  employees; 

"Second.  In  the  case  of  any  work  enumerated  in  section 
five  of  this  Act,  except  a  painting,  statue,  or  sculpture,  one 
dollar  for  every  infringing  copy  made  or  sold  by  or  found  in 
the  possession  of  the  infringer  or  his  agents  or  employees ; 

"Third.  In  the  case  of  a  lecture,  sermon,  or  address,  fifty 
dollars  for  every  infringing  delivery; 

"Fourth.  In  the  case  of  a  dramatic  or  dramatico-musical 
or  a  choral  or  orchestral  composition,  one  hundred  dollars  for 
the  first  and  fifty  dollars  for  every  subsequent  infringing  per- 


§  389h]  DAMAGES   IN   COPYRIGHT   CASES  1915 

formance;  in  the  case  of  otlier  musical  compositions  ten  dollars 
for  eveiy  infringing  performance ; 

"(c)  To  deliver  up  on  oath,  to  be  impounded  during  the 
pendency  of  the  action  upon  such  terms  and  conditions  as  the 
court  may  prescribe  all  articles  alleged  to  infringe  a  copyright. 

"(d)  To  deliver  up  on  oath  for  destruction  all  the  infring- 
ing copies  or  devices  as  well  as  all  plates,  molds,  matrices  or 
other  means  for  making  such  infringing  copies  as  the  court 
may  order. 

"(e)  Whenever  the  owner  of  a  musical  copyright  has  used 
or  permitted  the  use  of  the  copyrighted  work  upon  the  parts 
of  musical  instruments  serving  to  reproduce  mechanically  the 
musical  work  then  in  case  of  infringement  of  such  copyright 
by  the  unauthorized  manufacture,  use  or  sale  of  interchange- 
able parts,  such  as  disks,  rolls,  bands,  or  cylinders  for  use  in 
mechanical  music-producing  machines  adapted  to  reproduce  the 
copyrighted  music,  no  criminal  action  shall  be  brought  b,ut  in 
a  civil  action  an  injunction  may  be  granted  upon  such  terms 
as  the  court  may  impose,  and  the  plaintiff  shall  be  entitled  to 
recover  in  lieu  of  profits  and  damages  a  royalty  as  provided 
in  section  one,  subsection  (e)  of  this  A«?t :  Provided  also.  That 
whenever  any  person,  in  the  absence  of  license  agreement,  in- 
tends to  use  a  copyrighted  musical  composition  upon  the  parts 
of  instruments  serving  to  reproduce  mechanically  the  musical 
work,  relying  upon  the  compulsorj^  license  provision  of  this 
Act,  he  shall  serve  notice  of  such  intention,  by  registered  mail, 
upon  the  copyright  office,  sending  to  the  copyright  office  a 
duplicate  of  such  notice;  and  in  case  of  his  failure  so  to  do 
the  court  may,  in  its  discretion,  in  addition  to  sums  hereinabove 
mentioned,  award  the  complainant  a  further  sum,  not  to  ex- 
ceed three  times  the  amount  provided  by  section  one,  subsec- 
tion (e)  by  way  of  damages  and  not  as  a  penalty,  and  also  a 
temporary  injunction  until  the  full  award  is  paid. 

"Rules  and  regulations  for  practice  and  procedure  under 
this  section  shall  be  prescribed  by  the  Supreme  Court  of  tlie 
United  States.  "^ 

§389h.  lAft  of  Maivh  4.  1909,  v.  Thomas  Pub.  Co..  C.  C.  A.,  242 
ch.  320,  §25,  .S5  St.  at  L.  1081,  Fed.  37,  40,  42.  "That  the  Ian- 
amended  Aiig.  24,  1912,  ch.  356,  guage  of  the  section  (25)  of  the 
37   St.   at  L.   489;    S.   E.   Hendricks  Copyright    Act    relating    to    the    as- 


1916 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§  389h 


"Where  the  copyright  proprietor  has  sought  to  comply  with 
the  provisions  of  this  Act  with  respect  to  notice,  the  omission 


sessment  of  damages  and  profits,  is 
'  somewhat  obscure '  we  have  pointed 
out  before.  Mail  &  Express  Co.  v. 
Life  Pub.  Co.,  192  Fed.  at  page 
901,  11.3  C.  C.  A.  377  at  page  378. 
The  relevant  words  of  the  statute 
are  that  the  infringers  shall  pay 
'  such  damages  as  the  profits  which 
the  infringers  shall  have  made  from 
such  infringement  *  *  *  or  in 
lieu  of  actual  damages  and  profits 
such  damages  as  to  the  court  shall 
appear  to  be  just ;  and  in  assess- 
ing such  damages  as  the  court 
may,  in  its  discretion,  allow  the 
amounts'  fixed  by  the  act,  etc. 
The  statute  then  specifies  certain 
limits  of  assessment  in  respect  of 
copyrighted  matters  relevant  to  this 
ease,  and  concludes :  '  And  same 
damages  shall  in  no  case  exceed  the 
sum  of  .$3,000  nor  be  less  than  the 
sum  of  $250  and  shall  not  be  re- 
garded  as  a  penalty. ' 

' '  The  same  section  gives  plain- 
tiff '  one  dollar  for  every  infringing 
copy  made  or  sold  by  or  found  in 
the  possession  of  the  infringer  or 
his  agents  or  employes '  in  respect 
of  books  such  as  are  here  in  ques- 
tion. 

"As  is  well  known,  the  language 
of  this  section  is  a  growth  of  years, 
resulting  from  the  efforts  of  Con- 
gress to  avoid  that  strictness  of 
construction  which  historically  at- 
taches to  any  statute  inflicting  pen- 
alties, and  to  confer  upon  an  in- 
jured copyright  owner  some  pecu- 
niary solace,  even  when  the  rules 
of  law  render  it  dififieult,  if  not  im- 
possible (as  it  often  is),  to  prove 
damages  or  discover  profits.  In  the 
Mail  &  Express  Co.  case,  supra, ' '  192 
Fed.  901,  "we  held  that,  in  respect 


of  an  infringing  publication,  coming 
under  the  same  general  category  as 
does  the  present  one,  $250  was  the 
minimum  amount  to  which  the  plain- 
tiff could  be  entitled.  In  Gross  v.  Van 
Dyk  Gravure  Co.,  230  Fed.  412,  144 
C.  C.  A.  554,  Hand,  J.,  in  the  trial 
court  held  that  the  duty  was  by  this 
statute  laid  upon  the  court  to  'es- 
timate damages '  in  place  of  the  '  old 
penalties,  *  *  *  but  to  estimate 
them  within  the  sums  given,  with- 
out the  limitations  of  usual  legal 
proof.  The  whole  course  of  copy- 
right law  shows  a  recognition  of 
the  difficulty  of  making  legal  proof 
of  damages  and  in  substituting  for 
the  rigid  penalties  the  discretionary 
power  of  the  court,  we  must  as- 
sume that  a  plaintiff  should  not  fail 
for  lack  of  proof. '  On  appeal  from 
that  construction  of  the  statute, 
this  court  approved  the  method  pur- 
sued. 

"That  the  statute  limits  the  dis- 
cretion of  the  court  to  a  minimum 
award  of  $250  and  a  maximum  of 
$5,000  in  lieu  of  actual  damages 
has  also  been  held  in  L.  A.  Wester- 
man  Co.  V.  Dispatch,  etc.,  Co.,  233 
Fed.  609,  147  C.  C.  A.  417  (C.  C.  A. 
6th).  In  Woodman  v.  Lydiard,  etc. 
Co.  (C.  C.)  192  Fed.  67,  (affirmed 
on  another  point  204  Fed.  921,  123 
C.  C.  A.  243,  and  205  Fed.  902, 
126  C.  C.  A.  434)  ;  Alfred  Becker, 
etc.  Co.  v.  Etchinson,  etc.  Co.,  225 
Fed.  135,  and  F.  A.  Mills  v.  Stand- 
ard, etc.  Co.,  223  Fed.  849,  sev- 
eral District  Courts  have  asserted 
a  larger  discretion ;  so  that,  where 
little  or  no  injury  appeared,  even 
nominal  damages  have  been  awarded 
for   proven  infringement. 

"There     may     be     circumstances 


§  389h] 


DAMAGES   IN   COPYRIGHT   CASES 


1!I17 


by  accident  or  mistake  ol'  the  preserihed  iiolice  from  a  i)ar- 
ticular  copy  or  copies  sliall  not  invalidate  the  copyri«i:ht  or 
prevent  recovery  for  infringement  against  any  person  who, 
after  notice  of  the  copyright,  I)egins  an  nndertaking  to  infriny;e 
it,  but  shall  prevent  tlie  recovery  of  damages  against  an  in- 
nocent infringer  who  has  been  misled  by  the  omission  of  the 
notice:  and  in  a  suit  for  infringement  no  permanent  injunction 
shall  be  had  unless  the  copyright  proprietor  shall  reimburse 
to  the  innocent  infringer  his  reasonable  outlay  innocently  in- 
curred if  the  court,  in  its  discretion  shall  so  direct."'^ 

The  liability  for  damages  exists  irrespective  of  the  knowl- 
edge of  the  copyright  or  intent  of  the  infringer.^  But  when 
the  statutory  notice  has  not  been  given,  no  damages  in  lieu  of 
profits  can  be  awarded.* 

The  word  "actual"  in  the  statute  means  real,  as  opposed  to 
nominal,  or  existent  without  precluding  the  thought  of  change.^ 


under  which  discretion  revolts  from 
any  award,  by  reason  of  the  trivial 
nature  of  the  thing  copyrighted  or 
the  slight  success  of  attempted  in- 
fringement; but  the  facts  of  this 
case  present  no  such  problem. 
That  keeping  plaintiff  out  of  a 
possible  market  for  2,800  copies  of 
its  own  publication,  by  the  issu- 
ance of  a  book  competitive  in  every 
sense  of  the  word,  works  some  con- 
siderable injury,  is  a  matter  too 
plain  to  require  more  than  state- 
ment. The  assessment  of  damages 
or  ascertainment  of  profits  under 
the  facts  hereinabove  recited  would 
be  not  only  difficult  but  expensive 
is  similarly  obvious.  We  entertain 
no  doubt  that  it  was  the  intention 
of  Congress  (1)  to  preserve  the 
right  of  a  plaintiff  to  ]>ursue  dam- 
ages and  profits  by  tlie  historic 
methods  of  equity  if  he  chooses  so 
to  do:  and  (2)  to  give  the  new 
right  of  application  to  the  court  for 
such  damages  as  shall  'appear  to 
be  just '  in  lieu  of  actual  damages. ' ' 
L.    A.    Westeniianii    Co.    v.    Dispatch 


Printing  Co.,  249  U.  S.  100,  106, 
107;  per  Van  Devanter,  J.:  "The 
court 's  conception  of  what  is  just  in 
the  particular  case,  considering  the 
nature  of  the  copyright,  the 
circumstances  of  the  infringement 
and  the  like,  is  made  the  measure 
of  the  damages  to  be  paid,  but  with 
the  express  qualification  tliat  in 
every  case  the  assessment  must  be 
within  the  prescribed  limitations, 
that  is  to  say,  neither  more  than 
the  maximum  nor  less  than  the 
minimum.  Within  these  limitations 
the  court 's  discretion  and  sense  of 
justice  are  controlling,  but  it  has 
no  discretion  when  proceeding  uiuler 
this  provision  to  go  outside  of 
them. ' ' 

2  Act  of  March   4,   1909,   ch.   320, 
§  20,  .So  St.  at  L.  1080. 

3  Haas    v.     Leo    Feist,    Inc.    2U 
Fed.  105. 

4  Strauss     v.     Penn     I'rinting     & 
Puhlishing  Co.,  220  Fed.  977. 

6  S.   E.    Hendricks  Co.   v.   Thomas 
Pub.    Co..   (".    C.    A.,   242   Fed.    37. 


1918 


PROCEEDINGS  IN  A  MASTER'S  OFFICE 


[§  389h 


The  phrase  "in  lieu"  means  in  place  of  the  actual  damages 
and  profits.^ 

It  has  been  held  that  where  the  evidence  shows  an  actual 
loss  of  more  than  five  thousand  dollars  the  whole  amount  which 
is  proved  can  be  recovered.' 

Where  obvious  and  substantial  pecuniary  injury  has  been 
caused  by  the  infringement,  the  minimum  reward  should  be 
$250.00  8  for  each  infringement  of  each  copyright  infringed.^ 
The  object  of  the  statute  in  this  respect  was  to  allow  the  court 
in  such  a  case  to  estimate  the  damages  within  the  sums  given, 
without  the  usual  limitations  of  legal  proof.^*"  It  has  been  held 
that  the  sum  of  one  dollar  for  each  infringing  copy,  made, 
sold  or  found  as  stated  in  the  statute,  is  not  a  minimum. ^^ 

It  was  said  in  an  English  ease,  "defendant  is  to  account  for 
every  copy  of  his  book  sold  as  if  it  had  been  a  copy  of  the 
plaintiff's,  and  to  pay  the  plaintiff  the  profit  which  he  would 
have  received  from  the  sale  of  so  many  additional  copies.  "^^ 


6  Ibid. 

7  Turner    &   Dahnken    v.    Crowley, 

C.  G.  A.,  252  Fed.  749. 

8  L.  A.  Westermann  Co.  v.  Dis- 
patch Printing  Co.,  249  U.  S.  100; 
see  S.  E.  Hendricks  Co.  v.  Thomas 
Pub.  Co.,  C.  C.  A.,  242  Fed.  37,  42. 

9  S.  E.  Hendricks  Co.  v.  Thomas 
Pub.  Co.,  C.  C.  A.,  242  Fed.  37,  42. 

lOOross  V.  Van  Dyke  Gravure 
Co.,  C.  C.  A.,  230  Fed.  412,  413, 
opinion    of    learned    Hand,    J.,    in 

D.  C.  S.  D.  N.  Y.;  S.  E.  Hendricks 
Co.  V.  Thomas  Pub.  Co.,  C.  C.  A., 
242  Fed.  37,  42;  Turner  &  Dahn- 
ken V.  Crowley,  C.  C.  A.,  252  Fed. 
749,  753. 

11  Turner  &  Dahnken  v.  Crowley, 
C.  C.  A.,  252  Fed.  749,  754,  where 
the  sum  was  reduced  to  8  cents  a 
copy,  there  being  no  proof  of  actual 
loss  or  profits  but  the  court  saying 
"we  gather  from  the  testimony 
that  at  a  retail  price  of  15  cents 
a  copy  of  the  song  the  profit  to  the 
plaintiff  could  not  have  exceeded  8 
cents    per    copy.       Per     Hunt,    J.: 


"The  allowance  of  $700,  or  $1  per 
copy  of  the  song  and  music,  seems 
to  have  been  based  upon  the  view 
that  $1  per  copy  is  a  fixed  sum, 
to  be  allowed  under  any  circum- 
stances of  infringement  after  no- 
tice. But,  as  we  do  not  so  construe 
the  law,  the  duty  of  the  court  was 
to  award  damages  as  justified  by 
the  nature  and  circumstances  of  the 
case  as  developed  upon  the  trial. 
Thus,  while  the  discretion  of  the 
court  may  be  used  to  award  dam- 
ages where  no  proof  of  actual  dam- 
age is  offered,  yet  the  award  should 
have  relation  to  such  inferences  as 
are  reasonably  deducible  from  the 
whole  case  of  infringement,  and 
such  damages  are  not  to  be  awarded 
as  based  upon  the  idea  of  punish- 
ment.    13  Corpus  Juris,  p.  1179." 

The  full  amount  was  allowed  in 
Journal  Pub.  Co.  v.  Drake,  C.  C. 
A.,  199  Fed.  572. 

12  Pike  V.  Niehals,  L.  E.,  5  Ch. 
251,  260. 


§  389i]  PROFITS   AND    DAMAGES    IN    TRADEMARK    CASES  1919 

"But  it  has  been  declared  that  this  rule  is  not  applicable  in 
all  cases,i3  and  it  may  be  doubted  whether  it  is  applicable  in 
any,  unless  aided  by  further  proof,  for  obviously  it  permits 
the  recovery  of  purely  speculative  damages. ' '  " 

Where  the  copyright  to  a  play  was  infringed  by  its  produc- 
tion as  a  moving  picture  the  court  assessed  the  damages  at  the 
price  for  which  the  complainant  had  offered  to  sell  the  screen 
rights  plus  $400.00  for  the  loss  of  publicity  which  he  would 
have  received  had  his  name  been  included  in  the  advertisement 
of  the  cinema  production. ^^ 

Resistance  to  liability  for  punitive  damages  is  not  a  reason 
for  imposing  them.^^  AVhere  there  was  no  evidence  of  con- 
cealment or  piracy  but  defendant  was  in  default  in  failing  to 
render  monthly  reports  of  royalties  which  were  less  than  five 
hundred  dollars  and  in  failing  to  make  payment  within  thirty 
days  after  demand ;  punitive  damages  were  assessed  at  the  sum 
of  one  hundred  dollars.^''' 

All  persons  who  unite  in  an  infringement  of  a  copyright 
are  liable  for  the  damages,  although  they  may  not  be  liable 
for  profits  in  which  they  did  not  share. ^^ 

§  389i.  Accounting  of  profits  and  assessment  of  damages  in 
suits  to  restrain  infringements  of  trade-marks.  The  Act  of 
February  20,  1905,  provides  "The  several  courts  vested  with 
jurisdiction  of  cases  arising  under  the  present  Act  shall  have 
power  to  grant  injunctions  according  to  the  course  and  principles 
of  equity,  to  prevent  the  violation  of  any  right  of  the  owner  of 
a  trade-mark  registered  under  this  Act,  on  such  terms  as  the 
court  may  deem  reaso-nable;  and  upon  a  decree  being  rendered 
in  any  case  for  wrongful  use  of  a  trade-mark  the  complaint  shall 
be  entitled  to  recover,  in  addition  to  the  profits  to  be  accounted 

13  Citing    Huebseh    v.    Arthur    H.  15  Stodart   v.    Mutual   Film    Corp., 

Crist    Co.,    209    Fed.    885;    Scribner  249  Fed.  507,  511,  in  the  aggregate 

V.    Clark,    50    Fed.    473     (affirming  sum  of  $900,  besides  the  counsel  fee 

144  U.  S.  488,  12  Sup.  Ct.  734,  36  of  $300. 

h.  ed.  514);   Smiles  v.   Belford,  23  16  Leo    Feist    v.    Am.    Music    Roll 

firant  Ch.   (U.  C.)   590.  Co.,  253  Fed.  860. 

14Tralc    on    Copyright   and    Liter-  17  Ibid, 

ary   Property,   13   Corp.   Juris   1218,  18  Gross  v.  Van  Dyk  Gravure  Co., 

citing    Woodman    v.    Lydiaed-Peter-  C.  C.  A.,  230  Fed.  412. 
son  Co.,  192  Fed.  67,  aflf'd  204  Fed. 
921. 


I 

l'J20  PROCEEDINGS  IN  A  MASTER'S  OFFICE  [§  3891 

for  by  the  defendants  the  damages  the  complainant  has  sustained 
thereby,  and  the  court  shall  assess  the  same  or  cause  the  same 
to  be  assessed  under  its  directions.  The  court  shall  have  the  same 
power  to  increase  such  damages,  in  its  discretion,  as  is  given  by 
section  sixteen  of  this  Act  for  increasing  damages  found  by  ver- 
dict in  actions  of  law :  and  in  assessing  profits  the  plaintiff  shall 
be  required  to  prove  defendant's  sales  only;  defendant  must 
prove  all  elements  of  cost  which  are  claimed."  ^ 

Section  sixteen  is  as  follows:  "The  registration  of  a  trade- 
mark under  the  provisions  of  this  Act  shall  be  prima  facie 
evidence  of  ownership.  Any  person  who  shall,  without  the 
consent  of  the  owner  thereof,  reproduce,  counterfeit,  copy  or 
colorably  imitate  any  such  trade-mark  and  affix  the  same  to 
merchandise  of  substantially  the  same  descriptive  properties  as 
those  set  forth  in  the  registration,  or  to  labels,  signs,  prints, 
packages,  wrappers,  or  receptacles  intended  to  be  used  upon 
or  in  connection  with  the  sale  of  merchandise  of  substantially 
the  same  descriptive  properties  as  those  set  forth  in  such  regis- 
tration and  shall  use,  or  shall  have  used,  such  reproduction, 
counterfeit,  copy  or  colorable  imitation  in  commerce  among  the 
several  States,  or  with  a  foreign  nation,  or  with  the  Indian 
tribes,  shall  be  liable  to  an  action  for  damages  therefor  at  the 
suit  of  the  owner  thereof;  and  whenever  in  any  such  action 
a  verdict  is  rendered  for  the  plaintiff,  the  court  may  enter 
judgment  therein  for  any  sum  above  the  amount  found  by  the 
verdict  as  the  actual  damages,  according  to  the  circumstances 
of  the  case,  not  exceeding  three  times  the  amount  of  such  verdict, 
together  with  the  costs.  "^ 

Upon  an  accounting  of  profits,  made  by  the  infringement  of 
a  trade  mark  or  by  unfair  competition  in  the  description  of 
an  article  sold  by  the  defendant,  it  may  be  presumed  that  the 
simulation  of  complainant's  manufacture  was  one  of  the  causes 
which  induced  the  defendant's  sales  and  which  prevented  sales 
by  the  complainant;  and  where  it  is  impossible  to  determine 
whether  that  or  some  other  cause  induced  a  sale,  defendant 
may  be  required  to  account  for  the  whole  profit.^     But  where 

§389i.     lAot    of    Feb.    20,    1905,  3  G.    &    C.    Merriam    Co.    v.    Saal- 

cli.  592,  §19,  :13  St.  at  L.  field,   C.   C.   A.,   198  Fed.   369,   378; 

2  Act    of   Feb.   20,    1905,   ch.   592,  N.    K.    Fairbaiik    Co.    v.    Windsor, 

§16,  33  St.  at  L.  118   Fed.   96;    Saxelehner   v.   Eisner 


§  390]  STATE  OP  FACTS  AND  CLAIM  1021 

the  infringement  consisted  in  llie  use  of  a  single  word  and  there 
was  no  proof  of  bad  faith  nor  of  aetual  damages,  no  proiits 
or  damages  were  allowed.*  And  where  the  only  inifair  com- 
petition consisted  in  two  letters  urging  plaintitf's  customers  to 
refrain  from  punhasing  from  j)laintitT'  with  improper  innu- 
endoes, the  court  held  llial  ilirrc  was  no  basis  for  an  account- 
ing of  profits,  or  an  award  of  substantial  damages  and  rendered 
a  decree  for  nominal  damages  and  one-half  the  costs.^  \Vhere 
the  goods  of  the  parties  sold  at  different  prices  the  court  held 
that  there  was  no  l)asis  for  damages  and  that  profits  alone  could 
be  awarded.^  Whei-e  a  decree  which  was  affirmed  directed  that 
complaiiuints  should  recover  of  defencUmt  "damages"  sustained 
by  reason  of  defendant's  unlawful  acts  and  might  aj^ply  for 
a  reference  to  ascertain  and  assess  such  damages;  it  was  held 
that  there  could  be  no  accounting  of  i)r()fits.'  Clerks  and  offi- 
cers of  a  corporal  ion  which  has  been  guilty  of  uufaii-  com])eti- 
tion  or  an  infringement  of  a  trade-mark  should  not  be  required 
to  account,^  except  under  special  circumstances.^  In  a  suit  to 
enjoin  the  infringement  of  a  trade-mark  and  unfair  trade,  where 
there  is  a  serious  doubt  as  to  the  right  to  the  trade-mark,  the 
master  should  find  separately  the  damages  and  profits  awarded 
because  of  the  infringement  and  because  of  the  uhfair  trade. ^^ 

The  court  may  require  the  account  to  state  the  names  and 
addresses  of  all  buyers  of  the  goods  which  infringe  the  trade- 
mark.^^ 

§390.  A  state  of  facts  and  claim.  V>y  the  English  ju-actiee 
a  party  who  intended  to  examine  witnesses  before  a  master 
under  a  decree  was  obliged  to  carry  in  a  state  of  facts  detail- 

&  Mendelson  Co.,  C.  C.  A.,  138  Fed.  <'ialty    Co.    v.    Collis    Co.,    235    Fed. 

22,    70    C.    C.    A.,    452.      See    also  920. 

Regis  y-.  Jaynes,  191  Mass.  245,  249,  'r  Hiram    Walker   &    Sons   v.    (Jrih- 

77   N.   E.    774.     But   see  Ludington  m.in,  222  Fed  478. 

Novelty    Co.    v.    Leonard,    C.    C.    A.,  8  P.  E.  Sliarpless  Co.  v.  Lawrence, 

127   Fed.   155.  C.  ('.   A.,  213  Fed.  423. 

4  Amnion  &  Person  v.  Narragan-  9  Hiram  Walker  &  Sons  v.  Grub- 
sett  Dairy   Co.,   254  Fed.  208.  man.  222  Fed.  478;  see  suprn,  Sill. 

5  ITamiltnn     Shoe     Co.     v.      Wolf  10  Cuslinian    &    Denison    Mfg.    Co. 
r.n.thers,    240    I^    S.    2.1 1  ;     Howard  v.   Crammos,  225   Fed.   883. 
Diistloss  Duster  Co.  v.  Carleton,  244  n  ().  &  W.  Tluim  Co.  v.  Dickinson. 
Fed.  882.  254    Fed.    219.     Contra    Cnsliman    & 

6  Howard  Dustle-ss  Duster  Co.  v.  Denison  Mfg.  Co.  v.  Grammes,  225 
Carleton,    244    Fed.    882;    Am.    Spe-  Fed.  883. 


1922  PROCEEDINGS  IN  A  MASTER'S  OFFICE  [§  390 

ing  the  circumstances  which  he  desired  to  prove.^  This  was 
also  the  general  form  by  which  the  prosecution  of  every  reference 
to  a  master  was  commenced.^ 

"A  state  of  facts,  as  its  name  imports,  is  a  statement  in 
writing,  made  by  a  party  who  wishes  to  prosecute  or  resist  any 
inquiry  before  a  master,  of  the  facts  and  circumstances  upon 
which  he  relies,  either  in  support  of  his  own  cause,  or  in  con- 
tradiction or  defeasance  of  that  of  his  adversary.  It  is,  in  effect, 
the  pleading  of  the  party  before  the  master,  and  is  governed 
by  nearly  the  same  rules  and  principles  as  pleadings  in  the 
court,  although,  not  being  signed,  nor,  in  general,  prepared  by 
counsel,  they  are  not  always  so  strictly  observed.  A  state  of 
facts,  however,  must  be  pertinent  to  the  matter,  and  must  not, 
any  more  than  any  other  proceeding  in  the  cause,  contain  any 
scandal;  and  if  it  is  either  scandalous  or  impertinent,  the 
scandalous  or  impertinent  matter  may  be  expunged,  in  the 
manner  which  will  be  presently  pointed  out. 

"A  state  of  facts  is  intituled  in  the  cause,  and  contains  a 
detail  of  the  facts  and  circumstances  intended  to  be  relied  upon 
by  the  party :  when  the  party  carrying  in  the  state  of  facts 
makes  any  claim  upon  the  fund  in  court,  it  is  usual  to  conclude 
the  statement  with  the  particulars  of  the  claim,  in  the  manner 
of  a  prayer  for  relief  to  the  bill,  as  follows: — 'And  the  said 
A.  B.,  therefore,  claims,  etc.;'  in  such  case  the  proceeding  is 
called  'a  state  of  facts  and  claims.'  When  the  object  of  the 
party  is  to  charge  another  with  the  receipt  of  money,  etc.,  the 
state  of  facts  concludes  with  a  charge  in  the  following  form: — 
'and  the  said  A.  B.,  therefore,  charges,  etc.;'  in  such  case  the 
proceeding  is  called  'a  state  of  facts  and  charge.'  It  may  be 
remarked,  that  a  charge  is  not  always  preceded  by  a  state  of 
facts,  but  if  the  matter  appear  from  any  admissions  in  any 
account,  or  examination  or  proceeding  in  the  master's  office, 
and  requires  no  other  proof  in  support  of  it,  it  is  usual  to  make 
'a  charge'  only. 

When  a  state  of  facts  is  prepared,  it  is  carried  in  to  the 
master's  office  and  a  warrant  'on  leaving'  must  be  served  upon 
the  other  parties,  who  may  then  apply  for  and  obtain  copies 

§390.     IDaniell's     Ch.     Pr.,     ch.  2  Ibid. 

xxvi. 


§  391  ]  EVIDEN'CE  DEFOKE  A  MASTER  1923 

from  tlie  master's  elcrk,  ami  il.'  tliey  have  a  euuiiter  state  of 
facts  to  leave,  they  must  proceed  in  the  same  manner.  It  is 
usual  to  add  to  a  state  of  facts,  a  sort  of  petition,  that  the  party 
may  be  at  liberty  to  add  to,  alter,  or  vary  the  state  of  facts,  as 
he  may  be  advised ;  and  it  is  presumed,  that  such  form  was  orig- 
inally considered  necessarj'^,  to  enable  the  party  to  amend  his 
state  of  facts,  after  it  has  been  delivered  in.  It  is,  however, 
now  an  unnecessary  form,  as  a  state  of  facts  may  be  amended 
at  any  time,  or  a  further  state  of  facts  carried  in,  upon  leaving 
which,  a  warrant,  'on  leaving,'  should  be  taken  out  and  served, 
as  when  an  original  state  of  facts  is  left. "  ^  It  has  been  held 
that  an  amendment  should  not  be  allowed  after  the  case  has 
been  submitted  to  the  master  for  decision.*  Parties  severally, 
although  similarly,  interested  cannot  ordinarily  unite  in  the 
same  claim. ^ 

§391.  Evidence  before  a  master.  "All  affidavits,  deposi- 
tions, and  documents  which  have  been  previouslj'  made,  read 
or  used  in  the  court  upon  anj^  proceedings  in  any  cause  or 
matter  may  be  used  before  the  master. ' '  ^  These  should,  how- 
ever, be  regularly  offered  in  evidence,  so  that  the  other  party 
may  have  an  opportunity  to  explain  or  rebut  them.^  Other- 
wise, they  cannot  be  referred  to  upon  the  argument,  or  used 
in  support  of  the  report.^ 

The  master  has  power  to  examine  under  oath  the  parties 
in  the  cause,  and  any  witnesses  produced  by  them,*  and  any 
creditor  or  other  person  coming  in  to  claim  before  liim.^  The 
testimony  should  be  taken  down  in  writing  by  the  master,  or 
by  some  one  in  his  presence,  so  that  the  court  may  use  the  same.^ 

SDaniell's  Ch.  Pr.,  ch.  xxvi.  gau  the  suit,  the  nature  of  his  cause 

4  Clyde  V.  Richmond  &  T>.  R.  Co.,  of  action  and   the  amount   of   dani- 

59    Fed.    394;     Central    Tr.    Co.    v.  ages   recovered  by  him,   and  it  was 

Marietta  &  N.  G.  Ry.  Co.,  75  Fed.  held  to  be  prima  facie  evidence  of 

41.  those    facts    against    a    mortgagee. 

6  Pa.  Steel  Co.  v.  New  York  City  Southern   Ry.    Co.   v.   Boukniglit,   C. 

Ry.  Co.,  U.   S.   C.   C,   S.   D.  N.   Y.,  C.  A.,  70  Fed.  442,  per  Fuller,  C.  J. 

N.  Y.  L.  J.  May  27,  1908.  2  Bell   v.   I'.   S.   Stamping  Co.,   32 

§  391.     1  Equity    Rule    80.      But  Fed.   549. 

see   Hammaeher  v.   "Wilson,  32   Fed.  3  Ibid. 

796.     Upon  the  reference  of  a  claim  4  Equity  Rule  52. 

of  a  judgment  creditor  for  a  jirefer-  5  Equity  Rule  65. 

ence,    his    judgment    roll    is    admis-  6  E(|iiity  Rule  65. 

sible  to  prove  the  date  when  he  be- 


1924  PROCEEDINGS  IN  A  MASTER'S  OFFICE  [§  391 

It  is  the  master's  duty  to  be  present  when  the  testimony  is 
taken. '^  He  cannot  decide  upon  testimony  taken  before  another 
master  in  the  same  or  another  proceeding  when  the  witnesses 
are  alive  and  within  the  jurisdiction  of  the  court. ^ 

AVitnesses  who  live  in  the  district  may,  upon  due  notice  to 
the  opposite  party,  be  summoned  to  appear  before  a  master, 
by  a  subpoena  issued  from  the  clerk's  office  in  blank  and  filled 
by  the  party  applying  for  the  same,  or  by  the  master,  requiring 
the  attendance  of  the  witnesses  at  a  time  and  place  therein 
specified.^  Such  witnesses  are  entitled  to  the  same  compensa- 
tion as  for  attendance  in  court. ^°  A  refusal  to  appear  in  obedi- 
ence to  such  subpoena  is  a  contempt  punishable  by  the  court  or 
a  judge  thereof  by  an  attachment  issued  upon  the  master's 
certificate.^^  The  production  of  documents  may  be  compelled 
by  a  master. 12  Upon  the  master's  certificate  a  commission 
issues  from  the  clerk's  office  to  take  the  depositions  of  witnesses 
according  to  the  acts  of  Congress  or  equity  rule.^^  Under 
extraordinary  circumstances,  a  master  may  take  testimony  be- 
yond the  territorial  jurisdiction  of  the  court. ^^ 

A  master  has  power  to  direct  the  mode  in  which  matters  re- 
quiring evidence  shall  be  proved  before  him.^^  The  court  ^^ 
may  but  i-arely  will  interfere  with  the  master's  ruling  in  this 
respect  before  his  report  is  brought  before  it  for  review.^'''  It 
is  the  safer  practice,  when  a  master  erroneously  excludes  evi- 
dence, to  move  the  court  for  an  immediate  correction  of  his 
error.  1®  It  has  been  held  that  the  failure  to  object  to  the  tak- 
ing of  evidence  before  a  master  is  not  equivalent  to  a  consent 
to  his  appointment,  nor  an  estoppel  to  controvert  his  findings 
of  facts.i^ 


7  Rubin  &  Lipnian,  215  Fed.  669.  16  Webster  L.   Co.  v.   Higgins,  43 

8  Ibid.  Fed.  673. 

9  Equity  Rule  55.  17  Lull    v.    Clark,    20    Fed.    454; 

10  Equity  Rule  52.  Wooster    v.     Gumbirnner,     20     Fed. 

11  Equity  Rule  52.  167;    Third  Nat.  Bank  of  Philadel- 

12  G  OSS      Printing-Press      Co.  v.       phia  v.  Nat.  Bank  of  C,  V.,  86  Fed. 
Seott,  119  Fed.  941.  852. 

13  Equity  Rule  77.  18  Celluloid   Mfg.   Co.   v.   Cellonite 
l^BateRof.    Co.    v.    Gillette,    28       Mfg.   Co.,  40  Fed.  476. 

Fed.   673.  19  Southern  Ry.  Co.  v.  Simon,  184 

16  Equity  Rule,  77.  Fed.  959. 


§  392]  master's  report  1925 

§392.  Master's  report.  The  final  decision  of  a  master  upon 
matters  referred  to  him  is  embodied  in  his  report  to  the  court. 
He  should  not  recite  at  len^h  any  part  of  any  paper  or  deposi- 
tion brought  in  or  used  before  liim.i  He  is,  iiowever,  required 
to  refer  to  and  identify  every  state  of  facts,  charge,  affidavit, 
deposition,  examination,  or  answer  used  before  him,  so  as  to 
inform  the  court  concerning  the  pleadings  and  evidence  which 
he  considered  in  reaching  the  conclusions  embodied  in  his  re- 
port.2  Unless  required  by  the  order  of  reference,  it  is  not  nec- 
essary for  him  to  report  all  of  the  evidence  taken  l)efore  him.' 

It  is  the  better  practice  for  a  master  before  making  his  re- 
port to  prepare  and  serve  on  the  parties  a  draft  of  tlie  same, 
with  notice  of  a  time  and  place  when  and  where  he  will  hear  their 
objections  thereto.*  At  the  appointed  time,  counsel  should  ap- 
pear, make  their  objections  to  the  proposed  report,  and  see  that 
these  objections  are  noted  in  wiiting  and  filed  with  the  master.^ 
This  is  the  practice  in  Ihe  Second  Circuit.^  The  practice  is, 
however,  in  some  circuits  very  loose  in  this  respect.'''  The  ob- 
jections made  to  the  draft  should  not  be  included  in  the  report 
when  made.* 

A  report  was  sent  back  to  the  master,  when  he  had  refused 
to  permit  new  testimony  to  be  taken  after  his  draft  had  been 
served  and  it  appeared  that  a  party  had  been  misled  as  to 
the  effect  to  be  given  to  evidence  already  in  the  case.^ 

It  has  been  said  that  the  master  may  embody  his  conclusions 
in  separately  numbered  findings  if  he  chooses,  but  tliat  it  is 
the  better  practice  to  write  the  report  as  a  narrative  without 
such  interruptions,!'^  and  tliat  he  should  not  rule  on  requests 

§392.     lEq.     Eules,     61.       Roll-  5  Fischer  v.  Hayes,  16  Fed.  469; 

man    Mfg.    Co.    v.    Universal   Hard-  Story  v.  Livingston,  13  Pet.  359,  10 

ware  Works,  229  Fed.  579.  L.  ed.  200. 

2  Equity  Rule  61.  See  Be  6  Fischer  v.  Hayes,  16  Fed.  469; 
Thomas,  35   Fed.  337,  339.  Jennings  v.  Dolan,  29  Fed.  861. 

3  Weiss  V.  Haight  &  Freese  Co.,  7  Hatch  v.  Indianapolis  &  S.  R. 
148     Fed.     399;     afif'd     on     appeal  Co.,   9   Fed.   856. 

Haight   &   Freese    Co.    v.    Weiss,    C.  8  Ommen  v.  Talcott,  175  Fed.  261, 

C.  A.,  156  Fed.  328;   certiorari  de-  270. 

nied,  207  U.  S.   594,  52  L.  ed.  356.  9  Westlake    v.    Marvin.    176    Fed. 

4  Fischer  v.   Hayes,  16  Fed.  469;  742. 

Jennings    v.    Dolan,    29    Fed.    861;  10  Ommen    v.    Talcott,    175    Fed. 

Bliss  V.  Anaconda  Copper  Min.  Co.,  261,  270.     But  it  has  been  said  that 

156  Fed.  309.  the    master     should    make    findings 
Fed.  Prac.  Vol.  11—51 


1026 


PROCEEDINGS  IN  A  MASTER 'S  OFFICE 


[§393 


to  find,  nor  incorporate  such  rulings  in  his  report^^  It  has 
been  said  to  be  improper  for  the  master  to  report  the  entire 
evidence  taken  before  him  unless  there  is  an  order  from  the 
court  to  that  effect,  or  to  report  such  portions  of  the  evidence 
as  relate  to  the  exceptions  without  a  request  from  the  party 
excepting.  ^^ 

The  report  may  be  either  general,  covering  all  the  matters 
referred ;  or  special,  confined  to  a  part  which  can  be  conveniently 
severed  from  the  rest,  where  it  is  for  the  interest  of  persons 
thereby  affected  not  to  delay  till  the  whole  case  is  determined.!^ 

As  soon  as  the  report  is  ready,  the  master  should  file  the  same 
in  the  clerk's  office;  and  the  clerk  should  enter  the  day  of  the 
return  in  the  order  book.^*  If  no  exceptions  are  filed  within 
one  month  from  the  time  of  filing,  the  report  is  considered  as 
confirmed  on  the  next  rule  day  after  the  month  has  expired. ^^ 

Upon  consent  of  the  parties  ^^  or  at  the  request  of  the  master 
the  court  may  allow  the  report  to  be  withdrawn  for  the  cor- 
rection of  a  mistake  by  him;  but  in  such  case  it  is  improper 
for  him  to  reverse  his  rulings  upon  the  law  or  the  evidence, 
except  upon  notice  to  all  parties  affected,  and  after  a  hearing 
of  any  of  them  who  wish  to  be  heard.^' 

§393.  Exceptions  to  masters'  reports.  Exceptions  to  the 
report  of  a  master  must  be  filed  within  tAventy  days  from  the 
filing  of  the  report.^  No  exception  will  lie  to  a  ruling  before 
the  report  was  made  which  was  not  objected  to  before  the  mas- 
ter.2     jji  circuits  where  it  is  not  the  practice  for  masters  to 


of  fact  and  adopt  conclusions  of 
law.  Des  Moines  Water  Co.  v.  City 
of  Des  Moines,  192  Fed.  193. 

11  Ibid. 

12Massie  Wireless  Tel.  Co.  v.  En- 
terprise Transp.  Co.,  C.  C.  A.,  175 
Pod.  6,  10. 

ISDaniell's  Ch.  Pr.  (1st  Am.  ed.) 
1475,  1476. 

14  Eq.  Eiile   83. 

15  Equity  Rule  83;  Burns  v.  Ros- 
enstein,  135  U.  S.  449,  455,  34  L. 
ed.   193,  195. 

16  W.  U.  Tel.  Co.  V.  Am.  Bell 
Tel.   Co.,  50  Fed.   662. 

17  National    F.    B.    &    P.    Co.    v. 


Dayton  P.  N.  Co.,  91  Fed.  822; 
Goldsmith  Silver  Co.  v.  Savage,  C. 
C.  A.,  229  Fed.  623;  Fleming  v. 
Noble,  C.  C.  A.,  250  Fed.  733; 
Connor  v.  United  States,  C.  C.  A., 
214  Fed.  522;  Ee  Stafford,  226  Fed. 
127;  Spring  Valley  Water  Co,  v. 
City  &  County  of  San  Francisco, 
252  Fed.  979;  Smith  v.  Seibel,  258 
Fed.  454. 

§393.  1  Equity  Rule  66;  Fidel- 
ity Ins.  &  S.  D.  Co.  V.  Shenandoah 
I.  Co.,  42  Fed.  372.  But  see  Cen- 
tral T.  Co.  V.  Wabash,  St.  L.  &  P. 
Ry.  Co.,  27  Fed.  175. 

2  Troy  I.   &  N.   Factory  v.   Corn- 


§393] 


EXCEPTIONS  TO  il  ASTERS     REIMJRTS 


1027 


serve  drafts  of  their  reports,  an  exception  to  the  report,  but 
not  an  exception  to  a  ruling  on  evidence,  can  be  filed  without 
a  preliminary  objection. ^  Such  an  exception  has  also  been  per- 
mitted after  a  draft  of  the  report  had  been  served,  and  no  ob- 
jection made  thereto.*  Objections  in  support  of  exceptions  may 
be  allowed  to  be  filed  nunc  pro  tunc.^ 

Where  tlie  master  has  submitted  a  draft  of  his  report  to 
counsel,  who  have  filed  objections  to  tlie  same  before  it  was 
finally  made,  it  is  a  convenient  practice  to  provide,  by  stipulation 
or  order,  that  objections  filed  before  the  order  shall  stand  as 
exceptions  filed  with  the  clerk.^  Unless  such  provisions  are 
made  they  will  be  disregarded  by  the  court.''' 

In  the  absence  of  exceptions  the  master's  findings  of  fact 
will  be  accepted  as  true,^  but  the  court  may  review  any  er- 
roneous deductions  made  therefrom  in  his  conclusions.^  It  is 
a  safer  practice,  however,  to  except  specifically  to  all  his  con- 
clusions of  which  a  review^  is  sought  since  the  court  in  its  dis- 
cretion may  otherwise  refuse  to  review  them.^°  Exceptions  to 
the  master's  conclusions  of  law,  do  not  open  for  review  his 
findings  of  fact.^^ 

Exceptions  to  a  master's  report  are  in  the  nature  of  a  special 
demurrer.12  They  should  si)ocifically  point  out  the  errors  of 
which  they  complain,  and  if  they  rely  upon  any  jiart  of  the 
testimony,  it  is  the  safer  jn-actice  to  liave  them  either  state 
the  same  or  refer  thereto,  so  that  the  court  can  Avithout  diffi- 
culty find  it.^^    An  exception  may  be  sustained  upon  a  different 


ing,  6  Blatchf.  .S28;  Fischer  v. 
Hayes,  16  Fed.  469;  Story  v.  Liv- 
ingston, 13  Pet.  359,  10  L.  ed.  200; 
Ommen  v.  Taleott,  175  Fed.  261, 
270.  But  see  Hatch  v.  Indianapolis 
&  S.  R.  Co.,  9  Fed.  856;  Jennings 
V.  Dolan,  29  Fed.  861. 

3  Hatch  V.  Indianapolis  &  S.  R. 
Co.,  9  Fed.  856;  Fidelity  I.  &  S. 
D.  Co.  V.  Shenandoah  I.  Co.,  42  Fed. 
372.  See  Jennings  v.  Dolan,  29 
Fed.   861. 

4  Jennings  v.  Dolan,  29  Fed.  861. 

5  Fischer   v.   Hayes,   16   Fed.   469. 

6  Bliss  V.  Anaconda  Copper  Min, 
Co.,  156  Fed.  309. 


7  Decker  v.   Smith,   225   Fed.   776. 

8  Fleming  v.  Noble,  C.  C.  A.,  250 
Fed.  733. 

9  Central  Improvement  Co.  v. 
Cambria  Steel  Co.,  C.  C.  A.,  210  Fed. 
696. 

10  Ibid. 

11  Hattiesburg  Lumber  Co.  v. 
Ilerri.-k,  C.  C.  A.,  212  Fed.  834. 

12  0eneral  Fire  Extinguisher  Co. 
V.  Lamar,  C.  C.  A.,  141  Fed.  353. 

13  Harding  v.  Handy,  11  Wheat. 
]0;;,  6  L.  ed.  429;  Foster  v.  God- 
dard,  1  Black,  506,  17  L.  ed.  228; 
Greene  v.  Bishop,  1  Cliff.  186;  Stan- 
ton   V.    Alabama    &    C.    R.    Co..    3 


1928 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§393 


ground  tlian  that  therein  stated.^*  It  has  been  held  that  the 
point  that  a  statute  is  unconstitutional  need  not  be  specifically 
stated  in  the  exception.^^ 

Exceptions  to  the  admission  or  exclusion  of  evidence,  taken 
upon  the  hearing  before  the  master,  need  not  be  restated  in 
the  exceptions  filed  to  his  report. ^^  Where  the  findings  were 
supported  by  the  findings,  exceptions  as  to  the  master's  ruling 
concerning  the  burden  of  proof  and  the  effect  of  part  of  the 
evidence  were  disregarded.^^  It  has  been  held  in  the  Second 
Circuit  that  if  the  master  errs  by  an  improper  rejection  of 
evidence,  his  error  should  be  corrected  by  an  immediate  mo- 
tion to  compel  him  to  receive  the  same,  and  is  not  the  proper 
subject  of  an  exception  to  his  report.^^ 

If  the  court  is  in  session  when  exceptions  are  filed,  they  are 
argued  at  that  session ;  ^^  otherwise  at  the  next  session.20 

Every  presumption  is  in  favor  of  the  correctness  of  the  de- 
cision of  a  master.2i     It  has  been  said  that  this  rule  does  not 


Woods,  506;  Cutting  v.  Florida  Ry. 
&  Nav.  Co.,  43  Fed.  743,  747;  Gen- 
eral Fire  Extinguisher  Co.  v.  La- 
mar, C.  C.  A.,  141  Fed.  353;  Sand- 
ford  V.  Embry,  C.  C.  A.,  151  Fed. 
977;  H.  C.  Cook  Co.  v.  Little  River 
Mfg.  Co.,  164  Fed.  1005.  In  Duden 
V.  Maloy,  43  Fed.  407,  the  follow- 
ing exception  was  held  to  be  insuffi- 
cient according  to  the  practice  in  the 
Second  Circuit,  and  was  consequent- 
ly disregarded:  "For  that  the  mas- 
ter has  found  contrary  to  the  pre- 
liminary requisitions  and  objections 
of  defendant  to  his  proposed  draft 
report,  and  wliich  requisitions  and 
objections  he  here  repeats,  and  con- 
tends that  fresh  evidence  should  be 
taken  thereon."  All  that  is  neces- 
sary is  that  the  exception  should 
distinctly  point  out  the  finding  and 
the  conclusion  of  the  master  which 
it  seeks  to  reverse.  Foster  v.  God- 
dard,  1  Black,  506,  509,  17  L.  ed. 
228,  229,  per  Swayne,  J.  See  Cen- 
tral Tr.  Co.  V.  Wabash,  St.  L.  &  P. 
Ry.   Co.,   57   Fed.   441,  444.     For  a 


construction  of  exceptions,  see  Peo- 
ple V.  American  Loan  &  Trust  Co., 
87  App.  Div.  (N.  Y.),  139.  See 
§  389a,  supra. 

14  Kansas  City  Ry.  v.  Guardian 
Trust  Co.,  240  U.  S.  166,  178;  Cen- 
tral Imp.  Co.  v.  Cambria  Steel  Co., 
C.  C.  A.,  210  Fed.  696,  700. 

15  Fidelity  Ins.  &  S.  D.  Co,  t. 
Shenandoah  Iron  Co.,  42  Fed.  372, 
374. 

16  Marks  v.  Fox,  18  Fed.  713. 

17  Adams  v.  Osley,  255  Fed.  117. 

18  Celluloid  Mfg.  Co.  v.  Cellonite 
Mfg.   Co.,  40  Fed.  476,  478. 

19  Equity  Rule  83. 

20  Equity  Rule  83. 

21  Medsker  v.  Bonebrake,  108  U. 
S.  66,  27  L.  ed.  654;  Tilghman  v. 
Proctor,  125  U.  S.  136,  31  L.  ed. 
664;  Callaghan  v.  Myers,  128  U.  S. 
617,  666,  32  L.  ed.  547,  562;  Kim- 
berly  v.  Arms,  129  U.  S.  512,  524, 
32  L.  ed.  764,  768 ;  Sandford  v.  Em- 
bry, C.  C.  A.,  151  Fed.  977;  Houck 
v.  Christy,  C.  C.  A.,  152  Fed.  612; 
McNulty  V.  Wiesen,   158  Fed.   221; 


§393] 


EXCKI'TIONS  TO   MASTERS     KKl'ORTS 


1929 


apply  to  a  suit  to  enjoin  the  enforcement  of  a  legislative  or 
municipal  regulation  of  the  charges  by  a  public  service  corpo- 
ration.^^  If  the  testimony  is  conflicting,  the  court  will  rarely 
interfere  with  the  master's  decision  on  the  facts,  provided  he 
made  no  errors  in  law  which  affected  the  result. ^^  Where  the 
order  directed  the  master  to  state  the  facts,  his  findings  have 
as  much  weight  as  the  verdict  of  a  jury  upon  a  feigned  issue.** 
His  findings  of  fact  cannot  be  impeached  in  the  absence  from 
the  record  of  his  certificate  or  other  competent  proof  either  that 
the  evidence  presented  to  the  court  is  the  entire  evidence  before 
him  or  that  it  was  all  the  evidence  before  him  relative  to  the 
specific  finding  or  findings  challenged ;  *^  but  where  the  order 
of  reference  required  the  master  to  report  the  testimony,  it  was 
presumed  that  the  testimony  attached  to  his  report  was  all  that 


Blassengame  v.  Boyd,  C.  C.  A.,  178 
Fed.  1;  Peterson  v.  Mettler,  198 
Fed.  938.  This  sentence  was  quoted 
with  approval  in  Chandler  v.  Pom- 
roy,  87  Fed.  262,  266. 

22  San  Joaquin  &  Kings  River 
Canal  &  Irrigation  Co.  v.  Stanislaus 
County,  191  Fed.  87.  Contra,  Des 
Moines  Gas  Co.  v.  City  of  Des 
Moines,   199  Fed.   204. 

23  Welling  v.  La  Bau,  34  Fed.  40 ; 
Mason  v.  Crosby,  3  W.  &  M.  258; 
Gottfried  v.  Crescent  Brg.  Co.,  22 
Fed.  4;i3;  Jaffrey  v.  Brown.  29  Fe<l. 
476;  Central  Tr.  Co.  v.  T.  &  St.  L. 
Ry.  Co.,  32  Fed.  448;  Ouarantee 
Gold  Bond  Loan  &  Sav.  Co.  v.  Ed- 
wards, C.  C.  A.,  164  Fed.  809;  Cur- 
tice Bros.  Co.  V.  Barnard,  C.  C.  A., 
209  Fed.  589.  It  has  been  said  that 
the  master 's  finding  is  not  conclu- 
sive upon  issues  not  raised  by  the 
pleadings  or  other  papers  before 
him.  Boisot  v.  Amarillo  St.  Ry.  Co., 
244  Fed.  838.  But  it  is  the  duty 
of  the  court  to  weigh  the  evidence 
and  find  its  own  facts,  although  the 
testimony  is  conflicting,  whenever 
either  party  excepts  to  the  master's 
report.     Southern  Ry.  Co.  v.  Simon, 


184  Fed.  959,  960;  Hattiesburg 
Lumber  Co.  v.  Herrick,  C.  C.  A.,  212 
Fed.  838. 

24  Davis  v.  Schwartz,  155  U.  S. 
631,  39  L.  ed.  289.  But  see  Hap- 
good  v.  Berry,  C.  C.  A.,  157  Fed. 
807;  Ee  Senoia  Duck  Mills,  193 
Fed.   711;   supra,   §  389a. 

25  Wheeler  v.  Abilene  Nat.  Bank 
Bldg.  Co.,  C.  C.  A.,  16  L.R.A.  (N. 
S.)  892,  159  Fed.  391,  393,  14  Ann. 
Cas.  917;  Guarantee  Gold  Bond 
Loan  &  Sav.  Co.  v.  Edwards,  C.  C. 
A.,  164  Fed.  809;  Stromberg-Carl- 
son  Telephone  Mfg.  Co.  v.  Simmons, 
199  Fed.  256.  In  Jefferson  Hotel 
Co.  V.  Brumhagh,  C.  C.  A.,  168  Fed. 
867,  held  that  a  prayer  that  the 
other  parties  prove  their  accounts 
and  their  respective  priorities  before 
one  of  the  masters  of  the  court,  did 
not  bind  the  pleader  to  abide  the 
master 's  judgment  upon  the  facts 
or  law;  but  that  the  master's  find- 
ings and  conclusions  should  be  fol- 
lowed, unless  some  obvious  error  had 
intervened  in  the  application  of  the 
law  or  some  serious  mistake  had 
been  made  in  the  consideration  of 
the  evidence. 


1930  PROCEEDINGS  IN  A  MASTER'S  OFFICE  [§  393 

was  taken  before  him.^s  AVhere  the  issues  are  by  stipulation 
tried  before  a  master,  only  questions  of  law  can  be  reviewed,^''' 
but  not  when  the  master  is  directed  to  report  the  testimony 
with  his  findings  and  conclusions.^^  Manifest  errors  in  such 
a  report  can  always  be  corrected.^* 

Exceptions  to  a  master's  report  are  only  proper  when  he 
has  made  an  erroneous  decision  upon  the  matters  referred  to 
him.3®  An  irregularity  in  his  appointment  cannot  thus  be  ques- 
tioned.3^  The  remedy  for  an  irregularity  in  his  proceeding, 
or  for  his  neglect  to  report  upon  all  the  matters  referred  to 
him,  is  a  motion  to  set  aside  the  report,  or  to  refer  the  same 
back  to  the  master.^'^ 

It  is  not  usual  to  recommit  a  report  for  further  testimony 
and  a  revision  of  the  master's  conclusions,  when  full  oppor- 
tunity to  offer  evidence  has  been  given  to  the  parties ;  ^^  but 
where  it  appeared  that  the  parties  did  not  fully  understand  their 
rights  and  necessities,  the  report  was  sent  back  to  the  master 
to  give  them  an  opportunity  to  supply  their  omission  to  take 
evidence.^*  When  there  has  been  no  irregularity  in  the  master's 
proceedings,  a  report  will  rarely  be  recommitted  for  the  taking 
of  further  testimony  upon  the  motion  of  a  party  who  has  filed 
no  exceptions.^^ 

A  report  of  a  master  may  be  corrected  without  a  re-reference, 
from  facts  appearing  in  the  case  aside  from  the  evidence  taken 
before  him.^® 

Where  after  a  master's  report  had  been  filed  a  judgment 
finding  facts  opposite  to  those  found  by  the  master  had  been 

2«  Guarantee    Gold   Bond   Loan    &  31  Seaman    v.    N.    W.    M.    L.    Ins. 

Sav.   Co.   V.  Edwards,  C.   C.   A.,   164  Co.,  86  Fed.  439,  497;   N.  Y.  M.  L. 

Fed.   809,  811.  Ins.   Co.   v.  Seaman,  80  Fed.  3.57. 

27Shipman     v.     Ohio     Coal     Ex-  32  Tyler  v.  Simmons,  6  Paige  Ch, 

change,  C.  C.  A.,  70  Fed.  652;  Far-  (N.   Y.)    127. 

rar  v.  Bernheim,  C.   C.   A.,  75  Fed.  33  Empire  Trust  Co.  v.  Egypt  Ey. 

136.  Co.,  182  Fed.  100. 

28  City  of  Denver  V.  Denver  Union  34  Westlake  v.  Marrin,  176  Fed. 
Water  Co.,  246  IT.  S.  178;  Bates  v.  742;  .svpra,  §391. 

Dresser,  229  Fed.  772.  35  Empire  Trust  Co.  v.  Egypt  By. 

29  Central     Improvement     Co.     v.       Co.,  182  Fed.  100. 

Cambria    Steel  Co.,    C.    C.    A.,    201           36  Witters  v.  Soule,  43  Fed.  405; 

Fed.   811.  Kelsey    v.    Hobby,    16   Pet.   269,    10 

30  Taylor  v.  Robertson,  27  Fed.  L.  ed.  961;  Parks  v.  Booth,  102  U. 
537.  S.  96,  26  L.  ed.  54. 


§  394]  JUDICIAL  SALES  1931 

entered  in  a  State  court,  in  a  suit  between  the  same  parties, 
it  was  held  that  the  judgment  of  the  State  court  must  be  fol- 
lowed on  the  hearing  of  the  exceptions  to  the  report  of  the 
master,^"'  but  in  the  hearing  of  the  exceptions  the  former  rulings 
of  the  court  will  almost  invariably  be  followed.** 

Where  exceptions  to  the  report  of  a  master  are  sustained,  the 
court  has  discretionary  power  to  order  a  re-reference  for  further 
testimony  or  to  enter  a  final  decree  upon  tlie  facts  appearing 
in  the  case;  and  an  appellate  court  will  not  ordinarily  inter- 
fere with  the  exercise  of  such  discretion. ^^ 

The  party  who  files  exceptions  is  obliged  to  pay  five  dollars 
costs  for  each  exception  overruled,  and  is  entitled  to  these  costs 
for  each  exception  allowed.*'' 

By  leave  of  the  court  exceptions  may  be  amended.*^  It  has 
been  held  that  objections  to  tlie  report  which  are  not  discussed 
in  the  brief  of  the  objectors  will  be  presumed  to  be  waived.*^ 
An  objection  to  a  master's  report  not  raised  below  will  ordi- 
narily not  be  considered  upon  an  appeal."  The  review  of  a 
master's  report  upon  a  receiver's  account  is  described  in  a 
preceding  section.** 

§  394.  Judicial  sales  by  masters  and  other  officers.  Sales 
under  the  direction  of  a  court  of  equity  are  usually  made  by 
masters,  by  either  one  of  the  general  masters  or  a  special  master 
appointed  by  the  court. ^  A  receiver  in  equity  maj'  be  authorized 
to  sell  property  without  the  intervention  of  a  ma.ster.^  A  re- 
ceiver,* or  trustee  in  bankruptcy,  has  also  the  same  powers.* 
But  ordinarily  when  receivers  have  been  appointed  by  a  court 
of  equity,  public  sales  of  property  in  their  possession  are  made 
by  a  master. 

A  sale  of  real  estate  bej'ond  the  jurisdiction  of  the  court  is 

SVDuden  v.  Maloy,  43  Fed.  407.  ii  Sit  pro,  §319. 

38  Moore    v.    Clymer-Jones    Lithe-  §  394.  1  Guaranty  Tr.  Co.  v.  Met- 

graph  Co.,  223  Fed.  877.  ropolitan  St.  By.  Co.,  C.  C.  A.,  168 

39Mosher   v.   Joyce,  51   Fed.   441.  Fed.  937,  177  Fed.  925. 

40  Equity  Rule   67.  2  Horner    v.    Continental    &    Com- 

41  Jones  v.  Lamar,  39  Fed.  585.  niereial   Trust    &    Savings   Bank,    C. 

42  Bibber-White      Co.      v.      White  C.   A.,   198  Fed.   832. 
River   Valley    El.   R.    Co.,    175   Fed.  S  Be  Becker,  98  Fed.  407. 

470.  me    Britannia    Mining    Co.,    197 

43  Topliff  V.  Topliff,  145  IT.  S.  Fed.  459.  Chapter  on  Bankruptcy, 
156,  173,  36  L.  ed.  658,  665.  infra. 


1932 


PROCEEDINGS  IN  A  MASTER'S  OFFICE 


[§394 


void  unless  confirmed  by  the  owner.^  Where  all  parties  in  in- 
terest were  before  the  court  and  could  be  compelled  by  its  order 
to  confirm  the  sale,  sales  of  land  beyond  the  outside  of  the  ju- 
risdiction were  allowed.^ 

The  fact  that  the  title  to  land  is  being  litigated  in  another 
court  is  not  an  insuperable  objection  to  its  judicial  sale.''^ 

A  foreclosure  sale  should  not  be  ordered  until  the  amount 
due  from  the  mortgagor  has  been  judicially  determined  so  that 
he  and  junior  incumbrancers  may  be  able  intelligently  to  de- 
cide whether  to  redeem.^  A  substantial  error  in  such  an  ad- 
judication will  necessitate  a  reversal  of  the  decree.^  It  is  cus- 
tomary to  order  a  reference  to  a  master  to  determine  the  amount 
due,  but  the  court  may  make  the  computation  without  a  master's 
aid.i*'  In  a  proper  case,  a  court  of  equity  having  the  possession 
by  a  receiver  of  the  property  of  an  insolvent  railway  company, 
may  make  an  interlocutory  decree  or  order  for  the  sale  of  the 
property  by  a  master  before  the  rights  of  the  parties  under 
the  several  mortgages  have  been  fully  ascertained  and  deter- 


5  James  v.  Milwaukee  &  M.  E. 
Co.,  6  Wall.  752,  18  L.  ed.  885; 
Chicago,  D.  &  V.  E.  Co.  v.  Posdick, 
106  U.  S.  47,  27  L.  ed.  47;  Alabama 
&  G.  M.  Ey.  Co.  V.  Eobinson,  C.  C. 
A.,  56  Fed.  690;  Grape  C.  C.  Co. 
V.  Farmers'  L.  &  Tr.  Co.,  C.  C.  A., 
63  Fed.   891. 

6  §  64  mpra,  §  398,  infra. 

7  Fidelity  I.,  Tr.  &  S.  D.  Co.  v. 
Eoanoke  Iron  Co.,  84  Fed.  752.  Cf. 
supra,    §  52. 

8  Chicago,  D.  &  V.  E.  Co.  v.  Fos- 
diek,  106  U.  S.  47,  27  L.  ed.  47.  It 
has  been  said  that  a  decree  is  not 
defective  where  it  fails  to  adjudi- 
cate before  the  sale  the  amount  of 
costs,  counsel  fees  and  compensa- 
tion to  the  trustee  which  it  requires 
the  mortgagor  to  pay  in  order  to 
redeem  the  property.  Grape  C.  C. 
Co.  V.  Farmers'  L.  &  Tr.  Co.,  C.  C. 
A.,  72  Fed.  708,  712. 

The  trustee  cannot  foreclose  the 
mortgage  for  a  greater  amount  of 
bonds  than  have  been  actually  sold 


or  pledged  although  more  have  been 
certified.  Equitable  Trust  Co.  v. 
Great  Shoshone  &  Twin  Falls  Water 
Co.,  228  Fed.  516.  The  burden  is 
upon  the  trustee  to  show  how  many 
bonds  have  thus  been  issued.  Ibid. 
Equitable  Trust  Co.  v.  Great  Sho- 
shone &  Twin  Falls  Water  Power 
Co.,  228  Fed.  516.  Upon  distribu- 
tion of  the  proceeds  the  holder  of 
bonds  as  collateral  security  for  a 
debt  of  the  mortgagor  cannot  col- 
lect more  than  the  actual  indebted- 
ness due  him.  Ibid.  A  provision 
which  gives  the  holders  of  the  ma- 
jority in  interest  of  the  bonds  se- 
cured by  the  mortgage,  the  option 
to  declare  the  principle  due  upon  a 
default  in  interest  does  not  prevent 
a  foreclosure  for  default  in  interest. 
Ibid.     See  infra,  §  401. 

9  James    v.    Milwaukee    &    M.    E. 
Co.,  6  Wall.   752. 

10  Brown   v.   Grove,   C.   C.   A.,   80 
Fed.   564. 


§394] 


JUDICIAL  SALES 


1933 


mined. ^^  When  there  was  no  clonbt  as  to  the  insolvency  of 
the  mortgagor  and  no  defense  to  the  foreclosure,  the  decision 
of  the  questions  whether  the  hoklers  of*  tlie  bonds  were  the 
absolute  owners  thereof  or  held  them  as  collateral  ^^  and  whether 
a  majority  of  the  bonds  were  issued  witliout  consideration  ^^ 
has  been  reserved  until  llie  distribution  of  the  proceeds  of  the 
sale. 

Where  all  the  lienors  are  before  it,  the  court  of  equity  may 
order  a  sale  of  the  property  which  is  the  subject-matter  of 
the  action,  without  settling  the  respective  rights  and  priorities 
of  the  parties,  and  will  then  transfer  their  respective  liens  to 
the  proceeds.^*  Tliis  has  been  done  in  a  suit  in  equity  by  an 
assignee  in  bankruptcy,^^  and  the  same  power  is  exercised  by 
courts  of  bankruptcy  in  bankruptcy  proceedings.^^    It  has  been 

Iff  ^ 

held  that  this  can  be  done  in  the  case  of  maritime  liens  when 
the  lienors  have  voluntarily  submitted  themselves  to  the  ju- 
risdiction of  the  court  of  equity."  A  court  of  equity  will  not 
make  an  interlocutory  order  for  an  immediate  sale  of  mortgaged 


11  Pennsylvania  R.  Co.  v.  Alle- 
gheny V.  R.  Co.,  42  Fed.  82,  8.5; 
First  Nat.  Bank  v.  Schedrl,  121  U. 
S.  74,  30  L.  ed.  877. 

12  Fidelity  Trust  Co.  v.  Washing- 
ton Oregon  Corp.,  217  Fed.  588,  602. 
See  Central  Tr.  Co.  v.  California  & 
N.  E.  Co.,  110  Fed.  79;  Land  Title 
&  Trust  Co.  V.  Tatanall,  C.  C.  A., 
132  Fed.  305,  65;  Merc.  Trust  Co.  v. 
U.  S.  Shipbuilding  Co.,  130  Fed. 
725;  Central  Trust  Co.  v.  Cincin- 
nati, H.  &  D.  Ry.,  169  Fed.  466; 
Trust  Co.  of  Am.  v.  Norfolk,  etc. 
R.  R.   Co.,  174  Fed.  269. 

13  Equitable  Trust  Co.  v.  Great 
Shoshone  &  T.  F.  W.  P.  Co.,  228 
Fed.  516. 

UMcGraw  v.  Mott,  C.  C.  A.,  179 
Fed.  646;  Bowling  Green  Trust  Co. 
V.  Virginia  P.  &  P.  Co.,  164  Fed. 
753;  Guaranty  Trust  Co.  v.  Metro- 
politan St.  Ry.  Co.,  168  Fed.  937, 
aff'd,  C.  C.  A.,  177  Fed.  925;  Con- 
tinental &  C.  T.  &  S.  Bank  v.  North. 


Platte  Val.  Irr.  Co.,  219  Fed.  438. 

16  Be  Mead,  58  Fed.  312. 

IS  Be  Keet,  128  Fed.  651.  See 
Chapter  on  Bankruptcy,  infra. 

A  provision  which  gave  the  ma- 
jority the  right  to  prevent  a  fore- 
closure would  be  void  if  construed 
so  as  to  prevent  a  bond  holder 
from  bringing  a  foreclosure  suit 
where  the  majority  had  con- 
spired with  the  mortgagor  to  de- 
fraud the  minority.  Brown  v.  Den- 
ver Omnibus  Co.,  C.  C.  A.,  254  Fed. 
560.  In  the  absence  of  provision 
therefor  in  the  mortgage  it  is  a 
breach  of  duty  to  permit  a  commit- 
tee not  representing  all  the  bond- 
holders to  control  foreclosure  pro- 
ceedings and  .select  counsel  to  fore- 
close. United  States  &  M.  T.  Co.  v. 
United  States  &  M.  T.  Co.,  C.  C.  A., 
250   Fed.   377. 

17  Hudson  V.  N.  Y.  &  Albany 
Transp.  Co.,  C.  C.  A.,  180  Fed.  973. 


1934 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§394 


property  upon  terms  discharging  the  lien  of  a  mortgage  not 
yet  due,  unless  it  clearly  appears  that  in  the  end  there  must 
be  not  only  a  sale  of  the  property,  but  a  sale  upon  those  terms.^^ 

In  determining  when  a  sale  should  be  made,  the  court  may 
consider  a  plan  of  reorganization  which  has  been  proposed  by 
interested  parties. ^^  Ordinarily  the  objections  made  to  a  plan 
of  reorganization  should  be  heard  and  disposed  of  before  the 
sale.20 

Wliere  the  property  is  perishable,  a  sale  should  be  ordered 
immediately ;  ^^  and  in  such  a  case  the  purchaser  acquires  a 
good  title  against  all  the  world,  which  will  not  be  affected  by 
a  subsequent  adjudication  of  bankruptcy  that  invalidates  the 
lien,  in  proceedings  to  enforce  which  the  sale  was  made.^^ 

An  appeal  may  be  taken  at  once  from  the  order  for  the 
sale,  provided  the  sale  is  to  take  place  immediately ;  ^  but  not 
if  any  subsequent  proceedings  and  order  must  precede  it.^* 
Pending  an  appeal,  the  court  which  ordered  the  sale  may  post- 
pone the  same,  although  no  supersedeas  has  been  obtained  and 
the  term  at  which  the  decree  Avas  entered  has  expired.^^ 

When  property  is  ordered  to  be  sold  by  a  master,  it  must  be 
sold  at  public  auction,  unless  the  court  otherwise  directs.^^  Such 
a  sale  is  conducted  under  the  superintendence  of  the  solicitor  for 
the  party  at  whose  prayer  the  sale  is  made,  and  in  all  questions 
which  subsequently  arise  betAveen  the  buyer  and  the  seller  it  has 
been  said  that  he  is  considered  as  the  agent  of  all  the  parties  to 
the  suit.^'     The  particulars,  conditions  and  notices  of  the  sale 


18  Pennsylvania  E.  Co.  v.  Alle- 
gheny V.  R.  Co.,  42  Fed.  82,  86. 

19  Bowling  Green  Tr.  Co.  v.  Vir- 
ginia Passenger  &  Power  Co.,  164 
Fed.  753;  Gay  v.  Hudson  Eiver  El. 
Power  Co.,  C.  C.  A.,  169  Fed.  1020. 

20  U.  S.  &  M.  T.  Co.  V.  U.  S.  & 
M.  T.  Co.,  250  Fed.  378.  See  supra, 
§  310a. 

21  Jones  V.  Springer,  226  IT.  S. 
148,  57  L.  ed.  161. 

22  Ibid. 

23  First  Nat.  Bank  v.  Shedd,  121 
U.  S.  74,  30  L.  ed.  877. 

24  Burlington,  C.  R.  &  N.  Ry.  Co. 
V.  Simmons,  123  TJ.  S.  52,  55,  31  L, 
ed.  73,  74. 


2B  Bound    V.    South    Carolina   Ry. 

Co.,  55  Fed.  186.  As  to  laches  which 
will  defeat  an  application  for  an  in- 
junction to  stay  a  sale,  see  Duncan 
V.  Atlantic  M.  &  O.  R.  Co.,  88  Fed. 
R.  840;  Foley  v.  Guaranty  Tr.  &  S. 
D.  Co.,  C.  C.  A.,  74  Fed.  759. 

26Danieirs  Ch.  Pr.,  ch.  xxvi; 
Hutson  V.  Sadler,  31  W.  Va.  358; 
Bound  V.  South  Carolina  Ry.  Co.,  46 
Fed.  315. 

27  Dalby  v.  Pullen,  1  R.  &  M.  296. 
But  see  Blossom  v.  Railroad  Co.,  3 
Wall.  196,  207,  18  L.  ed.  43,  46. 


§394j 


JUDICIAL  SALES 


1935 


are  prepared  by  liim,  subject  to  the  approval  of  the  master, 
when  not  prescribed  in  the  order  for  tlie  sale.^s  They  should 
be  entitled  in  the  cause,  and  should  contain  a  general  descrip- 
tion of  the  nature  and  situation  of  the  property;  and  if  land 
is  sold,  the  notices  should  state  in  whose  possession  it  is  or  has 
lately  been.^^  In  a  foreclosure  suit  the  desci-iption  of  tiie  proji- 
erty  given  in  the  mortgage  is  usually  sufficient.^" 

In  the  case  of  a  sale  of  a  large  and  complicated  system  of 
street  railroads  operated  by  receivers,  it  was  lield  that  a  pro- 
vision for  a  minute  inventory  covering  the  amount  of  fuel, 
supplies  and  material  for  repairs,  which  were  of  a  value  not 
in   excess  of  $100  each,   was  not  necessary   nor   practicable.^^ 


28  Daniell  's  Ch.  Pr.,  ch.  xxvi. 

29  Ibid. 

30  Norma  Mining  Co.  v.  Mackay, 
C.  C.  A.,  258  Fed.  914. 

31  Guaranty  Trust  Co.  v.  Metio- 
liolitan  St.  Ey.  Co.,  168  Fed.  937, 
aff'd  C.  C.  A.,  177  Fed.  925;  La- 
combe,  J.  (938)  :  "In  the  operation 
of  a  large  and  complicated  system 
like  this,  the  items  of  personal  prop- 
erty required  for  operation,  repair, 
and  construction  are  constantly  fluc- 
tuating. At  whatever  time  an  in- 
ventory might  be  made,  it  would  be 
found  a  few  weeks  later  to  inaccur- 
ately represent  then  existing  condi- 
tions. Such  an  inventory  is  not 
necessary.  The  cars  will  be  listed, 
described,  and  identified  by  num- 
bers, and  so  will  the  larger  units  of 
machinery.  The  annual  inventory 
and  the  books  of  the  receivers  will 
be  open  to  bidders,  who  will  also  be 
given  access  to  all  power  houses, 
shops,  cars,  and  storage  barns.  Cer- 
tainly no  one  will  bid  for  this  rail- 
road property  without  the  advice  of 
skilled  and  experienced  engineers, 
whose  inspection  of  the  property 
and  what  may  be  found  on  it, 
coupled  with  tlie  list  of  cars,  etc., 
provided  for  in  the  decree,  will  give 
all   the   information   needed   for  the 


exercise  of  an  intelligent  judg- 
ment.'' This  decree  was  modified 
in  this  respect  upon  appeal  by  the 
following  provision  (177  Fed.  926): 
' '  That  an  inventory  shall  be  pre- 
pared by  the  special  master  and  by 
liim  left  with  the  clerk  of  this  court 
wlicn  and  as  directed  by  this  court. 
Tills  inventory  will  enumerate  the 
rolling  stock  of  the  road  in  the  pos- 
session of  the  receivers,  stating  the 
tyj)e  and  character  of  each  item  and 
giving  its  number.  This  inventory 
will  also  state  the  number  and  loca- 
tion of  the  various  dynamos,  trans- 
formers, and  converters,  and  the 
iHimber  of  horses.  The  inventory 
shall  include  such  other  articles  of 
personal  property  in  the  possession 
of  the  receivers  as  in  their  opinion 
are  of  a  value  in  excess  of  one  hun- 
dred dollars  each,  and  such  addi- 
tional articles  as  the  special  master 
shall  think  it  wise  to  include.  Such 
inventory  and  valuation  shall  be  ad- 
visory only,  and  shall  not,  with  re- 
spect to  value  or  title  or  any  other 
matter,  be  construed  as  a  warranty, 
but  all  jmrchases  shall  be  deemed  to 
be  made  in  reliance  upon  the  pur- 
chaser 's  own  knowledge  or  informa- 
tion as  to  the  property  purchased. 
The    property,   both    real   and    per- 


1936 


PROCEEDINGS  IN  A  MASTER'S  OFFICE 


[§394 


A  decree  of  foreclosure,  which  orders  a  sale  of  all  the  property 
of  the  mortgagor,  is  not  construed  as  directing  a  sale  of  money 
collected  by  a  receiver  of  his  property,  unless  it  expressly  so 
directs.^^  A  sale  by  a  receiver  is  not  invalidated  by  his  an- 
nouncement at  the  sale  that  the  purchaser  will  have  the  option 
also  to  buy  other  property  not  covered  by  the  order  of  sale 
but  acquired  by  him  in  the  due  course  of  his  receivership.'^ 
Where  property,  not  embraced  in  a  decree  of  foreclosure,  is 
seized  for  sale  by  the  master,  he  is  liable  to  the  owner  in  tres- 
pass; but  an  application  to  recover  the  possession  of  the  prop- 
erty can  only  be  made  to  the  court  that  appointed  him.'*  An 
obscurity  in  the  description  may  be  a  ground  for  refusing  to 
confirm  the  sale ;  '^  but  it  would  rarely  be  a  reason  for  setting 
aside  a  sale  after  its  confirmation.'^  Where  the  State  statute 
requires  an  appraisal  before  a  sale  it  should  usually  be  fol- 
lowed." but  a  failure  to  do  so  does  not  make  the  sale  void  for 
want  of  jurisdiction  or  subject  to  collateral  attack.'® 

The  conditions  of  the  sale  should  be  in  general  similar  to 
those  annexed  to  ordinary  sales  of  similar  property  in  the 
vicinity.'^  The  sale  should  be  advertised  at  least  twice  and 
the  advertisement  should  give  such  a  description  of  the  prop- 
erty as  clearly  to  indicate  and  identify  it.*°  The  Act  of  March 
3,  1893  provides:  "Sec.  3.  That  hereafter  no  sale  of  real  estate 
under  any  order,  judgment,  or  decree  of  any  United  States 
Court  shall  be  had  without  previous  publication  of  notices  of 
such  proposed  sale  being  ordered  and  had  once  a  week  for  at 


sonal,  hereby  directed  to  be  sold, 
may  be  inspected  by  intending  bid- 
ders at  the  sale  hereunder,  subject 
to  such  reasonable  regulations  as  the 
receivers  may  prescribe. ' ' 

32  Washington  Irr.  Co.  v.  Califor- 
nia S.  D.  &  Tr.  Co.,  C.  C.  A.,  115 
Fed.  20. 

33  Lake  S.  I.  Co.  v.  Brown,  Bon- 
nell  &  Co.,  44  Fed.  539. 

34  Perry  v.  Tacoma  Mill  Co.,  C. 
C.   A.,   152   Fed.   115. 

35  In  Ee  Cheatham,  210  Fed.  370, 
373. 

36  Se  Burr  Mfg.  &  Supply  Co., 
217  Fed.    16. 


37i?e  Irvine,  255  Fed.  168. 

38  South  Dakota  C.  Ey.  Co.  v. 
Continental  &  C.  T.  &  S.  Bank,  C. 
C.  A.,  255  Fed.  941. 

39  Ibid.  See  Bacon  v.  N.  W.  M. 
L.  I.  Co.,  131  U.  S.  258,  33  L.  ed. 
128;  Treadwell  v.  United  V.  C.  Co., 
47  App.  Div.   (N.  Y.)   613. 

40Kauffman  v.  Walker,  9  Md. 
229;  Merwin  v.  Smith,  1  Green  Ch. 
(N.  J.)  182;  Daniell's  Ch.  Pr.,  ch. 
xxvi.  See  Eay  v.  Oliver,  6  Paige 
(N.  Y.),  489;  Treadwell  v.  United 
V.  C.  Co.,  47  App.  Div.  (N.  Y.)  613. 


394] 


JUDICIAL  SALES 


1937 


least  four  weeks  prior  to  such  sale  in  at  least  one  newspaper 
printed,  regularly  issued  and  having  a  general  circulation  in 
the  county  and  State  where  the  real  estate  proposed  to  be  sold 
is  situated,  if  such  there  be.  If  said  property  shall  be  situated 
in  more  than  one  county  or  state,  such  notice  shall  be  pub- 
lished in  such  of  the  counties  where  said  propertj'  is  situated, 
as  the  court  may  direct.  Said  notice  shall,  among  other  things, 
describe  the  real  estate  to  be  sold.  The  court  may,  in  its  discre- 
tion, direct  the  publication  of  the  notice  herein  provided  for, 
to  be  made  in  such  other  paper  as  may  seem  proper. ' '  *^  This 
statute  is  mandatory .^^  It  has  been  held  that  a  purchaser,  even 
after  confn-mation,  can  reject  the  title  because  of  a  failure  to 
comply  with  the  act.*^    It  is  the  safer  practice  for  trustees  and 


4127  St.  at  L.  751,  3  Fed.  St. 
Ann.  54,  Comp.  St.  §  1642.  In 
the  district  of  Arizona  where  the 
statute  directed  that  sales  of  real 
property  at  execution  be  sold 
"between  the  hours  of  ten  o'clock 
A.  M.  and  four  o'clock  P.  M. " 
(Arizona  E.  S.  1901,  §2570)  it 
was  held  that  a  notice  of  sale  "be- 
tween the  legal  hours  of  sale ' '  on 
a  specified  day  at  the  door  of  the 
county  court  house  which  was  speci- 
fied, was  sufficient.  ' '  Persons  who 
see  the  advertisement  and  desire  to 
attend  the  sale  can  easily  ascer- 
tain the  hour  by  inquiring  of  the 
parties  about  to  make  the  sale.  If 
unwilling  to  wait  at  the  appointed 
place,  and  if  deceived  by  them  and 
prevented  from  making  the  desired 
bid,  the  sale  might  be  set  aside. 
To  require  the  advertisement  to 
name  the  precise  hour  would  lead 
to  much  practical  inconvenience,  and 
often  necessitate  a  postponement  of 
the  sale.  It  is  sometimes  very  de- 
sirable for  the  interests  of  the 
debtor  to  delay  a  sale  for  two  or 
three  hours  in  order  to  wait  the 
arrival  of  persons  expected  to  bid ; 
or,    in    consequence    of    a    storm    or 


some  other  unforeseen  emergency. 
Moreover,  if  a  particular  hour  were 
named  in  all  cases,  the  question 
whether  the  sale  had  been  held  at 
that  hour  named  would  be  a  fruit- 
ful source  of  litigation.  The  mode 
adopted  in  this  case  has  been  so 
generally  in  use  as  the  most  con- 
venient mode,  and  has  been  so  free 
from  any  evil  consequences  that  we 
are  not  inclined  to  hold  an  adver- 
tisement in  this  form  to  be,  of  it- 
self, a  sufficient  reason  for  setting 
aside  a  sale,  the  hours  named  be- 
ing within  the  ordinary  business 
hours  of  day. ' '  Norma  Min.  Co. 
V.  Mackay,  C.  C.  A.,  258  Fed.  914, 
916. 

42  Cumljeiland  Lumber  Co.  v. 
Tunis  Lumber  Co.,  C.  C.  A.,  171 
Fed.  352. 

43  Cumlierland  Lumber  Co.  v. 
Tunis  Lumber  Co.,  C.  C.  A.,  171 
Fed.  352.  But  see  Godchaux  v. 
Morris,  C.  C.  A.,  121  Fed.  482.  It 
has  been  held  that  a  party,  by  not 
opposing  a  motion  to  confirm  the 
sale,  of  which  notice  has  been  served 
upon  his  attorney  in  the  suit, 
waives  any  objection  founded  upon 
a  failure  to  comply  with   this   stat- 


1938 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§394 


receivers  in  bankruptcy  to  comply  with  the  law  **  although  there 
are  rulings  that  it  does  not  apply  to  sales  in  bankruptcy.*^  It 
applies  to  Federal  courts  subsequently  created  and  it  has  been 
said  to  cover  "any  possible  new  forms  of  judicial  sales  under 
decrees  then  known  as  foreclosures,  execution,  partition  sales."  ^ 
It  supersedes  the  provisions  in  any  mortgage  and  trust  deed  and 
a  foreclosure  decree  need  not  conform  to  the  latter,*''^  although 
it  is  the  safer  practice  to  comply-  with  both  the  statute  and  the 
instrument.  It  has  been  held  that  such  an  advertisement  once 
a  week  for  only  twenty-seven  days  before  the  sale  is  not  a  com- 


ute.  Nevada  Nickel  Syndicate  v. 
National  N.  Co.,  103  Fed.  391. 

a  Be  Britannia  Mining  Co.,  C.  C. 
A.,  203  Fed.  450,  reversing  197  Fed. 
459. 

45  Be  National  Mining  Explora- 
tion Co.,  D.  Mass.  193  Fed.  232. 
It  has  been  held,  in  bankruptcy, 
that  an  advertisement  is  sufficient 
when  it  requests  bids  to  be  sub- 
mitted at  a  certain  date,  time  and 
place,  and  calls  a  meeting  of  the 
creditors  then  and  there  to  act  upon 
any  bid  that  may  be  submitted.  Be 
Nevada-Utah  Mines  &  Smelters 
Corporation,  198  Fed.  497.  It  has 
been  held:  that,  in  bankruptcy,  the 
local  rule  requiring  the  sale  by  the 
official  auctioneer  and  a  conspicu- 
ous notice  in  front  of  the  premises 
two  days  before,  may  be  disre- 
garded; and  that  it  is  sufficient 
if  bidders  are  requested  and  per- 
mitted to  make  their  bids  at  a  credi- 
tors '  meeting.  A  public  sale  was 
thus  defined :  ' '  That  all  persons 
shall  have  the  right  to  come  in  and 
bid,  that  the  bids  shall  not  be  held 
open,  except  with  the  bidders'  con- 
sent, and  that  notice  shall  be  given 
publicly  at  which  all  bids  are  in- 
vited. ' '  The  court  said  however : 
' '  This  proceeding  should  certainly 
not    be    taken    as    a    precedent    for 


any  other.  The  only  justification 
for  it  was  that  the  pledgee  was 
threatening  a  sale  of  an  important 
part  of  the  property,  and  there  was 
every  reason  to  suppose  that  the 
usual  time  for  advertisement  of  the 
property  could  not  safely  take  place 
after  the  order  of  the  referee  for 
a  sale.  That  justified  and  required 
in  this  instance  a  somewhat  anom- 
alous procedure. ' '  Be  Nevada- 
Utah  Mines  &  Smelters  Corporation, 
198  Fed.  497,  499,  per  Learned 
Hand,  J.  Definition  disapproved; 
s.  c,  C.  C.  A.,  202  Fed.  126.  In 
Florida  real  property  must  be  sold 
under  executors,  at  the  door  of  the 
county  where  the  land  is  situated. 

46  Be  Nevada-Utah  Mines  &  Smel- 
ters Corp.,   198  Fed.  497. 

47  Provident  Life  &  Trust  Co.  v. 
Camden  &  T.  Ey.  Co.,  C.  C.  A.,  177 
Fed.  854.  It  has  been  held  that  a 
foreclosure  sale  cannot  be  collater- 
ally attacked  in  another  suit  filed 
by  creditors  against  the  mortgagees 
and  others  because  of  the  failure 
of  the  decree  to  comply  with  a  State 
statute  regulating  the  time  allowed 
for  a  redemption  before  a  sale.  An- 
drews V.  National  F.  &  P.  Works, 
C.  C.  A.,  36  L.E.A.  153,  77  Fed. 
774. 


§  394]  JUDICIAL  SALES  1939 

pliance  with  the  statute."  Where  a  sale  wax  eried  substantially 
at  the  hour  advertised,  and  no  objection  because  of  the  delay  was 
then  made,  it  was  not  invalidated  because  efforts  made  to  enjoin 
the  sale  had  caused  a  slight  delay.*^  The  master  has  power  to 
adjourn  the  sale,  even  after  the  auction  has  begun  and  bids 
have  been  madc.^**  A  State  court  has  held  that,  where  a  sal.- 
is  adjourned,  no  advertisement  of  the  adjournment  is  required. ^^ 

The  same  statute  further  provides-.  "That  all  real  estate 
or  any  interest  in  land  sold  under  any  order  or  decree  of  any 
United  States  Covirt  shall  be  sold  at  public  sale  at  the  Court- 
house of  the  county,  parish,  or  city  in  which  tlie  iiroperty,  or 
the  greater  part  thereof,  is  located,  or  upon  tlio  i)remises,  as 
the  court  rendering  such  order  or  decree  of  sale  may  direct."  ^^ 
"That  all  personal  property  sold  under  any  order  or  decree  of 
any  Court  of  the  United  States  shall  be  sold  as  provided  in 
the  first  section  of  this  act,  unless  in  tlie  opinion  of  the  court 
rendering  sucli  order  or  decree,  it  would  be  best  to  sell  it  in 
some  other  manner.  "^3  A  decree,  merely  directing  the  com- 
missioner to  sell  the  property  "in  the  city  of  Grafton,"  to  the 
highest  and  best  bidder,  is  not  erroneous,  since  it  will  be  pre- 
sumed that  the  commissioner  will  advertise  and  sell  the  prop- 
erty ill  pursuance  of  the  federal  statute.^*  An  omission  1o  com- 
ply ^A-ith  this  statute  does  not  make  the  sale  void;  nor,  it  has 
been  held,  is  it  a  ground  for  refusing  confirmation,  sin^-e  the 
decree,  although  erroneous,  is  binding,  unless  reversed  upon 
appeal.55  It  has  been  held  not  to  apply  to  sales  by  a  trustee 
in  bankruptcy.^® 

In  the  case  of  a  sale  by  trustees  in  bankruptcy  of  land  situ- 
ated in  another  and  distant  district,  it  was  held  they  need  not 
he  i)resent,  but  might  employ  an  auctioneer  and  leave  the  con- 

48  Wilson  V.  N.  Y.  Mut.  L.  I.  Co.,  52  27    St.    at    L.    751,    ."^    Fed.    St. 
65  Fori.  38.  Ann.  54,  Comp.  St.  710,  S  1,  Pierce's 

49  Etna  Coal  &  Iron  Co.  v.  Mart-  Fed.   Code,  §  7682. 
ing  Iron  &  Steel  Co.,  C.  C.  A.,  127  63  Ibid. 

ppfj    32.  54rirafton    Hotel    Co.    v.    Walsii. 

50  Blossom     v.     Railroad     Co.,     3       C  C  A.,  228  F.d.  5. 

Wall.    19fi,    18    L.    ed.    43.      As    to  55  Godclianx   v.    Morris,   C.    C.    A.. 

resales   see   Miller    v.    Owens,    C.    C.  121  Fed.  482. 

A.,  203  Fed.  648.  56  2?^  La   Fran('e  Copper  Co.,  205 

61  White    V.    Znst,    28    N.    J.    Eq.  Fed.   207. 
107. 


1940 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§394 


duct  of  the  sale  to  him,  the  deposit  required  of  bidders  and 
the  balance  of  the  purchase  money  being  paid  directly  to  them," 
The  decree  for  the  sale  need  not  name  the  master  who  is  to 
conduct  it;  and  in  case  of  such  an  omission  the  sale  can  be 
conducted  by  any  master  in  whose  lands  plaintiff  places  a  cer- 
tified copy  of  the  decree.^^ 

The  sale  is  conducted  in  substantially  the  following  manner: 
The  master,  his  clerk,  or  a  person  appointed  by  him,  is  pres- 
ent with  a  paper  upon  which  the  biddings  for  the  different 
lots  are  to  be  marked.^s  The  lots  are  successively  put  up  at  a 
price  offered  by  any  person  present ;  such  person,  according  to 
the  English  practice,  signing  his  name  to  the  sum  which  he 
offers  on  the  paper.^ 

In  a  proper  case  the  court  may  direct  that  the  property  be 
sold  as  a  whole  and  not  in  parcels.^^ 

If  the  property  to  be  sold  consists  of  a  railroad  and  its  ap- 
purtenances, it  is  usually  sold  as  a  single  thing.62  tj^^  ^^^^ 
rule  has  been  applied  to  a  complicated  street  railway  system  ^ 


5T  Be  National  Mining  Explora- 
tion Co.,   193  Fed.   232. 

58  Seaman  v.  N.  W.  M.  L.  I.  Co., 
86  Fed.  493,  497. 

59Daniell's  Ch.  Pr.,  ch.  xxvi. 

eODaniell's  Ch.  Pr.  ch.  xxvi.  "A 
bid  for  property  of  a  bankrupt 
means  what  is  commonly  under- 
stood as  a  bid;  that  is  to  say,  the 
purchaser  is  to  pay  something  to 
the  reeciver  for  the  property  pur- 
chased, and  the  receiver  distributes 
the  proceeds  among  the  creditors." 
It  vras  there  held  that  "a  proposi- 
tion to  have  a  new  corporation  take 
over  all  the  assets  of  the  bankrupt, 
except  a  few  contracts,  and  then 
have  the  creditors  of  the  bankrupt 
directly  accept,  in  place  of  their 
claims  against  the  bankrupt,  unse- 
cured obligations  of  the  new  corpo- 
ration, payable  at  different  dates  in 
the  future,  running  from  9  to  27 
months,"  was  not  a  bid.  Be  J.  B. 
&  J.  M.  Cornell  Co.,  186  Fed.  859, 
860. 


61  Be  Haywood  Wagon  Co.,  219 
Fed.   655. 

62  Bound  v.  South  Carolina  Ey. 
Co.,  46  Fed.  315;  Compton  v.  Jesup, 
C.  C.  A.,  68  Fed.  263.  This  was 
done  where  a  mortgage  secured 
three  series  of  bonds,  each  of  which 
had  a  prior  lien  upon  one  of  three 
divisions  of  the  railroad  and  a  sub- 
ordinate lien  upon  the  other  two. 
Farmers'  L.  &  Tr.  Co.  v.  Cape  F. 
&  V.  V.  Ey.  Co.,  82  Fed.  344. 

63  Guaranty  Trust  Co.  v.  Metro- 
politan St.  Ey.  Co.,  168  Fed.  937, 
aff'd  C.  C.  A.,  177  Fed.  925.  Where 
a  part  of  a  street  railroad  system 
covered  by  a  first  mortgage  could 
not  be  successfully  operated,  with- 
out connection  with  the  remainder 
covered  by  another  mortgage,  which 
was  also  a  second  mortgage  upon 
such  part,  and  no  bids  were  received 
on  the  sale  of  the  part,  the  sale  of 
the  same  was  adjourned  to  the  same 
date  as  the  sale  of  that  covered  by 
the  second  mortgage.    Morton  Trust 


§  394]  JUDICIAL  SALES  1941 

and  to  tlie  plant  and  connections  of  a  water  company.^^ 

The  master  may  be  directed  to  offer  the  property  first,  in 
separate  lots  and  then  as  an  entirety,  and  to  accept  the  highest 
bid  made  at  both  sales.^^  In  the  ease  of  a  railroad  company, 
the  decree  may  provide  that  the  property  shall  be  sold,  first, 
in  separate  lots  as  junk  and  then  the  whole  as  a  railroad  in 
operation,  and  for  the  benefit  of  the  public  direct  the  accept- 
ance of  the  higliest  bid  upon  the  second  offer,  although  this  is 
less  than  what  the  property  fetched  in  separate  lots,^  and  a 
sale  may  be  authorized  for  a  less  amount  to  a  bidder  who  under- 
takes to  continue  the  operation  of  the  road.^'  The  same  prac- 
tice is  often  followed  in  other  appropriate  cases.  It  has  been 
said  that  railroad  property  cannot  be  thus  sold  piecemeal  ex- 
cept by  the  consent  of  all  the  parties  expressed  in  open  court 
or  in  writing.^8 

Upon  the  foreclosure  of  divisional  mortgages  upon  the  prop- 
erty of  a  consolidated  Railroad  Company,  a  court  of  equity 
may  consolidate  the  different  foreclosure  suits.  In  the  separa- 
tion of  the  system  into  parcels  for  sale,  the  court  is  not  obliged 
to  make  the  divisions  so  as  to  correspond  exactly  with  the  several 
divisional  mortgages.  The  rights  of  the  parties  should  be  pro- 
tected not  overlooking  the  interest  of  the  public  in  the  con- 
tinued benefit  of  the  operation  of  the  public  highways.  The 
severance  from  one  division  of  a  part  necessary  to  its  success- 
ful operation  and  not  essential  to  the  operation  of  another  part, 
it  has  been  said,  cannot  be  justified  on  the  ground  of  mortgage 
descriptions  alone.  If  division  must  be  made,  it  should  be  so 
far  as  it  is  reasonably  possible  into  parts  which  will  leave  the 
various  divisions  as  nearly  as  may  be  in  situations  to  be  oper- 
ated as  railroads. ^^  AVhere  part  of  the  system  covered  by  a 
divisional  mortgage  had  been  operated  at  a  loss  it  was  held 
that  the  mortgagee  could  not  complain  because  of  its  severance 

Co.  V.  Metropolitan  St.  Ry.  Co.,  179  mouth    &   Exeter    St.    Ry.    Co.,    192 

Fed.  1010.  Fo<l.   728. 

64  City   of   New   Orleans   v.    How-  67  Ibid. 

ard,  C.   C.  A.,   160   Fed.  393;    Con-  68  Bound    v.    South    Carolina    Ry. 

tinental  &  C.  T.  &  S.  Bank  v.  North  Co.,  46  Fed.  315,  316. 

Platte  Val.   Trr.   Co.,  219  Fed.  438.  69  Metropolitan      Trust      Co.      v. 

66Bidwell  v.   Huff,  176  Fed.   174.  Chicago   &   E.    I.   R.    Co.,   C.   C.   A., 

66  New  York  Trust  Co.  v.  Ports-  253  Fed.  868,  880. 
Fed.  Prac.  Vol.  11—52 


1942 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§394 


from  the  rest  upon  the  sale.'''°  Upon  such  a  division  the  court 
sold  with  one  of  the  parts  the  equipment  used  in  its  opera- 
tion although  it  was  not  subject  to  the  mortgage  upon  the  latter, 
making  a  provision  for  the  allowance  of  its  appraised  value 
to  the  holders  of  the  mortgage  covering  such  equipment,  the 
expense  of  the  appraisal  being  charged  against  the  proceeds 
of  the  sale.'^i  A  direction  by  the  plaintiif 's  attorney  to  a  sheriff 
to  sell  property  in  one  lot  when  if  sold  in  separate  parcels  the 
judgment  would  have  been  satisfied  with  the  proceeds  of  a 
part  is  a  ground  for  setting  aside  a  sale.'^  The  ordinary  rule 
that  mortgaged  premises  must  be  sold  in  the  inverse  order  of 
their  alienation  is  not  strictly  applied  when  it  would  produce 
an  inequitable  result.''^ 

An  upset  price  may  be  fixed  below  which  the  property  can- 
not be  sold.'*  This,  in  the  case  of  a  railroad  may  be  based 
on  the  present  earning  capacity  of  the  road  and  the  value  of 
the  property  not  used  in  its  operation.'^  The  court  may  make 
a  condition  of  the  sale  that  no  bid  shall  be  considered  unless 
each  bidder  first  deposit  a  specified  sum  in  cash,  or  in  check 
certified  by  a  national  or  state  bank  or  a  trust  company '''^  or 
in  bonds  which  ai'e  to  share  in  the  distribution,''''  in  one  in- 
stance $25,000,^8  in  others  $50,000,'9  in  another  $100,000,*o  and 
that  no  bid  be  considered  unless  it  exceed  a  specified  amount.^^ 


70  Metropolitan  Trust  Co.  v.  Chi- 
cago &  E.  I.  E.  Co.,  C.  C.  A.,  253 
Fed.  868,  880. 

71  Ibid.,  C.  C.  A.,  253  Fed.  868, 
882. 

72  Arnold  v.   Ness,   212   Fed.   290. 

73Phila.  M.  &  Tr.  Co.  v.  Need- 
ham,  71  Fed.  597.  See  Riggs  v. 
Clark,  71  Fed.  560;  Central  Tr,  Co. 
V.  Sheffield  &  B.  C.  I.  &  Ry.  Co., 
60  Fed.  1010. 

74  Provident  Life  &  Trust  Co.,  v. 
Camden  &  T.  Ry.  Co.,  C.  C.  A.,  177 
Fed.  854;  New  York  Trust  Co.  v. 
Portsmouth  &  Exeter  St.  Ry.  Co., 
]92  Fed.  728;  Be  Williams,  C.  C. 
A.,  197  Fed.  1;  ex  parte  Equitable 
Trust  Co.,  C.  C.  A.,  231  Fed.  574. 

75  Equitable  Trust  Co.  v.  Western 


Pac.  Ry.  Co.,  233  Fed.  335. 

76  Farmers'  L.  &  Tr.  Co,  v.  G, 
B.  &  M.  R.  Co.,  10  Biss.  203, 

77  Rospigliosi  V,  N,  O.  M.  &  C, 
R.  Co.,  C.  C.  A,,  239  Fed,  341, 

78  Farmers'  L.  &  Tr.  Co.  v.  G, 
B.  &  M.  R.  Co.,  10  Biss,  203. 

79  Turner  v.  I.,  B.  &  W.  Ry,  Co,, 
8  Biss.  315;  Provident  Life  &  Trust' 
Co.  V.   Camden  &  T,  Ry.   Co.,   C.   C, 
A.,  177  Fed.  854. 

80  Guaranty  Trust  Co.  v.  Metro- 
politan St.  Ry.  Co.,  C.  C.  A,,  177 
Fed.  925,  929. 

81  Farmers '  L.  &  Tr.  Co.  v.  Hous- 
ton &  T.  C.  R.  Co.,  Pardee  and 
Sabin,  JJ.,  May,  1888;  Hervey  v. 
Illinois  Mid.  Ry.  Co.,  U.  S.  C.  C, 
S.  D.  Ill,,  June  10,  1886;   Roosevelt 


§394] 


JUDICIAL  SALES 


1943 


Every  subsequent  bitlder  must  do  like  tlie  lirst  until  no  person 
will  advance  on  the  last  bid,  when  the  last  bidder  is  declared 
the  purchaser ;  ^^  unless  there  has  been  a  reserved  bidding  fixed, 
when  if  the  last  bid  does  not  reach  the  reserved  one,  the  person 
conducting  the  sale  declares  that  the  lot  has  not  been  sold,  but 
has  been  bought   in  hy  the  persons  interested  in  the  estate.*^ 

The  court  may  authorize  payment  of  a  bid  in  bonds  secured 
by  the  mortgage  which  is  foreclosed.®*  This  has  been  held  not  to 
give  an  unfair  advantage  to  the  holder  of  a  majority  of  the 
bonds. 85  It  seems  that  the  court  may  direct  that  the  sale  be 
made  for  cash,  in  a  suit  under  a  railroad  mortgage  which  pro- 
vides that  the  purchase-money  may  be  paid  in  bonds. ^^ 

In  general,  the  courts  are  prone  to  construe  provisions  in  a 
trust  deed  regulating  the  time  and  manner  of  the  sale  as  ap- 
plicable only  to  a  sale  under  the  power  without  an  applica- 
tion to  the  court ;  and  unless  they  create  substantial  rights  they 
are  not  always  followed  in  a  judicial  foreclosure  sale." 

A  bid  may  be  revoked  any  time  before  the  hammer  falls.^s 
A  party  to  the  suit  who  is  not  a  trustee  has  the  right  to  buy 
at  the  sale  without  express  leave  in  the  order  or  decree,  although 
it  is  usual  to  grant  such  permission  expressly.^^  AVliere  the 
trust  deed  so  provides,  a  trustee  may  be  authorized  to  bid  upon 


V.  Columbus,  C.  &  I.  C.  Ry.  Co.,  U. 
S.  C.  C,  N.  D.  111.,  Drummond,  J., 
Nov.  15,  1882;  Jesup  v.  Wabash,  St. 
L.  &  P.  Ry.  Co.,  U.  S.  C.  C,  N.  D. 
111.,  Gresham  and  Jackson,  JJ., 
1889,  and  many  other  foreclosure 
cases. 
.    82  Daniell  's  Ch.  Pr.,  eh.  xxvi. 

83  Ibid. 

84  Ketchum  v.  Duncan,  96  U.  S. 
659,  24  L.  ed.  868.  As  to  payment 
in  stock,  see  Treadwell  v.  United  V. 
C.  Co.,  47  App.  Div.  613,  619. 

86  Rospigliosi  v.  N.  O.  M.  &  C.  R. 
Co.,   C.   C.   A.,  2.39   Fed.   341. 

86  Farmers'  L.  &  Tr.  Co.  v.  G.  B. 
&  M.  R.  Co.,  10  Biss.  203;  s.  C,  6 
Fed.   100. 

87  Low  V.  Blackford,  C.  C.  A.,  87 


Fed.   392;    Toler   v.   East  Tenn.,   V. 
&  G.  Ry.  Co.,  67  Fed.  168. 

88  Blossom  v.  Railroad  Co.,  3 
Wall.  196,  18  L.  ed.  43.  See  May- 
hew  V.  West  Va.  O.  &  O.  L.  Co.,  24 
Fed.  205,  215. 

89  Smith  v.  Black,  115  U.  S.  308, 
29  L.  ed.  398;  Pewabic  Mining  Co. 
V.  Mason,  145  U.  S.  349,  363,  36  L. 
ed.  732,  736;  Buchler  v.  Black,  C. 
C.  A.,  226  Fed.  703.  "Such  a  pro- 
vision is  inserted  merely  to  obviate 
the  technical  rule  that  parties  to 
the  action  cannot  buy,  and  is  not 
intended  to  determine  equities  be- 
tween the  parties  to  the  action,  or 
between  such  parties  and  others." 
Scholle  v.  Scholle,  101  N.  Y.  167, 
172. 


1944 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§394 


the  sale  and  to  buy  in  the  property,  for  the  benefit  of  those 
whom  he  represents.^** 

Wliere  a  trustee  has  an  interest  which  he  wishes  to  protect 
by  bidding  at  the  sale,  he  may  obtain  leave  to  bid  upon  a  spe- 
cial application  to  the  court  upon  notice  to  all  parties  inter- 
ested.^^ 

Bidding  by  the  trustees,  which  increased  the  purchase  price 
and  encouraged  competition,  was  held  not  to  invalidate  the 
sale.^^ 

A  mortgagee  may  buy  the  property .^^  Tlie  attorney  for 
the  plaintiff  may  buy  in  the  property;  but  in  such  a  case  his 
acts  are  subject  to  the  closest  scrutiny.^* 

A  secret  purchase  by  him  through  another,^^  or  his  conceal- 
ment of  the  fact  that  he  is  bidding  for  a  stranger  to  the  suit,^^ 
may  be  a  badge  of  fraud.  A  committee  to  reorganize  the  assets 
of  the  mortgagor  may  also  be  the  purchasers.^'''  A  sale  will 
not  be  set  aside  because  of  a  combination  of  persons  interested 
in  the  property  to  bid  it  in  for  the  protection  of  their  interests.^^ 
But  the  suppression  of  competition  by  the  purchase  of  bonds 
from  a  syndicate  at  more  than  their  market  value  ®^  or  other- 
wise, is  a  ground  for  refusing  to  confirm  the  sale.  The  waiver 
of  the  right  to  enter  judgment  for  a  deficiency  against  the 
debtor  whose  obligations  were  secured  by  the  mortgage  fore- 
closed was  held  to  be  no  reason  for  setting  aside  the  sale  when 
such  debtor  was  insolvent  and  it  did  not  appear  that  its  re- 


90  Etna  Coal  &  Iron  Co.  v.  Mart- 
ing  Iron  &  Steel  Co.,  C.  C.  A.,  127 
Fed.  32. 

91  Scholia  V.  Scholle,  101  N.  Y. 
167,  172;  Merkle's  Estate,  182 
Pa.  St.  378.  See  also  Cooley  v. 
Cooley's  Heirs  (Tenn.  Ch,  App.),  37 
S.  W.  1028.  For  a  case  where  the 
court  refused,  there  being  laches,  to 
set  aside  a  purchase  by  an  offi- 
cer of  the  mortgagor,  see  Buohler 
V.  Black,  C.  C.  A.,  226  Fed.  703. 

92  Etna  Coal  &  Iron  Co.  v.  Mart- 
ing  Iron  &  Steel  Co.,  C.  C.  A.,  127 
Fed.  32. 


93Buchler  v.  Black,  C.  C.  A., 
226  Fed.  703. 

94  Arnold  v.   Ness,   212   Fed.   290. 

95  Ibid. 

96  Layton  v.  Ehode  Island  Hos- 
pital Tr.  Co.,  C.  C.  A.,  205  Fed. 
276. 

97  Investment  Eegistry  Co.  v. 
Chicago  &  M.  El.  Co.,  213  Fed. 
492 ;   infra,   §  394e ;   supra,  S  310a. 

98  Ibid,  S.  c,  206  Fed.  488. 

99  Investment  Registry  v.  Chicago 
&  M.  El.  Co.,  C.  C.  A.,  212  Fed. 
594,  affirming  206  Fed.  488;  S.  C, 
213  Fed.  492. 


394a] 


AFTER  SALE  AND  BEFORE   CONFIRMATION 


1945 


ceiver  or  its  reorganization  committee  Avould  otlierwise  have 
been  a  bidder.^^'' 

The  highest  bidder  for  the  property,  who  is  willing  and  able 
to  comply  with  the  terms  of  sale,  is  entitled  to  have  the  bid 
accepted  and  reported  for  confirmation.i°i 

Where  a  trustee  in  bankruptcy  is  directed  to  advertise  for 
bids  for  certain  assets,  which  bids  are  to  be  accompanied  by  a  cer- 
tified check  for  a  certain  amount  and  to  be  made  on  a  specified 
date,  the  sale  to  be  subject  to  confirmation  by  the  court,  with 
dates  fixed  for  objections  and  a  hearing;  he  is  only  authorized 
to  receive  bids  and  not  to  sell.i<>2  The  highest  bidder,  who  has 
been  notified  to  that  efi'ect,  has  no  right  to  complain  because  the 
bids  are  reopened  and  the  property  subsequently  sold  for  a 
higher  price.i"^  It  is  the  duty  of  the  master  to  file  a  report  of 
the  sale,  but  his  failure  to  report  his  costs  and  expenses  does  not 
affect  the  validity  of  the  sale.^*^ 

§  394a.  Proceedings  after  a  sale  and  before  confirmation. 

A  judicial  sale  does  not  take  effect  until  it  has  been  confirmed 
by  the  court. ^  Before  the  confirmation  any  person  may  in- 
tervene and  obtain  an  order  establishing  a  lien  upon  the  prop- 
erty.^    It   was   formerly    the   rule    that   before   the    sale    was 


100  Simon  v.  New  Orleans  T.  & 
M.  E.  Co.,  C.  C.  A.,  242  Fed.  62. 

101  Re  Williams,  C.  C.  A.,  197 
Fed.  1. 

102  Be  Chandler,  C.  C.  A.,  194 
Fed.  944;  Re  Glas-Shipt  Dairy  Co., 
239  Fed.   122. 

1C3  Ibid. 

104  Clark  V.  Iowa  Fruit  Co.,  185 
Fed.  604. 

§  394a.  1  Mayhcw  v.  West  Va.  0. 
O.  L.  Co.,  24  Fed.  205,  215;  Pewa- 
bic  M.  Co.  V.  Mason,  145  U.  S.  349, 
364,  36  L.  ed.  732,  737;  Tennessee 
V.  Quintard,  C.  C.  A.,  80  Fed.  829, 
835.  But,  in  Illinois,  where  the 
State  practice  did  not  require  con- 
firmation and  a  deed  by  a  Federal 
master  had  been  given,  without  the 
sale  having  been  confirmed;  it  was 
held  that  this  gave  the  purchaser 
possession    of    underlying    strata    of 


coal  and  constituted  color  of  title 
to  the  same  within  the  meaning  of 
the  State  statute  of  limitations. 
Faulds  V.  Tilton,  C.  C.  A.,  192  Fed. 
297. 

2  Tennessee  v.  Quintard,  C.  C.  A., 
80  Fed.  829.  It  has  been  held  that, 
after  a  decree  of  foreclosure,  pro- 
ceedings for  an  examination  pro  iji- 
teresae  suo  may  be  instituted  by  the 
complainant  against  persons  not 
parties  to  the  action  claiming  some 
interest  in  the  property,  that  in 
such  a  proceeding  the  court  may 
determine  the  title  to  the  property 
and  award  possession  of  the  same, 
that  if  it  adjudicates  in  favor  of 
the  complainant  the  claimant  may 
be  enjoined  against  further  interfer- 
ence, and  that  even  if  no  such  in- 
junction has  been  granted  it  is  a 
contempt    for    the    claimant    to    ap- 


1946 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§  394b 


confirmed,  any  person  interested,  whether  a  party  or  a  stranger, 
might  intervene  and  have  the  sale  set  aside  upon  the  offer  of 
a  sufficient  advance  in  price  and  the  payment  of  the  purchaser's 
expenses,^  but  the  law  now  seems  to  be  otherwise.*  The  high- 
est bidder  may  be  allowed  to  increase  his  bid  in  order  to  increase 
the  amount  required  to  redeem  the  property.^ 

§  394b.  Practice  upon  the  confirmation  of  a  sale. 

The  proper  practice  in  order  to  obtain  a  confirmation  of  a 
sale  is  to  obtain  an  order  nisi,  unless  cause  to  the  contrary  be 
shown  within  a  specified  time,  that  the  sale  shall  be  confirmed, 
and,  after  service  of  the  same  upon  the  parties  to  the  cause 
or  their  solicitors,  to  apply  to  the  court  for  an  order  of  con- 
firmation absolute  upon  the  production  of  an  affidavit  of  the 
service  of  the  order  nisi  and  proof  that  the  cause  has  been  shown.i 
It  has  been  held  that  notice  of  application  for  the  decree  nisi 
must  be  given  to  the  solicitors  in  the  cause,  and  that  proof  of 
service  thereof  must  be  filed  with  the  motion.^  The  usual  time, 
specified  in  the  decree  nisi,  is  eight  days,  in  the  absence  of  a 
special  rule,^  or  under  extraordinary  circumstances. 

The  omission  of  the  order  nisi  is  an  irregularity  which  is  no 
ground  for  setting  aside  the  order  of  confirmation,  unless  it 


pear  at  the  auction  sale  and  pre- 
vent the  complainant  by  threats 
from  selling  the  property.  West- 
lake  V.  Marrin,  C.  C.  D.  Pa.  October 
Session  1908,  N.  Y.  L.  J.  July  7th 
1910.  See  Westlake  v.  Marrin,  176 
Fed.  742,  supra,  §§  258d,  ;n4. 

3  Blackburn  v.  Selma  E.  Co.,  3 
Fed.  689;  Central  Tr.  Co.  v.  Shef- 
field &  B.  C.  I.  &  Ey.  Co.,  60  Fed. 
9;  Allgair  v.  Fisher  &  Co.,  C.  C.  A., 
143  Fed.  962;  s.  c,  as  Be  William 
F.  Fisher  &  Co.,  148  Fed.  907. 

4Ballentyne  v.  Smith,  205  U.  S. 
285,  290,  27  Sup.  Ct.  527,  51  L.  ed. 
803;  Be  Burr  Mfg.  &  Supply  Co., 
C.  C.  A.,  217  Fed.  16,  21;  see  infra, 
§  394b. 

5  Park  v.  Conley,  202  Fed.  415. 

§  394b.  1  Pewabic  M.  Co.  v.  Ma- 
son, 145  U.   S.  349,  364,  36  L.  ed. 


732,  736,  737;  Daniell's  Ch.  Pr. 
(1st  Am.  ed.)  1461.  The  English 
practice,  which  has  been  followed 
in  the  District  of  Michigan  is  to 
provide  in  the  order  insi  that  cause 
be  shown  within  eight  days.  Ibid. 
In  railroad  foreclosure  and  other 
cases  where  the  persons  interested 
live  at  a  distance  from  the  place 
or  sale,  more  time  should  be  al- 
lowed. Tt  has  been  held  that  credi- 
tors in  bankruptcy  are  not  entitled 
to  notice  of  the  motion.  Be  Ne- 
vada-Utah Mines  &  Smelters  Cor- 
poration, 198  Fed.  497;  Painter  v. 
Union  Tr.  Co.,  C.  C.  A.,  246  Fed. 
240. 

2  Coltrane  v.  Baltimore  B  'g  &  L. 
Ass'n,  126  Fed.  839. 

3  Ibid. 


§  394b J  CONFIRMATION    OF   A    SALE  1947 

prejudice  the  applicant  *  and  the  confirmation  will  be  allowed 
to  stand  nevertheless,  if  there  is  no  proof  of  the  probability 
of  an  offer  of  a  hig-her  bid  than  that  which  was  accepted,  and 
the  applicant  had  an  opportunity  to  present  his  objections  to 
the  confirmation.* 

The  receiver,  or  an  intci-ested  creditor,  as  well  as  the  pur- 
chaser, may  make  the  motion.®  The  purchaser  may  be  granted 
leave  to  withdraw  his  application  for  confirmation.'^  This  was 
allowed  when  the  court  in  another  district  had  refused  to  con- 
firm a  sale  of  the  part  of  the  railroad  there  situated.^ 

The  court  may  confirm  the  sale  in  vacation  as  well  as  term 
time.®  It  is  doubtful  whether  a  court  has  power  to  confirm 
a  sale  that  it  has  not  previously  ordered.^"  The  highest  bidder 
should  usually  be  allowed  a  reasonable  time  within  which  to 
examine  the  title  of  the  property  before  the  sale  is  confirmed.^* 

Confirmation  will  be  denied  if  the  price  for  which  the  prop- 
erty was  sold  is  grossly  inadequate. ^^  This  was  done  Avhen 
the  property  was  worth  seven  times  the  amount  of  the  bid 
accepted."  If  the  inadequacy  is  great,  slight  circumstances  of 
unfairness  on  fhe  part  of  the  party  benefited  will  be  sufficient 
to  prevent  confirmation.^* 

A  sale  may  be  confirmed  before  the  whole  purchase  price  is 
paid.i*  The  court  will  not  refuse  to  confirm  a  sale  upon  the 
ground  that  the  purchaser  has  not  made  the  full  cash  payment 
required,  when  he  has  paid  a  substantial  sum,  and  there  is  no 
reason  to  suppose  that  he  will  not  pay  the  balance  upon  the 
entry  of  the  order  of  confirmation. ^^ 

4  Painter  v.  Union  Trust  Co.,  C.  H  Buell  v.  Kanawha  Lumber  Cor- 
C.   A.,  246  Fed.   240.  poration,   C.   C.  A.,   185- Fed.  109. 

5  Ibid.  IZBallontyne  v.   Smith,  205  U.  S. 

6  Coltrane  v.  Baltimore  B  'g.  &  L.  285,  290,  27  Sup.  Ct.  527,  51  L.  ed. 
Ass'n,  126  Fed.  839.  803. 

7  Investment   Eegistry   v.    Chicago  13  Ibid. 

&  M.  EI.  R.  Co.,  21:5  Fed.  492.  1* -Re   Burr    Mfg.    &    Supply    Co., 

8Tbid.  C.  C.  A.,  217  Fed.  16,  21. 

9  Central  Tr.  Co.  of  N.  Y.  v.  n  Be  National  Mining  Explora- 
Sheffield   &   B.   C.    I   &   Ry.   Co.,  60       tion  Co.,   193  Fed.  232. 

Fed.  9.  16  Fidelity  I.,   Tr.  &  S.   D.   Co.  v. 

10  Minnesota  Co.  v.  St.  Paul  Co.,      Roanoke  Iron  Co.,  84  Fed.  752. 
2    Wall.    609,    641,    17    L.    ed.    886, 

898. 


1948 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§  394b 


Objections  to  the  confirmation  may  be  made  by  a  bondholder 
who  has  refused  to  accept  a  plan  of  reorganization  in  pursu- 
ance of  which  the  sale  was  made.!"^  The  validity  of  the  decree 
for  a  sale  cannot  be  reviewed  by  objections  to  the  confirmation 
of  the  same.i*  The  buyer  at  a  judicial  sale  and  those  who 
purchase  from  him  take  the  property  subject  to  the  right  of 
the  court  to  modify  the  decree  upon  confirmation  of  the  sale.^* 
The  confirmation  may  be  upon  terms  ^o  or  subject  to  such 
claim  against  the  property  as  may  thereafter  be  asserted.^i  A 
material  change  of  the  terms  may  be  a  ground  of  relief  from 
the  purchase.^^ 

"When  confirmation  is  refused  a  new  sale  may  be  ordered  to 
be  made  by  the  master  or  other  officer  who  supervised  the 
original  sale,  with  an  unset  price  directed  at  the  amount  offered 
by  the  party  opposing  the  confirmation,  or  at  which  the  prop- 
erty was  originally  knocked  down.^  Another  course  which  has 
been  followed  and  approved  is  to  have  the  new  sale  conducted 
before  the  judge  in  court  or  chambers  and  allow  further  bids 
in  excess  of  the  highest  bid  at  the  original  sale  then  to  be  re- 
ceived.2*  It  is  within  the  discretion  of  the  court  of  original 
jurisdiction  to  determine  which  course  to  pursuers  If  the  latter 
is  adopted  it  has  been  held  that  no  new  advertisement  is  re- 
quired ;  26  and  that  all  bidders  at  the  second  sale  waive  the 
omission  to  readvertise.^'' 


17  Investment  Eegistry  v.  Chicago 
&  M.  El.  Co.,  213  Fed.  492,  503. 
But  see  Investment  Eegistry  v.  Chi- 
cago &  M.  El.  Co.,  C.  C.  A.,  212  Fed. 
594,  610. 

18  Central  Tr.  Co.  v.  Peoria,  D.  & 
E.  Ky.  Co.,  C.  C.  A.,  118  Fed.  30; 
Oodchaux  v.  Morris,  C.  C.  A.,  121 
Fed.  482. 

19  01eott  V.  Headrick,  141  U.  S. 
543,  547,  35  L.  ed.  851,  853. 

20  Farmers'  L.  &  Tr.  Co.  v.  G. 
B.  &  M.  R.  Co.,  10  Biss.  203;  s.  c, 
6  Fed.  100;  F.  L.  &  Tr.  Co.  v.  Cen- 
tral R.  Co.  of  Iowa,  17  Fed.  758. 

21  Tennessee  v.  Quintard,  80  Fed. 
829. 

22  01cott  V.  Headrick,  141  U.  S. 
543,  547,  135  L.  ed.  851,  853. 


23  Investment  Registry  v.  Chicago 
&  M.  El.  Co.,  C.  C.  A.,  212  Fed. 
594,  612;  Allgair  v.  Wm.  F.  Fisher 
&  Co.,  C.  C.  A.,  143  Fed.  962. 

24  Blanks  v.  Farmers'  Loan  &  Tr. 
Co.,  C.  C.  A.,  122  Fed.  849,  852; 
approved.  Investment  Registry  v. 
Chicago  &  M.  El.  Co.,  C.  C.  A.,  212 
Fed.  594,  612. 

26  Investment  Registry  v.  Chicago 
&  M.  El.  Co.,  C.  C.  A.,  212  Fed. 
594,  612. 

26  Blanks  v.  Farmers '  Loan  &  Tr. 
Co.,  C.  C.  A.,  122  Fed.  849,  852; 
Investment  Registry  v.  Chicago  & 
M.  El.  Co.,  C.  C.  A.,  212  Fed.  594, 
611. 

27  Blanks  v.  Farmers '  Loan  &  Tr. 
Co.,  C.  C.  A.,  122  Fed.  849,  853. 


§  394c]         EFFECT  OF  CONFIKMATIOX  OF  SALE  1949 

When  the  first  sale  is  finally  set  aside,  the  bidder  to  wliora 
the  property  has  been  first  knocked  down  is  returned  all  the 
money  which  he  has  paid,  and  he  is  usually  also  compensated 
for  any  expense  which  he  has  incurred  in  consequence  of  the 
sale.^*  AVhere  lie  has  paid  a  lienor  or  a  claimant  of  a  lien  he 
is  subrogated  to  the  rights  of  such  claimant. ^^  The  review  of 
the  refusal  by  a  master  or  referee  to  approve  a  sale,  because 
of  inadequacy  of  price,  should  be  deferred  until  the  resale, 
since  if  the  bidder  then  buys  for  less  than  his  former  bid  he  is 
not  injured.^*' 

The  court  will  refuse  to  confirm  the  sale  if  it  was  improperly 
conducted  ^^  or  if  it  appears  that  the  purchase  was  part  of  a 
scheme  to  use  the  property  in  an  unlawful  manner  or  for  ob- 
noxious purposes  against  public  policy  ^^  or  if  the  auctioneer 
made  a  mistake  concerning  the  amount  of  prior  liens.^^  A  pur- 
chase from  prospective  bidders  of  their  bonds  at  more  than  the 
market  price  and  under  their  agreement  to  aid  the  purchasers 
in  buying  the  property,  was  held  to  be  a  ground  for  refusing 
confirmation.^* 

§  394c.  Effect  of  confirmation  of  a  sale. 

The  confirmation  of  a  sale  although  it  may  not  pass  a  legal 
title  vests  in  the  purchaser  the  full  equitable  title  of  the  prop- 

28  Hudson    v.    N.    Y.    &    Albany  as  a  general  creditor  for  the  amount 

Transp.  Co.,  C.  C.  A.,  188  Fed.  630.  thereof.      See    Allgair    v.    Fisher    & 

There,   a  year   or  more   after  boats  Co.,  C.  C.  A.,  14  Fed.  962;   s.  c,  as 

had    been    sold,    the    sale    was    set  Be    William    F.    Fisher   &    Co.,    148 

aside    because    of    erroneous    state-  Fed.  907. 
ments  made  by  the  auctioneer ;   and  29  Ibid. 

it  was  held  that  the  buyer  was  en-  30  Be  Metallic  Specialty  Mfg.  Co., 

titled  to  receive   from   the   proceeds  193  Fed.  300. 

of  the  second  sale,  in  addition  to  the  31  Investment  Registry  v.  Chicago 

amount    paid    on    the   bid,    the    full  &  M.  E.  R.  Co.,  206  Fed.  488,  aff'd 

amount     expended     on     the     boats,  C.   C.   A.,  212   Fed.   594;    s.   c,   213 

which    had    increased    their     value,  Fed.  493. 

but  not  the  amount  of  a  prior  lien  32  Investment  Registry  v.  Chicago 

which  it  had  paid  in  reliance  upon  &  M.  E.  R.  Co..  206  Fed.  488,  afif 'd 

a    report    of    the   master    sustaining  C.   C.   A.,   212   Fed.   594;    s.   C,   213 

the    same,    which    was    subsequently  Fed.  493.     Contra,  Olmstead  v.  Dis- 

overruled  by  the  court,  and  that   it  tilling  &  C.  F.   Co.,  73  Fed.  44. 
was   not   chargeable   for   the   use   of  33  Hudson    v.    N.    Y.    &    Albany 

the    boats    from    which    it    realized  Transp.  Co.,  C.  C.  A.,  180  Fed.  973. 
nothing.     It  was  subrogated   to  the  34  Ibid, 

rights   of   the   claimant   of   the   lien 


1950  PROCEEDINGS  IN  A  MASTER'S  OFFICE  [§  394d 

erty.^  It  cuts  off  the  rights  of  contingent  remainder  men  if 
they  were  properly  brought  before  the  court  and  given  a  hear- 
ing.2 

When  the  marshal  sold  property  not  included  in  the  decree 
of  sale  and  the  court's  attention  was  not  called  thereto,  it  was 
held  that  a  general  order  of  confirmation  did  not  ratify  that 
of  his  sale.^ 

The  order  of  confirmation  gives  to  the  sale  the  judicial  sanc- 
tion of  the  court.  It  relates  back  to  the  time  of  the  sale  and 
cures  all  defects  and  irregularities  except  those  founded  on 
want  of  jurisdiction,  or  fraud,  accident  or  mistake  with  the 
sale  connected.*  It  cures  defects  in  the  form  of  the  original 
order  of  sale  and  indefiniteness  in  the  proof  of  the  notice  of 
sale.^  A  party  Avho  has  received  notice  of  the  affidavit  for  the 
confirmation  cannot  after  the  confirmation  has  been  made,  ob- 
ject otherwise  than  by  an  appeal,  to  a  failure  to  comply  with 
statutes,^  regulating  the  notices,  advertisements,  and  places  of 
sales,'  or  that  the  confirmation  was  made  before  the  statutory 
time  for  redemption  had  expired,^  or  as  to  the  manner  of  the 
sale,*  or  any  other  objection  which  he  then  knew.^°  After 
a  sale  has  been  confirmed  the  court  and  the  successful  bidder 
are  regarded  as  occupying  the  relation  of  vendor  and  buyer 
in  an  executed  sale,  and  it  has  been  said  that  nothing  is  suffi- 
cient to  avoid  it  that  would  not  set  aside  a  sale  of  like  character 
between  private  parties. ^^ 

Should  the  sale  eventuallj^  be  set  aside,  he  or  his  assignee,  is 
treated  as  a  mortgagee  in  possession. ^^ 

§  394d.  Setting-  aside  sale  after  confirmation. 

It  has  been  said  that  after  a  sale  has  been  confirmed,  the 

§  394c.     1  Ee  Burr  Mfg.  &  Supply  6  27   St.   at  L.   751,  quoted  supra. 

Co.,  C.  C.  A.,  217  Fed.   16,  19,  per  7  Nevada  Nickel  Syndicate  Co.  v. 

Eogers,  J.  Nickel   Co.,  C.  C.  A.,  103   Fed.  391. 

2  Glover  v.  Bradley,  C.  C.  A.,  233  8  Ibid. 
Fed.  721.  9  Ibid. 

3  Minnesota  Co.  v.  St.  Paul  Co.,  10i?e  Burr  Mfg.  &  Supply  Co., 
»    Wall.    609,    641,    17    L.    ed.    886,  C.  C.  A.,  217  Fed.  16,  20. 

898.  lli?e    Burr    Mfg.    &    Supply    Co., 

4  Morrison   v.  Burnette,   C.   C.   A.,       C    C.  A.,  217  Fed.  16,  21. 

154    Fed.    617,    624;    Ee   Burr   Mfg.  12  Huguley    Mfg.    Co.    v.    Goleton 

&  Supply  Co.,  C.  C.  A.,  217  Fed.  16.       Cotton  Mills,  94  Fed,  269. 

6Ee  Burr  Mfg.  &  Supply  Co.,  C. 
C.  A.,  217  Fed.  16,  20. 


§  394d] 


SETTING  ASIDE  SALE  AFTER  C'OXFIU.M  ATK  )N 


lil.jl 


court  and  the  successful  bidder  are  re«;arded  as  occupying  the 
relation  of  vendor  and  vendee  in  an  executed  sale,  and  that 
nothing  is  sufficient  to  avoid  it,  Avhicli  would  not  set  aside  a 
sale  of  like  character  between  private  parties.^  After  confirma- 
tion a  judicial  sale  may  be  set  aside  for  fraud.^  mistake,^  ac- 
cident,* or  other  unconscionable  circumstances.^  The  suppres- 
sion of  the  existence  of  agreements  to  satisfy  apparent  liens 
prior  to  that  foreclosed  Avas  a  ground  for  setting  the  sale  aside.^ 
It  is  no  reason  for  vacating  a  judicial  sale  that  two  of  the  de- 
fendants have  an  undivided  partial  interest  in  the  property 
and  that  it  is  impracticable  to  have  their  interest  immediately 
adjusted  7 

A  sale  will  not  be  set  aside  after  confirmation  for  inadecjuacy 
of  price  unless  the  inadecjuacy  is  so  gross  as  to  shock  the  con- 
science.^    Perhaps  a  sale  for  a  half  or  a  third  of  the  actual 


§  394(1.  1  Fc  Burr  Mfg.  &  Sup- 
ply Co.,  217  Fed.  16,  21  ;  Eogers, 
J. :  citing  Morrison  v.  Burnett,  C. 
C.  A.,  154  Fed.  617,  624. 

2  Louisville  Tr.  Co.  v.  Louisville, 
N.  A.  &  C.  Ry.  Co.,  174  U.  S.  674, 
43  L.  ed.  1130;  James  v.  Milwau- 
kee &  M.  R.  Co.,  6  Wall.  752,  18 
L.  ed.  885;   infra,  §  394e. 

3  Whitney  v.  Nat.  Ex.  Bank,  84 
Fed.  377. 

4Cowdin  v.  Wild  Goose  Min.  & 
Trading  Co.,  193  Fed.  300. 

SSfhroeder  v.  Young,  161  U.  S. 
334,  40  L.  ed.  721;  Seanion  v.  Rig- 
gins,  2  N.  J.  Eq.  214,  34  Am.  Dec. 
200;  Chamberlain  v.  Larned,  32  N. 
J.  Eq.  295;  Woodward  v.  Bullock, 
27  N.  J.  Eq.  507;  Wetzler  v.  Schau- 
niann,  24  N.  J.  Eq.  60;  Mut.  Life 
Ins.  Co.  V.  Goddard,  33  N.  J.  Eq. 
482.  See  Gardner  v.  Schermer- 
horn,  Clarke's  Ch.  (N.  T.)  101.  Ee 
Shea,  C.  C.  A.,  126  Fed.  153. 

6Bro]ihy  V.  Kelly,  C.  C.  A.,  211 
Fed.   22. 

7Bidwell  V.  Tluff,  17  Fed.  174. 

8  Fidelity  I.,  Tr.  &  S.  D.  Co.  v. 
Roanoke    Iron    Co.,    84    Fed.    752; 


Graffani  v.  Burgess,  117  U.  S.  180, 
29  L.  ed.  839;  Simmons  v.  Sharpe, 
138  Ala.  451,  35  So.  415;  Be  Ethicr, 
118  Fed.  107;  Cooper  v.  Galbraitli, 
3  Wash.  C.  C.  546;  Be  Metallic  Spe- 
cialty Mfg.  Co.,  193  Fed.  300.  Sales 
were  set  aside  where  property  worth 
$1,000,  was  sold  for  $6,  Langford 
V.  Jackson,  21  Ala.  650;  where 
property  worth  $2,500  was  sold  for 
$50,  Daly  v.  Ely,  51  N.  J.  Eq.; 
where  land  worth  from  $2  to  $5 
an  acre  was  sold  for  28  cents  per 
acre,  Hardin  v.  Smith,  49  Texas  420. 
$6,000,000  was  held  to  be  a  faii 
price  for  a  railroad  about  900  miles 
in  length  which  had  failed  to  pay 
operating  expenses  and  interest 
upon  receiver's  certificates  on  about 
$3,500,000.  Simon  v.  New  Orleans 
T.  &  M.  R.  Co.,  C.  C.  A.,  242 
Fed.  62.  $181,000  wliere  the  prop- 
erty had  boon  appraised  at 
$240,653,  but  its  operation  could  not 
be  continued  without  the  investment 
of  at  least  $100,000,  and  ninety  per 
cent,  of  the  stockholders  and  credi- 
tors were  satisfied.  Be  Peerless  Fin- 
ishing Co.,  199  Fed.  350.     $150,000, 


1952 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§39M 


value  might  be  such  gross  inadequacy.^  When  a  motion  is 
made  upon  this  ground,  the  affidavits  must  show  the  detailed 
facts  upon  which  the  opinions  as  to  value  rest.^**  Inadequacy 
of  price  may  bolster  up  slight  evidence  of  fraud  so  as  to  justify 
the  setting  aside  of  the  sale.^^ 

After  confirmation  a  sale  cannot  be  set  aside  by  anyone  who 
is  not  injuriously  affected.^^  It  cannot  be  set  aside  upon  the 
petition  of  a  person  not  a  party  to  the  suit,  who  claims  an 
interest  in  the  property,^'  unless  one  of  the  parties  to  the  rec- 
ord has  acted  in  violation  of  a  trust  of  which  the  applicant 
should  have  been  a  beneficiary.^* 

No  objections  can  then  be  raised  which  were  known  to  the 
applicant  before  the  confirmation  unless  he  then  had  no  oppor- 
tunity to  present  them.^^     Nor,  it  has  been  held,  an  objection 


where  the  mortgagor  had  spent 
$700,000  on  the  property  but  un- 
less large  sums  were  further  ex- 
pended it  would  have  no  more  value 
than  a  farm.  Beaton  Seaboard 
Portland  Cement  Co.,  C.  C.  A.,  211 
Fed.  84.  See  §  2.58b,  supra.  It  has 
been  said  that  upon  the  determina- 
tion of  this  question  the  amounts 
of  the  securities  outstanding  on  the 
property  and  of  those  the  purchas- 
ers proposed  to  have  issued  are  not 
revelant.  Eospigliosi  v.  New  Or- 
leans M.  &  C.  E.  Co.,  C.  C.  A.,  237 
Fed.  341.  Contra,  Northern  Pac. 
Ey.  Co.  V.  Boyd,  228  U.  S.  482, 
508;  s^ipra,  §  310a;  infra,  §  394e. 

9  ' '  Appellant,  in  the  motion  to  set 
aside  the  last  sale,  sets  forth  that 
in  June,  1918,  when  the  sale  was 
made,  the  United  States  govern- 
ment was  endeavoring  to  sell  bonds 
for  war  purposes,  and  that  the  con- 
dition of  the  money  market  made 
it  difficult  to  interest  people  in 
the  purchase  of  property,  and  that 
the  price  paid  was  grossly  inade- 
quate. The  support  for  the  alleged 
inadequacy   of   price   is   an   affidavit 


made  in  1916  by  an  experienced 
mining  man  who  deposed  that  he 
knew  the  property,  and  that  in  his 
opinion  in  1916  it  had  a  value  in 
excess  of  $100,000,  and  that  since 
that  time  the  value  of  mining  ma- 
chinery and  silver  mining  property 
had  greatly  increased. ' '  Norma 
Mining  Co.  v.  MacKay,  C.  C.  A., 
258  Fed.  914,  917.  There  the  mine 
was  sold  for  $27,574.28  in  1918. 

10  ^e  Burr  Mfg.  &  Supply  Co., 
C.  C.  A.,  217  Fed.  16,  21,  per  Eog- 
ers,  J.,  citing  Sinnett  v.  Cralle,  4 
W.  Va.  600. 

11  Eospigliosi  V.  N.  O.  &  C.  E.  Ey. 
Co.,  237  Fed.  341,  344;  supra,  §  260. 

12  Eayton  v.  Ehode  Island  Hos- 
pital Tr.  Co.,  C.  C.  A.,  205  Fed. 
276. 

13  Be  Burr  Mfg.  &  Supply  Co., 
C.  C.  A.,  217  Fed.  16,  19. 

14  Englehard-Hitchkock  Co.  v. 
Southern  Banking  &  Tr.  Co.,  162 
Fed.  690. 

16  Be  Burr  Mfg.  &  Supply  Co., 
C.  C.  A.,  217  Fed.  16,  20;  Hewitt 
V.  Great  Western  Beet  Sugar  Co., 
C.  C.  A.,  230  Fed.  394. 


§  394e]  SALES  UNDER  REORGANIZATIONS  Ido'S 

previously  made  by  him  upon  an  application  to  stay  or  enjoin 
the  sale  which  was  denied.^® 

So  long  as  the  court  keeps  control  of  the  case  an  applica- 
tion to  set  aside  a  judicial  sale  must  be  made  in  the  suit  in  which 
it  was  directed,  and  an  original  bill  for  that  purpose  will  be  dis- 
missed unless  the  circumstances  are  extraordinar3\^'  How  long 
after  confirmation  such  relief  can  be  granted  upon  motion  is  a 
matter  which  rests  largely  in  the  discretion  of  the  court  and  de- 
pends upon  the  circumstances  of  the  litigation.^*  Where  the 
original  suit  has  been  finally  determined  without  leave  reserved 
to  move  at  the  foot  of  the  decree,  and  the  next  term  after  the 
entry  of  the  final  decree  has  expired,  relief  can  only  be  granted 
upon  a  bill.^® 

The  court  may  impose  as  a  condition  for  setting  aside  a 
sale  that  the  moving  parties  first  tender  to  the  purchasers  re- 
payment of  the  purchase-money  2®  or  file  a  bond  with  a  suffi- 
cient surety  to  pay  the  costs  and  expenses  of  the  new  sale.^^ 
Where  it  was  conditioned  upon  the  petitioner  contracting  with 
the  trustees  to  bid  a  stated  sum  at  a  resale,  and  also  enough 
to  pay  whatever  sum  should  be  awarded  by  the  court  to  the 
purchaser  for  the  improvements  made  by  the  latter,  it  was 
held  that  the  petitioners  must  pay  such  award,  although  he 
bought  the  property  at  a  price  largely  in  excess  of  what  the 
order  required  him  to  bid.^ 

§394e.  Setting  aside  sales  because  of  fraud  in  reorganiza- 
tions. 

The  stockholders  of  a  corporation  hold  their  voting  power 
and  control  over  the  officers  subject  to  a  quasi-tvust  for  the 
benefit  of  its  creditors.  Consequently  when  they  or  their  of- 
ficers waive  a  defense  or  take  other  proceedings  which  shorten 
a  foreclosure  suit,  an  arrangement  made  orally  or  in  writing 

16  Miller  v.  Owens,  C.  C.  A.,  203  19  Sayre  v.  Elyton  Land  Co.,  73 
Fed.  648.  Ala.  8;j,  96;   infra,   §4-45. 

17  Sayre  v.  Elyton  Land  Co.,  73  20  Cunningham  v.  Macon  &  B.  R. 
Ala.  87,  96.  Co.,  156  U.  S.  400,  39  L.  ed.  471. 

18  Farmers'  L.  &  Tr.  Co.  v.  Bank-  21  Chase  v.  Driver,  C.  C.  A.,  92 
ers'   &   M.   T.   Co.,   148   N.   Y.   315;  Fed.   780. 

Brown  v.   Frost,  10   Paige   (N.  Y.)  22  i?r    William    F.    Fisher    &    Co., 

243;   Campbell  v.  Gardner,  11  N.  J.       148  Fed.  907. 
Eq.  423. 


1954 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§  394e 


before  the  sale  under  which  the  purchasers  reorganize  the  assets 
and  convey  them  to  a  new  corporation,  the  bonds  and  stock  of 
which  are  divided  among  the  bond  and  stockliolders  of  the 
mortgagor,  excluding  any  other  creditors  from  an  interest 
therein,  even  when  stockholders  have  to  pay  for  the  right  to 
participate  in  the  reorganization,  is  fraudulent,  and  for  that 
reason  the  foreclosure  will  be  set  aside. ^  A  reorganization, 
under  which  a  majority  of  the  stockholders  acquire  a  greater 
proportion  of  the  new  securities  than  the  minority  are  allowed 
upon  the  same  terms,  may  also  be  a  ground  for  setting  the  sale 
aside.2  The  rule  applies  whether  the  preference  or  unfair  ad- 
vantage is  secured  by  stockholders  through  a  private  contract, 
or  a  consent  decree,  or  a  judicial  sale,  under  the  foreclosure  of 
a  mortgage  or  other  lien,  or  otherwise.^ 

It  has  been  held  that  the  price  at  which  the  assets  of  corpo- 
ration are  sold  under  a  plan  of  reorganization  in  a  suit  in  equity 
establishes  the  value  of  the  property  as  between  a  creditor  and 
an  endorser  so  that  an  endorser  cannot  claim  that  the  new  se- 
curities w^iich  the  creditor  thus  acquires  amount  to  a  payment 
of  the  debt  in  excess  of  the  cash  dividend  directed  to  be  paid 
by  the  decree.*  A  court  of  bankruptcy  confirmed  a  sale,  al- 
though objections  were  made  because  the  purchaser  was  a  cor- 
poration organized  for  that  purpose,  in  which  one  of  the  three 


§  394e.  1  Louisville  Tr.  Co.  v. 
Louisville,  N.  A.  &  C.  Ey,  Co.,  174 
U.  S.  674,  43  L.  ed.  1130.  This 
salutary  decision  of  the  Supreme 
Court,  was  severely  criticised  by 
Judge  Wood  in  the  same  case, 
Farmers '  L.  &  Tr.  Co.  v.  Louisville, 
N.  A.  &  C.  Ry.  Co.,  103  Fed.  110, 
129,  130,  where  he  cites  a  number 
of  authorities  in  support  of  the 
validity  of  such  a  re-organization. 
Wenger  v.  Chicago  &  E.  E.  Co., 
C.  C.  A.,  114  Fed.  34;  see  Conley  v. 
International  Pump  Co.,  237  Fed. 
286;  Harvard  Law  Eeview,  xxvii. 
It  has  been  followed  and  will  be 
a  means  of  preventing  many  frauds. 
No.  Pae.  Ey.  Co.  v.  Boyd,  228 
U.  S.  482;   s.  c,  C.  C.  A.,  177  Fed. 


804.  Kansas  Southern  Ey.  Co.  v. 
Guardian  Tr.  Co.,  240  U.  S.  166; 
s  c,  as  Central  Improvement  Co.  v. 
Cambria  Steel  Co.,  C.  C.  A.,  210 
Fed.  696.  See  C,  E.  I.  &  P.  E.  Co. 
V.  Howard,  7  Wall.  392,  19  L.  ed. 
117,  §  310a,  supra. 

2  Northern  Pac.  Ey.  Co.  v.  Boyd, 
228  U.  S.  482.  J.  H.  Lane  &  Co.  v. 
Maple  Cotton  Mills,  C.  C.  A.,  226 
Fed.  692;  MacArthur  v.  Port  of 
Havana  Docks  Co.,  247  Fed.  984; 
Bogert  v.  Southern  Pac.  Co.,  226 
Fed.  500;  s.  c,  C.  C.  A.,  244  Fed. 
61;   s.  c.  250  U.  S.  483. 

3  Northern  Pacific  Ey.  Co.  t. 
Boyd,  228  U.  S.  482,  503. 

4  Ee  Howell,  C.  C.  A.,  215  Fed.  1, 
reversing   207   Fed.   973. 


§  394e] 


SALES  UNDER  REORGANIZATIONS 


193.3 


trustees  of  the  bankrupt  was  a  stockholder,  director  and  treas- 
urer, and  the  bid  was  made  by  a  firm  of  lawyers  employed  for 
that  purpose,  who  had  previously  acted  as  counsel  for  the  bank- 
rupt and  the  trustees  in  certain  local  matters ;  when  a  reorgan- 
ization committee  of  the  creditors  had  approved  the  purchase 
and  the  stockholders  of  the  bankrupt  had  full  opportunity  to 
join  in  the  reorganization. ^  A  judgment  of  foreclosure  is  not 
collusive  or  fraudulent  simply  because  the  mortgagor  who  has 
no  valid  defense  enters  an  appearance  or  files  an  answer  fail- 
ing to  defend  the  suit  before  his  time  to  appear  expires.^  Nor 
is  it  a  ground  for  setting  aside  a  foreclosure  sale  that  the  same 
persons  were  interested  as  officers  of  corporations  or  otherwise 
upon  both  sides  of  the  suit,  where  there  was  no  defense  and 
there  is  no  proof  of  frauds 

The  imposition  of  an  assessment  of  thirty  percent  of  the 
face  value  of  the  securities,  as  condition  for  sharing  in  the 
reorganization,  is  no  valid  objection  when  it  is  equally  imposed 
upon  all  of  the  same  class,  and  no  other  class  is  given  an  unfair 
advantage.8  Nor  is  the  purchase  by  the  reorganization  com- 
mittee from  the  receiver  of  a  small  prior  mortgage  with  the 
approval  of  the  court .^  Nor  an  agreement  by  the  reorganiza- 
tion committee  to  forego  a  deficiency  judgment  against  a  com- 
pany whose  indebtedness  was  secured  by  the  mortgage  fore- 
closed, it  not  appearing  that  but  for  this  agreement  such  debtor 


B  Be  National  Mining  Exploration 
Co.,  193  Fed.  232. 

Where,  on  the  insolvency  of  a 
land  company,  a  reorganization 
agreement  was  made,  in  which  all 
creditors  were  entitled  to  partici- 
pate, and  a  large  part  of  the  prop- 
erty was  bought  at  an  upset  price, 
fixed  in  the  decree  of  sale;  it  was 
held  that,  after  confirmation,  the 
creditors  who  did  not  join  in  the  re- 
organization could  not  collaterally 
attack  the  sale  because  of  inade- 
quacy of  the  purchase  price.  Mc- 
Ewen  V.  Harriman  Land  Co.,  C.  C. 
AT  138  Fed.  797;   Schuler  v.  Wood- 


ward, 169  Fed.  1012;  Be  Pittsburg 
Dick  CYcek  Mining  Co.,  197  Fed. 
106. 

6  Dickerman  v.  Northern  Tr.  Co., 
176  U.  S.  181,  44  L.  ed.  423;  Kos- 
pigliosi  V.  New  Orleans,  M.  &  C.  K. 
Co.,  C.  C.  A.,  237  Fed.  341.  See 
S  258c,  supra. 

1  Leaverworth  County  v.  Chicago, 
R.  I.  &  P.  E.  Co.,  134  U.  S.  688,  33 
L.   ed.    1064. 

8  Fearon  Bankers  Trust  Co.,  C.  C, 
A.,  238  Fed.  83. 

9  Beaton  v.  Seaboard  Portland  Ce- 
ment Co.,  C.  C.  A.,  211  Fed.  84. 


1956  PROCEEDINGS  IN  A  MASTER'S  OFFICE  [§  394e 

which  was  in  the  hands  of  a  receiver  or  its  reorganization  com- 
mittee would  liave  been  a  bidder  at  the  sale.^° 

The  refusal  of  a  bond  holder  to  join  in  a  reorganization  does 
not  prevent  his  objecting  to  the  sale.^^  The  sale  of  bonds  us- 
ually gives  to  the  purchasers  the  right  to  receive  the  securities 
apportionable  to  them  under  a  reorganization  agreement  made 
before  their  purchase.^^ 

Under  ordinary  circumstances  a  holder  of  securities  who  has 
deposited  them  in  pursuance  of  a  reorganization  agreement  can- 
not withdraw  them  after  the  sale."  But  where  the  plan  as 
formulated  did  not  show  that  stockholders  were  given  an  exces- 
sive proportion  of  the  new  securities  such  an  assent  will  not 
prevent  the  creditor  from  obtaining  a  lien  upon  the  property 
after  the  sale.^* 

In  the  absence  of  fraud  or  insolvency,  it  seems  that  the  fail- 
ure of  the  purchaser  at  a  foreclosure  sale  to  perform  a  promise 
to  allow  second-mortgage  bondholders  to  participate  in  the  re- 
organization is  not  a  reason  for  setting  aside  the  sale,  but  that 
the  only  remedy  is  a  suit  to  enforce  the  agreement.^s 

Where  fraud  is  charged,  it  must  be  specifically  set  forth." 

10  Simon  v.  New  Orleans,  T.  &  M.  failed  to  show  that  that  fact  re- 
E.  Co.,  C.  C.  A.,  242  Fed.  62.  suited  in  less  being  obtained  for  the 

11  Investment  Registry  v.  Chicago  property,  or  that  the  value  was  less 
&  M.  E.  E.  Co.,  213  Fed.  492.  than  the  amount  of  the  bid,  or  that, 

12  Georgia  S.  &  F.  Ey.  Co.  v.  after  payment  of  the  first  mortgage, 
Eintsein,  C.  C.  A.,  218  Fed.  55.  any   surplus   would   be   left   for  the 

13  U.  S.  and  Mexican  Trust  Co.  second  mortgage  bondholders,  or 
V.  U.  S.  M.  T.  Co.,  C.  C.  A.,  250  that  he  himself  had  ever  accepted 
Fed.  377.  ^^^  P^^"^  ^^  reorganization;   it  was 

14  Kansas  City  Southern  Ey.  Co.  held  that  his  objections  were  un- 
V.  Guardian  Trust  Co.,  240  U.  S.  tenable.  Eobinson  v.  Iron  E.  Co., 
166,  175;  Central  Improvement  Co.  135  U.  S.  522,  34  L.  ed.  276;  Cen- 
v.  Cambria  Steel  Co.,  C.  C.  A.,  210  tral  Tr.  Co.  v.  Peoria,  D.  &  E.  Ey. 
Fed.  696.  In  the  former  case  it  was  Co.,  C.  C.  A.,  118  Fed.  30.  For  a 
held  that  complainant  need  not  case  where  a  failure  to  assess  the 
make  a  tender  of  the  new  securities.  stock    in    order    to   prevent    a   fore- 

15  Where  a  stockholder  objected  closure  was  held  to  be  no  ground  for 
to  the  confirmation,  on  the  ground  setting  aside  a  foreclosure  sale,  see 
that  the  purchaser  bought  for  the  Symmes  v.  Union  Tr.  Co.,  60  Fed. 
holders   of   second   mortgage   bonds,  830. 

instead  of  for  a  company,  which,  un-  16  Hutchinson    v.    Philadelphia    & 

der  a  reorganization  agreement,  rec-       V.    S.    S.    Co.,    216   Fed.    795.      bee 
ognized    the    stockholders;      but    he       supra,    §  137. 


§  394f]  COLLECTION    OF    fURCHASE    MONEV  1957 

An  allegation  that  it  was  the  petitioner's  belief  that  tlie  de- 
fendant combined  to  aeqnire  the  assets  and  business  of  the  .-or- 
poratioii  at  an  inadetniatc  price  is  insufficient." 
§  394f .  Collection  of  purchase  money  at  a  judicial  sale. 
It  is  usual  to  require  the  purchaser  at  a  judicial  sale  to 
pay  the  Avhole  or  a  part  of  his  bid  when  the  property  is  knocked 
down  to  him.  Where  the  property  sold  is  of  great  value  the 
court  may  make  a  condition  of  the  sale,  that  no  bid  shall  he 
considered  unless  bidder  first  deposit  a  specified  sum  in  cash 
or  in  a  cheek  certified  by  a  national  or  a  State  bank  or  a  trust 
company,!  or  ii,  the  bonds  which  are  entitled  to  share  in  the 
proceeds  of  the  sa^e.^  Should  the  purchaser  fail  to  pay  any  part 
of  the  amount  promised,  a  resale  will  be  ordered  either  before 
or  after  the  confirmation  of  the  original  sale,  provided  that  the 
rights  of  third  persons  have  not  intervened.^  He  may  be  com- 
pelled by  attachment  issued  upon  a  rule,  or  order  to  show  cause, 
without  a  new  suit,  to  pay  the  difference  between  his  bid  and  the 
amount  realized  from  the  second  sale,  even  though  the  sale  has 
not  been  confirmed.*  The  same  remedy  may  be  applied  against 
the  buyer  at  a  private  sale  authorized  by  the  court.^ 

Such  a  resale  may  be  ordered  by  a  summary  preceding  upon 
the  return  of  an  order  to  show  cause  served  upon  the  pur- 
chaser,6  gi^d  ^jpon  the  parties  at  whose  suit  the  sale  was  made.'' 
A  par'tv  bidding  at  a  foreclosure  sale  makes  himself  thereby 
a  party  to  the  suit,  and  subject  to  the  jurisdiction  of  the  court 
for  ali  orders  necessary  to  compel  the  perfecting  of  his  pur- 
chase ;  8  and  it  has  been  held,  that  he  may  be  punished  for  con- 
tempt if  he  refuses  to  complete  the  purchase.^ 

17  Hutchinson    v.    Philadelphia    &  6  Ee  J.  Jungniarin,  C.  C  A.,  186 

V    S.  S.  Co.,  216  Fed.  795.  Fed.  302. 

§394f      1  Farmers'    Loan    &    Tr.  6  Stuart    v.    Gay,    127    U.    S.   518, 

Co.  V.  G.  B.  &  M.  R.  Co.,  10  Biss.       32     L.    ed.     191.      See    Jeffrey    v. 
203;   supra,  §394.  Brown,  29  Fed.  476. 

2  Rospigliosi  V.  N.  0.  M.  &  C.  R.  ?  TerluU  v.  Lee,  40  Fed.  40. 

Co     C    C    A.,  239  Fed.  341;   supra,  8  Knecland  v.   Am.  L.  &  Tr.   Co., 

§394  ■  136  U.  S.  89,  95,  34  L.  ed.  379,  382; 

's  Stuart   V.    Gay,    127   U.    S.    olS,       Stuart  v.  Gay,  127  U.  S.  518,  32  L. 
32  L.  ed.  191.  fd.  191. 

4  Stuart  v.  Gay,  127  U.  S.  518,  32  9  Camden    v.    Mayhew,    129    U.   b. 

L.  ed.  191;  Camden  v.  Mayhew,  129       73,  32  L.  ed.  608.     See  §  428,  vnfra. 
U.  S.  73,  32  L.  ed.  608;  Central  Tr. 
Co.    V.    Cincinnati    .1.   &   M.    R.    Co., 
58  Fed.  500. 

Fed.  Prac.  Vol.  11—53 


1958 


PROCEEDINGS  IN  A  MASTER'S  OFFICE 


[i 


394g 


Where  the  sale  is  not  set  aside,  the  mortgagor  is  not  entitled 
to  have  a  profit  subsequently  made  by  the  mortgagee  credited 
on  the  judgment  for  the  deficiency. i**  A  purchaser  who  has 
delayed  payment  of  his  bid  for  some  time  after  the  confirma- 
tion of  the  sale  will  not  be  allowed  the  earnings  of  the  prop- 
erty in  the  intervening  time.^^ 

In  the  absence  of  a  provision  in  the  decree  to  the  contrary, 
the  purchaser  of  railroad  property  at  foreclosure  sale  takes 
subject  to  any  existing  defects  in  its  title,  and  he  cannot  insist 
that  claims  for  unpaid  rights  of  way  shall  be  paid  from  the 
proceeds  of  the  sale.^^ 

Where,  at  the  sale,  announcement  is  made  of  a  lien  claimed 
upon  the  property,  the  buyer  is  charged  with  notice  of  the 
same  and  takes  subject  thereto  if  it  is  otherwise  valid. ^^  A 
defect  in  the  title  of  the  property,  which  has  not  been  referred 
to  in  the  advertisement  or  terms  of  sale,  or  a  misrepresenta- 
tion concerning  the  amount  of  claims  for  prior  liens  made  by 
the  auctioneer,  even  if  by  inadvertence,  is  a  sufficient  reason 
for  not  enforcing  the  bid.^*  Where  the  buyer  at  a  receiver's 
sale  did  not  rely  upon  the  inventory  and  appraisement,  but 
before  the  sale  examined  the  property ;  the  rule  of  caveat  emptor 
was  applied  and  he  was  not  allowed  to  an  abatement  of 
the  price  because  of  the  inability  of  the  receiver  to  deliver  part 
of  the  property  described  in  the  inventory.^^ 

It  has  been  held  that,  even  after  confirmation,  a  bidder  is 
not  obliged  to  pay  the  promised  amount  when  the  sale  was  not 
made  in  compliance  with  the  statute  previously  quoted.^^ 

§  394g.  Claims  and  liens  against  purchaser  and  property  sold 
at  a  judicial  sale. 

The  buyer  takes  the  property  subject  to  all  liens  for  taxes  ^ 


lORamsden  v.  Keene  Five  Cents 
Sav.  Bank,  C.  C.  A.,  198  Fed.  807. 

11  Boyle  V.  Farmers'  L.  &  Tr.  Co., 
C.  C.  A.,  80  Fed.  930;  U.  S.  &  Mex. 
T.  Co.  V.  Kansas  City,  M.  &  0.  Ey. 
Co.,  240  Fed.  521. 

12  First  Nat.  Bank  v.  Ewing,  103 
Fed.  168.     See  infra,  §  404. 

13  The  Dana,  190  Fed.  650;  Buell 
V.  Kanawha  Lumber  Corporation, 
C.  C.  A.,  185  Fed.  109. 


14  Hudson  V.  N.  Y.  &  Albany 
Transp.  Co.,  C.  C.  A.,  180  Fed.  973. 
See  note  87,  supra. 

15  Horner  v.  Continental  &  Com- 
mercial Tr.  &  Sav.  Bank,  C.  C.  A., 
198  Fed.  832. 

16  Cumberland  Lumber  Co.  v.  Tu- 
nis Lumber  Co.,  C.  C.  A.,  171  Fed. 
352;  supra,  §  394. 

§  394g.     1  Pennsylvania    Steel    Co. 


§  394g]  JUDICIAL  SALES   SUBJECT  TO   LIENS  1959 

unless  the  decree  for  the  sale  otherwise  provides.^  Where  a 
purchaser  agreed  to  provide  for  the  release  of  the  trust  estate 
from  the  payment  of  "rent"  after  a  sale,  it  was  held  that  he 
was  not  entitled  to  a  rebate  because  he  was  obliged  to  pay  taxes 
previously  accrued  and  water  rents  subsequently  accruing.' 
Where  the  decree  directed  that  the  sale  be  made  subject  to 
the  lien  of  taxes  but  also  directed  the  payment  of  the  re- 
ceivers' obligations  out  of  the  proceeds,  specifying  among  them 
an  assigned  tax  lien ;  it  was  held  that  the  property  was  bought 
free  of  any  lien  for  taxes  which  accrued  during  the  receiver- 
ship.* 

It  has  been  held  that  a  decree  directing  the  sale  of  railroad 
property  upon  foreclosure,  "subject  only  to  the  liens,  in  respect 
to  the  portions  of  property  enumerated,  to  the  burden  of  which 
such  sales  were  specified  herein  directed  to  be  made,"  by  im- 
plication releases  the  purchaser  from  liability  to  pay  taxes  Avhich 
accrued  before  or  during  the  receivership;  and  that  he  can 
insist  upon  payment  of  such  taxes  from  the  earnings  of  the 
receivership  or  out  of  the  purchase  money .'^  The  purchaser 
takes  the  property  subject  to  the  obligation  whether  contractual 
or  statutory  to  maintain  the  shops  and  offices  at  a  particular 
place,  if  under  the  decision  of  the  State  courts,  such  an  obli- 
gation survives  the  foreclosure. ^  The  court  refused  to  charge 
the  purchaser  of  all  the  property  of  a  corporation  with  a  defi- 
ciency upon  the  foreclosure  of  a  mortgage  upon  the  bonds  of 
the  latter  which  were  issued  at  the  request  of  the  former,  after 
its  purchase.'' 

Where,  at  the  sale,  announcement  is  made  of  a  lien  claimed 
upon  the  property,  the  buyer  is  charged  with  notice  of  the  same 
and  takes  subject  thereto  if  it  is  otherwise  valid.* 

V.  N.  Y.  City  Ey.  Co.,  C.  C.  A.,  198  orn  Lumber  Co.,  C.  C.  A.,  248  Fed. 

Fed.  768.  46. 

2  First  Nat.  Bank  v.  Ewing,  103  6  First  Nat.  Bank  v.  Ewing,  103 
Fed.  168;  U.  S.  &  M.  T.  Co.  v.  Kan-  Fed.  168.     See  infra,  §  404. 

sas  City,  M.  &  O.  Ry.  Co.,  240  Fed.  6  Intcrnat  '1     &     G.     N.     Ry.     Co. 

505;  Ellis  V.  Raffcrty,  C.  G.  A.,  199  v.  Anderson  County,  246  U.  S.  424. 

Fed.    80.      See    Pennsylvania   Steel  7  Equitable  Tr.  Co.  v.  United  Box 

Co.  V.  N.  Y.  City  Ry.  Co.,  C.  C.  A.,  Board  &  Paper  Co.,  220  Fed.  714. 

]98  Fed.  768.  8  The  Dana,   190  Fed.   650;   Buell 

3  Ellis  V.  RafFerty,  199  Fed.  80.  v.  Kanawha  Lumber  Corp.,  C.  C.  A., 

4  Union  Trust  Co.  v.  Great  East-  185  Fed.  109. 


1960  PROCEEDINGS  IN  A  MASTER'S  OFFICE  [§  394g 

As  a  condition  of  the  confirmation  of  the  sale,  it  may  be  made 
subject  to  such  claims  against  the  property  as  may  thereafter 
be  asserted.^ 

As  a  condition  of  the  confirmation  of  the  sale,  the  purchaser 
may  be  required  to  assume  responsibility  for  obligations  of  the 
receiver  or  for  the  payment  of  claims  entitled  to  a  preference 
over  the  mortgage.^®  Such  provisions  in  a  decree  for  a  sale 
or  for  a  confirmation  of  a  sale  are  considered  to  be  equivalent 
to  the  reservation  of  a  lien  for  the  payment  of  purchase-money,^^ 
and  they  may  be  enforced  by  the  court  upon  a  summary  ap- 
plication at  any  time.^^ 

A  limitation  of  the  time  for  their  presentment  is  usually  in- 
serted in  the  decree. ^^  Such  an  order  was  construed  as  not 
applying  to  claims  which  were  in  suit  before  the  same  court 
at  the  time  it  Avas  made.^*  ITpon  confirmation,  the  time  to 
present  such  claims  may  be  indefinitely  extended ;  ^^  but,  in 
such  a  case,  the  purchaser  might  be  relieved  from  his  bid  should 
he  so  request.^® 

Where  an  appeal  has  been  taken  from  so  much  of  a  decree 
as  grants  a  preference,  the  confirmation  may  be  conditioned 
upon  the  payment  to  a  surety  upon  a  supersedeas  bond  of  the 
amount  paid  by  such  surety  to  the  preferred  creditor  upon  an 
affirmance;  or  a  lien  upon  the  property  may  be  given  to  such 
surety.  ^''^ 

Where  a  decree  foreclosing  two  mortgages  required  the  pur- 
chaser to  pay  all  claims  which  should  be  adjudged  "prior  in 
lien  to  the  mortgages  foreclosed,"  and  the  proceeds  paid  the 
first  mortgage  in  full ;  it  was  held  that  the  purchaser  must  pay 

9  Tennessee  v.  Quintard,  80  Fed.  See  Dubuque  &  S.  Co.  v.  Pierson, 
829;    Guaranty  Trust  Co.  v.  Metro-       0.  C.  A.,  70  Fed.  308. 

politan   St.  Ey.   Co.,   168  Fed.   937;  12  Ibid. 

aff 'd.  C.  C.  A.,  177  Fed.  925;  Mor-  13  U.  S.  Trust  Co.  v.  New  Mexico, 

ton    Trust    Co.   v.    Metropolitan    St.  183  U.  S.  535,  46  L.  ed.  316. 

Ey.  Co.,  170  Fed.  336;  Pennsylvania  14  Central     Indiana     Ey.     Co.     v. 

Steel  Co.  V.  New  York  City  By.  Co.,  Grantham,   C.    C.   A.,   143   Fed.   43; 

194  Fed.   546.  Southern    Ey.    Co.    v.    Townsend,   C. 

10  IT.  S.  Trust  Co.  v.  New  Mexico,  C.  A.,  161  Fed.  310. 

183    U.     S.     537,    46    L.    ed.    316;  15  Ok-ott   v.   Headrick,   141   U.    S. 

Farmers'  L.  &  Tr.  Co.  v.  Central  E.  543,  547,  35  L.  ed.  851,  853. 

of  Iowa,  17  Fed.  758.  16  Ibid. 

11  Continental  Tr.  Co.  v.  Ameri-  17  Continental  Tr.  Co.  v.  American 
can  S.  Co.,  C.  C.   A.,  80  Fed.   180.  Surety  Co.,  C.  C.  A.,  80  Fed.  180. 


§  394g]  JUDICFAIi   SALES   SUBJECT  TO    LIENS  1961 

a  claim  duly  filed,  which  was  adjudged  prior  in  lien  to  the 
second  mortgage.^^ 

When  the  purchase  was  made  under  a  reorganization  agree- 
ment which  was  unfair  or  fraudulent  as  regards  the  holders  of 
securities  who  did  not  assent  thereto,  the  purchaser  takes  the 
property  subject  to  a  lien  to  secure  their  rights."     The  pur- 
chaser is  not  relieved  by  a  provision  in  the  reorganization  agree- 
ment that  no  right  is  conferred  nor  liability  or  obligation  created 
by   the   agreement   or  plan   or  thereunder  assumed  by  or  for 
any  new  company  in  the  favor  of  any  bond  holder  or  any  other 
creditor  or  any  holder  of  any  claims  whatsoever  against  the 
insolvent  company  with  respect  to  any  property  acquired  by 
purchase  at  any  foreclosure  sale.20    Where  the  decree  provided 
that  the  purchaser  should  assume  all  incompleted  contracts  of 
the  receivers  but  should  not  be  personally  liable  for  any  unpaid 
indebtedness  of  the  receivers,  it  was  relieved  from  liability  upon 
a  contract  for  the  payment  of  royalties  to  a  patentee  upon  boxes 
placed  in  cars  by  receivers  before  the  decree  of  foreclosure  and 
sale.2i     Wliere  the  decree  provided,  that  the  purchaser  should 
take  subject  to  a  lien  to  secure  payment  of  liabilities  incurred 
by  the  receivers,  but  free  from  all  liens  and  claims  of  the  mort- 
gagor and  persons  claiming  there  under;  the  purchaser  was 
obliged  to  pay  the  shippers  all  amounts  previously  collected 
in  excess  of  the  lawful  rates  for  freight.22     An  unliquidated 
and  disputed  claim  against  the  mortgagor  for  damages  for  tak- 
ing coal  and  timber  from  the  claimant's  land  was  held  not  to 
be   an   indebtedness   within   the   meaning   of   a   reorganization 
agreement  by  which  the  bond  holders  consented  to  the  issue 
of  preferred  bonds  for  the  purpose  of  paying  the  company's 
indebtedness  not  otherwise  provided  for.^^    Where  a  decree  of 
sale  directs  that  the  purchaser  pay  certain  preferential  claims, 
he  cannot  upon  such  payment  be  subrogated  to  the  rights  of 
the  original  claimants  and  prove  the  claims  against  the  fund 

18  Central     Indiana     By.     Co.     v.  20  Ibid. 

Stranthem,  C.  C.  A.,  143  Fed.  43.  21  Pennsylvania  Steel  Co.  v.  N.  Y. 

19  Kansas  City  Southern  Ry.   Co.       City  Ry.  Co.,  204  Fed.  136. 

V.    Guardian    Trust   Co.,    240   U.    S.  22  U.    S.    &    Mexican    Tr.    Co.    v. 

166,    175    affirming;     Central    Trust  Kansas  City,  240  Fed.  504. 

Company    v.   Cambria   Steel   Co.,   C.  23  Henrirhs   v.    Mississippi   Valley 

C.    A.,    201    Fed.    811.      See    supra,  Trust  Co.,  C.  C.  A.,  223  Fed.  995. 
§§  310a,  394e. 


1962 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§  394h 


in  the  hands  of  the  receiver  for  distribution.^*  It  has  been 
said  that  the  assignee  of  a  purchaser  cannot  set  up  against  such 
claims  a  title  acquired  at  a  subsequent  sale  by  another  court.''* 

Such  provision  was  held  to  be  no  bar  to  the  issue  of  an  execu- 
tion against  the  property  by  a  judgment  creditor  with  a  prior 
lien,  who  had  failed  to  file  his  claim  in  accordance  with  the 
decree.^® 

When  such  claims  are  dependent  upon  the  liability  of  the 
receiver  at  the  common  law,  they  may  be  enforced  by  an  action 
at  law,^''^  but  they  are  usually  enforced  by  application  to  the 
court  which  made  the  sale.^* 

When  the  rights  of  the  claimants  are  not  adjudicated  in  the 
decree  of  sale,  which  directs  that  the  purchaser  pay  all  receiver 's 
debts  or  claims  adjudged  or  to  be  adjudged  as  prior  in  lien  or 
equity  to  the  mortgage,  he  can  contest  the  rights  of  such  claim- 
ants, provided  that  they  have  not  been  previously  adjudicated ; 
and  he  can  appeal  from  the  order  directing  him  to  pay  such  a 
claim.''® 

In  the  case  of  a  fraudulent  reorganization  where  the  sale  is 
not  set  aside,  the  party  injured  may  sue  the  purchaser  per- 
sonally^® or  he  may  enforce  a  lien  against  the  property  for 
the  amount  due  him  under  the  circumstances.^^ 

The  prosecution  in  another  court  of  a  claim  against  the  pur- 
chaser at  a  foreclosure  sale  upon  a  promise  made  or  liability 
incurred  to  pay  the  debts  of  the  mortgagor  cannot  be  enjoined 
by  the  court  which  entered  the  decree  of  foreclosure.^'' 

§  394h.  Remedies  of  the  purchaser  upon  a  judicial  sale.  The 
purchaser   at   a   judicial   sale   has   the   right   to   apply   to   the 


24  Morgan's  L.  &  T.  E.  &  S.  S. 
Co.  V.  Moran,  91  Fed.  22.  Cf. 
Southern  Ry.  Co.  v.  Bouknight,  70 
Fed.  442. 

26  Baltimore  Tr.  &  G.  Co.  v.  Hof- 
stetter,  C.  C.  A.,  85  Fed. 

26  Trust  Co.  of  America  v.  Nor- 
folk &  S.  Ry.  Co.,  183  Fed.  803. 

27  Chicago  Great  "Western  R.  Co. 
V.  Herlbert,  C.  C.  A.,  205  Fed.  248. 
Also  Hanlon  v.  Smith,  175  Fed.  192. 

28  Ibid. 

29  Southern    Ry.    Co.    v.    Carnegie 


Steel  Co.,  176  U.  S.  257,  44  L.  ed. 
458;    Lackawanna    I.    &    C    Co.    v. 
Farmers'  L.  &  Tr.   Co.,   176  U.   S. 
298,  44  L.  ed.  475;  infra,  §  404. 
80  Hanlon  v.  Smith,  175  Fed.  192. 

31  Kansas  City  So.  Ry.  Co.  v. 
Guardian  Tr.  Co.,  240  U.  S.  166, 
175;  Chicago  Great  Western  R.  Co. 
V,  Herlbert,  C.  C.  A.,  205  Fed.  248. 

32  Western  Union  Telegraph  Co. 
V.  United  States  &  M.  T.  Co.,  221 
Fed.  545. 


§  394h]  REMEDIES   OF    PURCHASER    AT   JUDICIAL    SALE 


1963 


court  for  the  enforcement  of  such  of  the  terms  of  sale  as 
are  in  his  favor,^  and  to  be  heard  on  all  questions  thereafter 
arising  affecting  his  bid,^  which  are  not  foreclosed  by  the  terms 
of  the  decree  of  sale,  or  expressly  reserved  to  him  by  such  de- 
cree.3  Thus,  when  the  rights  of  the  claimants  are  not  adjudi- 
cated in  the  decree  of  sale,  which  directs  that  the  purchaser 
pay  all  receiver's  debts  or  claims  adjudged  or  to  be  adjudged 
as  prior  in  lien  or  equity  to  the  mortgage,  he  can  contest  the 
rights  of  such  claimants,  provided  that  they  have  not  been 
previously  adjudicated;  and  he  can  appeal  from  the  order  di- 
recting him  to  pay  such  a  claim.*  A\niere  not  concluded  by  the 
terms  of  the  decree,  any  subsequent  proceedings  to  determine 
in  what  securities,  of  diverse  value  his  bid  shall  be  made  good 
are  matters  affecting  his  interests  on  which  he  has  the  right  to 
be  heard.^ 

From  the  rulings  thereupon,  and  upon  all  matters  whereby 
his  interests  are  injuriously  affected,  he  has  the  right  to  appeal 
after  the  final  decree ;  ^  and  he  is  estopped  by  them  in  collateral 
litigation.'  He  cannot  appeal  from  so  much  of  the  decree  under 
which  he  bought  as  provides  that  he  shall  pay  a  specified  claim 
to  which  a  preference  is  then  or  has  been  subsequently  awarded.' 


§  394h.  1  Be  Two  Rivers  Wood- 
enware  Co.,  C.  C.  A.,  199  Fed.  877. 
Where  a  purchaser  agreed  to  pro- 
vide for  the  release  of  the  trust  es- 
tate from  the  payment  of  ' '  rent ' ' 
aftejif  a  sale,  it  is  held  that  he  was 
not  entitled  to  a  rebate  because  he 
was  obliged  to  pay  taxes  previously 
accrued  and  water  rent  subsequently 
accruing.  Ellis  v.  Rafferty,  C.  C.  A., 
199  Fed.  80.  See  Pennsylvania 
Steel  Co.  v.  N.  Y.  City  Ry.  Co.,  C. 
C.  A.,  198  Fed,  768. 

2Kneeland  v.  Am.  L.  &  Tr.  Co., 
136  U.  S.  89,  95,  34  L.  ed.  379,  382; 
Williams  v.  Morgan,  111  U.  S.  684, 
28  L.  ed.  559;  Re  Williams,  C.  C. 
A.,  197  Fed.  1. 

3  Kneeland  v.  Am.  L.  &  Tr.  Co., 
136  U.  S.  89,  95,  34  L.  ed.  379,  382; 
Swann  v.  Wright's  Ex'rs,  110  U.  S, 
590,  28  L.  ed.  252. 


4  Southern  Ry.  Co.  v.  Carnegie 
Steel  Co.,  176  U.  S.  257,  44  L.  ed. 
458;  Lackawanna  I.  &  S.  Co.  v. 
Farmers'  L.  &  Tr.  Co.,  176  U.  S. 
298,  44  L.  ed.  475;  infra,  §404. 

6  Kneeland  v.  Ab.  L.  &  Tr.  Co., 
136  U.  S.  89,  95,  34  L.  ed.  379,  382. 

6  Kneeland  v.  Am.  L.  &  Tr.  Co., 
136  U.  S.  89,  95,  34  L.  ed.  379,  382. 
Blossom  V.  Milwaukee  &  C.  R.  Co.,  1 
Wall.  655,  17  L.  ed.  673;  Williams  v. 
Morgan,  111  U.  S.  684,  28  L.  ed. 
559. 

7  Grape  Cr.  C.  Co.  v.  Farmers' 
L.  &  Tr.  Co.,  80  Fed.  200.  See 
also  State  of  Tennessee  v.  Quintard, 
80   Fed.   829,  835. 

SSwaun  V.  Wright's  Ex'rs,  110 
U.  S.  590,  28  L.  ed.  252;  St.  Louis 
S.  W.  Ry.  Co.  V.  Stark,  55  Fed.  758. 
See  supra,  §  305. 


1964 


PROCEEDINGS  IN  A  MASTER  S  OFFICE 


[§394i 


§  394i.  Effect  upon  judicial  sale  of  reversal  of  decree. 

Where  no  supersedeas  has  been  obtained,  the  reversal  of  the 
decree  by  an  appellate  court  subsequent  to  the  confirmation 
does  not  affect  the  validity  of  the  sale.^  But,  where  the 
decree  is  reversed  upon  appeal  subsequent  to  the  sale, 
even  although  no  supersedeas  has  been  obtained,  the  court 
may  order  restitution  by  the  purchaser  or  his  assignee,^ 
who  is  treated  as  a  mortgagor  in  possession.  ^  It  has  been  held 
that  after  a  decree  has  been  reversed  by  a  court  of  review  for 
want  of  jurisdiction  and  the  Court  of  first  instance  has  been 
directed  to  remand  the  cause,  the  latter  court  cannot  confirm 
a  sale  previously  made  under  its  orders  by  a  receiver.* 

§  395.  Compensation  of  masters.  The  Equity  Rules,  pro  vide : 
"The  compensation  to  be  allowed  to  every  master  in  chancery 
for  his  services  in  any  particular  case  shall  be  fixed  by  the 
district  court,  in  its  discretion,  having  regard  to  all  the  cir- 
cumstances thereof,  and  the  compensation  shall  be  charged  upon 
and  borne  by  such  of  the  parties  in  the  cause  as  the  court  shall 
direct.  The  master  shall  not  retain  his  report  as  security  for 
his  compensation;  but,  when  the  compensation  is  allowed  by 
the  court,  he  shall  be  entitled  to  an  attachment  for  the  amount 
against  the  party  who  is  ordered  to  pay  the  same,  if,  upon 
notice  thereof,  he  does  not  pay  it  within  the  time  prescribed 
by  the  court.  "^  It  has  been  said  that  the  compensation  of 
the  master  should  be  measured  by  the  standard  of  judicial 
salaries.^  IMucli  larger  amounts  have,  however,  frequently  been 
granted.' 


§  394i.  1  Gray  v.  Brignardello,  1 
Wall.  627,  634,  17  L.  ed.  692;  the 
John  Twohy,  Jr.,  189  Fed.  965. 

2  Eobinson  v.  Alabama  &  G.  Mfg. 
Co.,  67  Fed.  189;  s.  c,  72  Fed.  708; 
s.  c,  as  Huguley  Mfg.  Co.  v.  Gale- 
ton  Cotton  Mills,  94  Fed.  269.  In 
that  case  the  court  overruled  the 
contention  that  certain  action  of 
the  counsel  for  the  mortgagor  at 
the  sale  estopped  his  client.  But 
see  Phelps  v.  Elliott,  35  Fed.  455, 
460;  Schultz  v.  Sanders,  38  N.  J. 
Eq.  154;   Watson  v.  Ulrich,  18  Neb. 


33  N.  J.  Eq.  63;  Bailey  v.  Fanning 
Orphan  School  (Ky.),  14  S.  W.  908. 
For  the  measure  of  damages  where 
the  purchaser  so  far  destroyed  the 
property  that  it  could  not  be  re- 
turned, see  Central  Tr.  Co.  v.  Hu- 
binger,  87  Fed.  3. 

3  Huguley  Mfg.  Co.  v.  Galeton 
Cotton  Mills,  94  Fed.  269. 

4Colburn  v.  Hill,  C.  C.  A.,  103 
Fed.  340.  For  sales  in  bankruptcy 
see  chapter  xxxiv,  infra. 

§  395.     1  Eq.  Eule  68. 

2  Middleton    v.    Bankers'    &   Mer- 


186;   Dickinson   v.   City  of  Trenton,       chants'   Tel.   Co.,   32   Fed.   524.     In 


§395] 


COMPENSATION  OF  MASTERS 


1965 


The  court  may  modify  an  order  fixing  the  annual  compen- 


the  District  of  Massachusetts,  $25  a 
day  is  usually  allowed  a  master  ui)Oii 
a   patent   accounting.     Houghton   v. 
Whitin    Machine    Works,    163    Fed. 
311.   See  Brown  v.  King,  C.  C.  A.,  62 
Fed.    529,    where    $12,500    for    work 
during  two  years  was  held  to  be  ex- 
cessive.    In    Finance    Committee    v. 
Warren,  C.  C.  A.,  82  Fed.  525,  it  was 
held  that  an  allowance  of  $4,000  to 
a  master  for  the  sale  of  a  railroad 
one  hundred  and  twelve  miles  long 
was  excessive,  and  that  $2,500  was 
ample     compensation.      Bj'Ierly     v. 
Sun   Co.,   235   Fed.    1021,   1022,  per 
Dickonson,    J.,     ' '  The    services   ac- 
tually   rendered    by    the    master    in 
this   case,   viewed   from   the   stand- 
point   of    their    value,    were    such 
as  would  command  the  highest  rate 
of  compensation  liad  they  been  ren- 
dered     as      professional      services. 
Such       admeasurement,       however, 
could  be  made  only  by  the  parties 
themselves.     We  have  clung  to  the 
hope  that  the  compensation   of  the 
master  in  this  case  would  be  fixed 
by     agreement.       It     is     apparent 
that    this    will    not    be    done.     The 
compensation     must     therefore     be 
fixed  by  the  court  by  virtue  of  the 
directions    of    Eule    68     (198    Fed. 
xxxviii,   115   C.   C.   A.   xxxviii).     In 
so  fixing  it,  we  are  fixing  costs  and 
must   be   governed   by   some   rule   of 
compensation  which  applies  to  other 
items  of  cost.     The  reasons  for  this 
are  obvious.     The  only  rule  of  meas- 
urement with  which  we  are  by  anal- 
ogy   supplied    is    that    of    the    time 
employed.     This  is  the  rule  applied 
by   all   rules   of   court   and   statutes 
fixing    the    compensation.       This    is 
because  of  necessity.     As  a  rule  of 
general  application,  as  all  true  rules 
are,  it  is  the  best  to  be  had,  if  not 
always    satisfactory.      The    further 


attempt  which  is  sometimes  written 
into  rules  and  statutes  to  fix  a  com- 
mon rate  of  compensation  for  serv- 
ices of  an  entirely  different  char- 
acter is  the  feature  which  often  re- 
sults in  what  is  recognized  as 
grossly  excessive  or  inadequate  com- 
pensation. Eule  68  avoids  this  by 
permitting  of  a  time  measurement 
based  upon  a  rate  of  compensation 
fixed  in  the  language  of  the  rule  in 
view  of  all  the  circumstances  of  the 
case. 

"Adopting  and  adhering  to  the 
rule  of  compensation  suggested,  we 
have,  as  accurately  as  the  record  of 
the  case  enables  us  to  do,  found  the 
time  employed  by  the  master  in  the 
performance  of  his  duties,  and,  al- 
lowing as  large  a  per  diem  rate  as 
would  be  just,  and  having  regard 
to  the  circumstance  that  a  part  of 
the  inquiries  of  the  master  involved 
him  in  expense,  the  compensation  of 
the  master  (including  this  expense) 
is  fixed  at  $6,000,  charged  upon  and 
to  be  borne  by  the  defendant. 
Viewed  from  the  standpoint  of  costs 
to  be  paid  by  the  unsuccessful  party 
and  taxed  by  what  the  record  dis- 
closes was  the  time  consumed,  this 
is  the  compensation  which  Rule  68 
contemplates.  It  is  by  no  means  in- 
tended to  measure  the  value  of  the 
work  which  the  master  put  into  this 
case.  The  duration  and  intensity  of 
effort  j)ut  into  such  work  and  the 
value  of  the  service  rendered  is  one 
thing.  It  varies  often  in  accord- 
ance with  the  experience  and  train- 
ing of  the  servitor  and  the  facility 
with  which  he  performs  his  task. 
The  taxation  of  the  compensation  as 
costs  to  be  paid  by  a  litigant  is 
another  thing.  This  must  be  based 
upon  a  rule  of  general  application. 


1966  PROCEEDINGS  IN  A  MASTER'S  OFFICE  [§  395 

sation  of  a  master,  although  the  service  has  been  performed.* 

An  agreement  between  the  parties  as  to  the  compensation 
of  master,  when  made  before  ^  or  after  ^  his  appointment,  was 
said  to  be  against  public  policy  and  not  enforced.  In  any 
event  such  a  stipulation  should  be  in  writing,  submitted  for 
approval  or  disapproval  to  the  judge  before  any  of  the  services 
are  rendered."' 

When  the  reference  is  lengthy,  the  parties  may  be  required 
to  advance  the  master's  fees  pending  the  hearing  and  to  leave 
the  matter  of  adjustment  between  them  for  future  determina- 
tion.' 

The  fees  cannot  be  apportioned  until  after  the  hearing  upon 
the  report,®  and  ordinarily  the  amount  thereof  can  better  be 
fixed  at  that  time."  It  seems,  that  payment  pending  a  suit 
can  only  be  compelled  on  the  applicant  of  the  master  or  his 
representative,  not  at  the  request  of  a  party." 

The  court  may  disallow  or  reduce  the  fee  of  the  master  for 
misconduct  such  as  absence  when  testimony  is  taken.^^ 

The  order  adjusting  a  master's  compensation  should  name 
the  party  who  is  required  to  pay  it,  and  a  time  within  which 
payment  is  to  be  made.  The  master's  compensation  upon  an 
accounting  is  usually  imposed,  in  the  first  instance,  upon  the 
accounting  party."  When  the  fees  are  paid  before  the  taxation 
of  costs,  each  party  should  pay  for  the  expense,  including 
the  stenographer's  fees,  of  taking  his  own  examinations,  both 
direct  and  cross,  and  for  adjournments  taken  at  his  request, 
when  a  charge  is  properly  made  for  the  same.  Where  a  ses- 
sion is  partly  taken  up  with  direct  and  partly  with  cross-ex- 
amination, or  partly  by  argument,  the  expense  must  be  equally 
divided.     Charges  for  time  occupied  in  the  consideration  and 

The   one  indicated  is  the   only   one  » In  re  Growe  Const.  Co.,  253  Fed. 

with  which  we  have  been  provided. ' '  981. 

3  See    Erie    R.    Co.   v.    Heath,    10  9  Harrington  v.  Atlantic  &  P.  Tel. 
Blatchf.  214,  Fed.  Cas.  No.  4,516.  Co.,  170  Fed.   1022. 

4  Pleasants   v.    Southern   Ry.    Co.,  10  Ibid. 
C.  C.  A.,  93  Fed.  93.  H  Ibid. 

6  Finance    Committee    v.    Warren,  12  Mallory    Mfg.    Co.    v.    Fox,    20 

C.  C.  A.,  82  Fed.  525.  Fed.  409. 

6  Ee  Berkeley,  C.  C.  A.,  203  Fed.  7.  13  Be  Nubin  &  Lipman,  215  Fed. 

TByerly    v.    Sun    Co.,    235    Fed.  669. 
1021. 


§  395]  COMPENSATION  OP  MASTERS  1967 

decision  of  questions  involved  and  in  the  preparation  of  the 
report  must  be  equally  divided.^*  The  compensation  of  a  master 
appointed  to  determine  claims  against  property  in  the  custody 
of  the  courts  is  usually  paid  from  the  proceeds  of  such  prop- 
erty, and  he  usually  has  a  preference  above  all  liens  upon  the 
same.^^  In  an  extraordinary  ease,  the  Circuit  Court  of  Ap- 
peals may  review  the  order  fixing  a  master's  compensation.^® 

HUrner  v.  Kayton,  17  Fed.  539,  ville  T.  &  K.  W.  R.  Co.,  93  Fed.  60. 
s.  c,  17  Fed.  845;  Brickill  V.  Mayor,  16  Brown   v.    King,    C.    C.    A.,    62 

etc.,  of  N.  Y.,  55  Fed.  565;  Fenno  V.  Fed.     529;     Finance    Committee    v. 

Primrose,  C.  C.  A.,  119  Fed.  801.  Warren,  C.  C.  A.,  82  Fed.  525. 

16  Pennsylvania    Co.    v.    Jackson- 


CHAPTER  XXVI. 

DECREES. 

§  396.  Definition  and  classification  of  decrees.  A  decree  is 
a  sentence  or  order  of  a  court  of  equity  pronounced  after  a 
hearing  of  the  points  of  issue,  and  corresponds  to  a  judgment 
of  a  court  of  law.  A  decree  should  be  distinguished  from  a 
decretal  order.  A  decretal  order  is  an  order  in  the  nature  of 
a  decree,  made  upon  motion  or  petition,  either  before  or  after 
the  hearing,  or  in  an  independent  proceeding.^  According  to 
the  different  standpoint  from  which  they  may  be  regarded,  de- 
crees are  classified,  as  final  or  interlocutory;  as  in  personam 
or  in  rem;  as  absolute,  conditional,  decrees  nisi,  or  decrees  in 
the  nature  of  decrees  nisi.  A  decree  made  pro  forma  without 
an  examination  into  the  merits  is  not  favored  by  the  Supreme 
Court.^ 

§397.  Final  and  interlocutory  decrees.  Decrees  are  either 
final  or  interlocutory.  These  terms  are  used  with  different 
meanings  in  the  English  practice  and  in  the  courts  of  the  United 
States. 

A  final  decree  in  the  English  Chancery  was  a  complete  de- 
termination of  every  question  arising  in  a  cause.^  An  inter- 
locutory decree  was  one  which  reserved  the  further  hearing.^  In 
strictness,  moreover,  every  decree  was  said  to  be  interlocutory 
until  it  was  signed  and  enrolled.^  In  England,  an  appeal  lay 
from  an  interlocutory  as  well  as  from  a  final  decree ;  *  but,  under 

§396.     1  Barb.  Ch.  Pr.  337.  2Seton's    Decrees     (4th    ed.)     2; 

2  William   Cramp   &  Sons  Ship   &       Richmond  v.   Atwood,   C.   C.   A.,   17 
Engine  B.  Co.  v.  International  Cur-       L.  R.  A.  615,  52  Fed.  10,  21. 
tis  Co.  Marine  Turbine  Co.,  228  U.  3  Forum   Eomanum,    183;    Seton'g 

S.  645,  649,  33  Sup.  Ct.  722,  57  L.       Decrees   (4th  ed.),  2. 
ed.  1003.     Firestone  Tire  &  Rubber  4  Forgay  v.   Conrad,   6  How.   201, 

Co.  V.  Seiberling,  C.  C.  A.,  245  Fed.       205,  12  L.  ed.  404,  406. 
937. 

§397.       ISeton's     Decrees      (4th 
ed.),  2. 

1968 


397 


FIX\I>    AXD    INTERLOCUTORY    DECREES 


1969 


the  Judiciary  Acts,  before  tliat  of  Marcli  3,  1891,  only  final 
decrees  of  a  Federal  court  could  be  brought  to  a  court  of  appeal 
for  revision. 5 

On  account  of  the  inconvenience  Avhich  would  have  followed, 
had  the  old  definition  been  applied  to  the  term  in  this  statute, 
the  Federal  courts  have  refused  to  follow  the  English  Chancery 
in  this  respect.  As  far  as  appeals  are  concerned,  a  decree  is 
considered  final  which  decides  the  right  to  property,  and  orders 
that  it  be  sold  or  delivered  to  a  party ;  or  creates  a  lien  upon 
property  by  the  issue  of  receiver's  certificates  or  otherwise; 
or  directs  a  specific  sum  of  money  to  be  paid  to  a  party  either 
by  another  person  or  out  of  a  fund  in  court,  provided  that  the 
successful  party  is  entitled  to  compel  its  immediate  execution,^ 
even  though  the  consideration  of  other  matters  arising  upon 
the  pleadings  is  reserved  "for  further  consideration"  in  it.'''  A 
decree  is  final  which  settles  all  the  rights  of  the  parties  involved 
in  the  pleadiiigs,  though  it  gives  leave  to  either  one  of  them  to 
apply  at  the  foot  of  the  decree  "in  relaticm  to  any  matter  not 
finally  determined  by  it."*  An  interlocutory,  is  merged  in  the 
final  decree.*  A  decree  dismissing  a  bill  Avith  costs  to  be  sub- 
sequently taxed  was  held  to  be  a  final  decree,  although  a  judg- 


BU.  S.  K.  S.,  §§  631,  692. 

6  Taney,  C.  J.,  in  Forgay  v.  Con- 
rad, 6  How.  201,  204,  12  L.  ed.  404, 
405;  Michoud  v.  Girod,  4  How.  50.3, 
11  L.  ed.  1076;  Eay  v.  Law,  3 
Craneh,  179,  2  L.  ed.  404;  Whiting 
V.  Bank  U.  S.,  13  Pet.  6,  10  L.  ed. 
33 ;  Wabash  &  E.  C.  Co.  v.  Beers,  1 
Black,  54,  17  L,  ed,  41;  Bronson  v. 
Railroad  Co.,  2  Black,  524,  17  L. 
ed.  347;  Milwuakee  &  M.  R.  Co.  v. 
Soutter,  2  Wall.  440,  17  L.  ed.  860; 
Thomson  v.  Dean,  7  Wall.  342,  19 
L.  ed.  94;  Railroad  Co.  v.  Bradleys, 
7  Wall.  575,  19  L.  ed.  274;  Stovall 
V.  Banks,  10  Wall.  583,  19  L.  ed. 
1036;  French  v.  Shoemaker,  12 
Wall.  86;  20  L.  ed.  270;  Marin  v. 
Lalley,  17  Wall.  14,  21  L.  ed.  596; 
Trustees  v.  Greenough,  105  U.  S. 
527,  26  L.  ed.  1157;  Farmers'  L.  & 
Tr.   Co.,   Petitioner,   129   U.   R.   206, 


32  L.  ed.  656;  Lewisburg  Bank  v. 
Sheffey,  140  U.  S.  445,  35  L.  ed.  493. 
So  is  a  decree  directing  the  payment 
of  a  claim  out  of  the  proceeds  of  a 
future  sale.  Central  Tr.  Co.  v. 
Grant  Locomotive  Works,  135  U.  S. 
207,  34  L.  ed.  97.  See  final  chapter 
on  Writs  of  Error  and  Apjjeals. 

7  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Southern  Ex.  Co.,  108  U.  S.  24,  27 
L.  ed.  638;  Mo.,  K.  &  T.  R.  Co.  v. 
Dinsmore,  108  U.  S.  30,  27  L.  ed. 
640;  Lewisburg  Bank  v.  Sheffey, 
140  U.  S.  445,  35  L.  ed.  493. 

8  Raper  Corporation  v.  Stafford 
Co.,  C.  C.  A.,  255  Fed.  554. 

9  French  v.  Shoemaker,  12  Wall. 
86,  20  L.  ed.  270.  For  a  further 
reservation  that  was  held  not  to 
make  the  decree  interlocutory,  Bee 
Chamberlain  v.  Peoria,  D.  &  E.  Ry. 
Co.,  C.  C.  A.,  118  Fed.  32. 


1970  DECREES  [§  397 

ment  for  the  costs  was  subsequently  entered  after  their  taxa- 
tion.^** A  decree  dismissing  a  bill  as  to  all  matters  except  one  sev- 
erable from  the  rest  was  held  to  be  a  tinal  decree  as  regards  the 
matter  which  it  then  determined.^^ 

All  other  decrees  which  reserve  any  question  for  the  court's 
further  decision,  even  though  they  direct  money  to  be  paid  into 
court,^^  or  property  to  be  delivered  to  a  new  trustee  appointed 
by  the  court, ^^a  or  dissolve  an  injunction,!^  or  punish  a  party 
for  a  civil  contempt,^*  or  direct  a  sale,  but  do  not  sufficiently  spe- 
cifically determine  the  property  to  be  sold  to  warrant  an  immedi- 
ate sale,!^  or  direct  a  sale,  but  do  not  appoint  the  time  of  sale,!^ 
or  confirm  a  report  of  commissioners  to  locate  boundaries  and 
direct  them  to  determine  and  make  the  boundary  lines  in  ac- 
cordance with  such  report  and  then  to  make  a  further  report  of 
their  findings,^'  or  confirm  and  adopt  a  report  of  commissioners 
recommending  a  conveyance,  to  certain  parties,  of  part  of  the 
land  afi'ected  by  a  partition  suit,  and  a  sale  of  the  residue  and 
distribution  of  the  proceeds,  as  thereafter  ordered,  when  the 
sale  should  be  confirmed,^*  are,  it  seems,  interlocutory  decrees 
from  which  no  appeal  can  be  taken  under  the  Judiciary  Acts; 

10  Fowler  v.  Hamill,  139  U.  S.  549,  C.  Co.  v.  Beers,  1  Black,  54,  17  L. 
35  L.  ed.  266.  ed.  41. 

11  Hill  V.  Chicago  &  E.  R.  Co.,  140  13  Young  v.  Grundy,  6  Craneh,  51, 
U.  S,  52,  35  L.  ed.  331.  But  see  3  L.  ed.  149;  Moses  v.  Mayor,  15 
Keystone  Iron  Co.  v.  Martin,  132  Wall.  387,  21  L.  ed.  176;  Verden  v. 
U.  S.  91,  33  L.  ed.  275.  Coleman,  18  How.  86,  15  L.  ed.  272; 

12Forgay  v.  Conrad,  6  How.  201,  Knox  County  v.  Harshman,  132  U. 

12  L.  ed.  404;   Beebe  v.  Russell,  19  S.  14,  33  L.  ed.  249. 

How.  283,  15  L.  ed.  668;  Louisiana  14  Hayes  v.  Fischer,  102  U.  S.  121, 

Bank  v.  Whitney,  121  U.  S.  284,  30  26  L.  ed.  95. 

L.  ed.  961.    But  see  Wabash  &  E.  C.  15  Railroad     Co.     v.     Swasey,     23 

Co.  V.  Beers,  1  Black,  54,  17  L.  ed.  Wall.  405,  23  L.  ed.  136;  Royal  Tr. 

41.  Co.  V.  Washburn,  B.  &  I.  R.  Ry.  Co., 

12aPulliam   v.   Christian,   6    How.  113    Fed.    531.      See   McGourkey   v. 

209,  12  L.  ed.  408.     As  to  receiver-  Toledo  &  I.  C.  Ry.  Co.,  146  U.   S. 

ships  before  31   St.  at  L.  660,  see  536,  36  L.   ed.  1079. 

Tornanses  v.  Melsing,  C.  C.  A.,  106  16  Parsons  v.  Robinson,  122  U.  S. 

Fed.  775;   Be  McKenzie,  180  U.  S.  112,  30  L.  ed.  1122;   Burlington,  C. 

536,  45  L.  ed.  657;   Forgay  v.  Con-  R.  &  N.  Ry.  Co.  v.  Simmons,  123  U. 

rad,  6  How.  201,  12  L.  ed.  404;  Bee-  S.  52,  31  L.  ed.  73. 

be  V.  Russell,  19  How.  283,  15  L.  ed.  17  Iowa  v.  Illinois,  151  U.  S.  238, 

668;  Hentig  v.  Page,  102  U.  S.  219,  38  L.  ed.   145. 

26  L.  ed.  159;  but  see  Wabash  &  E.  18  Clark  v.  Roller,  199  U.  S.  541, 


§  398]  DECREES  IN  PERSONAM  1971 

althoup:h,  if  the  decision  of  the  court  in  makiiif?  them  was  errone- 
ous, the  final  decree  may  be  reversed  on  that  i^round  upon  an 
appeal  by  a  party  who  was  thereby  injured,^®  or  on  the  entry 
of  the  final  decree  the  court  which  made  them  may  correct  the 
error.^o  It  has  been  held  that  the  Federal  court  should  not  en- 
join from  acting  under  or  otherwise  interfere  Avith  the  inter- 
locutory decree  of  another  court,  and  that  the  proper  remedy  is 
an  application  to  the  court  which  made  the  decree  for  a  modifi- 
cation of  the  same,^^  at  least  when  such  decree  is  not  a  con- 
tempt of  the  Federal  court. 

§  398.  Decrees  in  personam.  Decrees  are  either  in  personam 
or  in  rem.  Decrees  in  personam  are  those  which  contain  a 
command  to  one  of  the  parties  to  a  suit  in  equity.  Decrees 
in  rem  are  such  as,  without  containing  a  commaud  to  either  of 
the  parties,  transfer  the  title  to  property.  Decrees  in  personam 
may  direct  the  performance  of,  or  the  abstention  from,  an  act 
or  acts. 

The  ordinary  decree  of  a  court  of  equity  is  a  decree  in  per- 
sonam. Such  a  decree  may  be  made  even  though  it  directs  the 
performance  of  or  abstention  from  an  act,  or  directs  a  transfer, 
or  otherwise  affects  the  title  to  property  beyond  the  jurisdiction 
of  the  court,^  or  grants  an  injunction  against  an  act  in  one 
State,  such  as  in  interference  with  a  water  flow,  which  injurious- 
ly affects  lands  in  another  State.^  Where  in  order  to  obtain  the 
relief  sought  it  would  be  necessary  for  the  court  to  take  posses- 
sion by  its  officers  of  land  beyond  its  territorial  jurisdiction,  it 
has  been  said  that  such  a  decree  should  not  be  granted.^  Thus, 
it  seems  that  the  court  would  not  decree  a  partition  of  land 
beyond  the  jurisdiction,  since  no  commission  appointed  by  it 
could  have  authority  to  act  there ;  *  and  it  cannot  adjudge  that  a 

50   L.   ed.   300.     Soc   Dangerfield   v.  §6,    supra.      See    Brady    v.    Smith 

Caldwell,  C.  C.  A.,  151  Fed.  554.  Shore  Traction  Co.,  197  Fed.  G9. 

19  Buckingham  v.  McLean,  13  3  Muller  v.  Dows,  94  U.  S.  444, 
How.   150,  14  L.  ed.  90.  449,  24  L.  ed.  207,  209;   Maegregor 

20  Iowa  V.  Illinois,  151  U.  S.  238,  v.  Maegregor,  9  Iowa  65;  Glen  v. 
38  L.  ed.   145;   infra,  §443.  Gibson,     9     Barb.     (N.     Y.)      634; 

21Furnald  v.  Glenn,  C.  C.  A.,  64  Story's  Eq.   Jur.    §1292;    2   Spence 

Fed.  49.  8,    n.     (d)  ;    Smith's    Eq.    30;    Bis- 

§  398.     1  See  §  64,  supra.  pham  's  Eq.,  §  7. 
2  Morris   v.   Bean,   146   Fed.   423;  4  2  Spenee  8,  n.   (d)  ;   Story's  Eq. 


1972 


DECREES 


[§398 


deed  of  land  in  another  State  is  void ;  ^  but  Avhere  the  defendant 
is  within  its  jurisdiction  it  may  decree  specific  performance  of 
a  contract,^  or  the  administration  of  a  trustj  or  the  cancellation 
of  a  conveyance.^  It  has  been  said  that  a  court  cannot  foreclose 
a  mortgage  or  other  lien  upon  land  outside  the  jurisdiction,^ 
except  where  it  consists  of  a  railroad  or  other  property,  which 
cannot  be  sold  in  parts  without  destroying  its  value.^''  It  seems 
that  it  cannot  direct  a  sale  in  another  State."  It  has  been 
held  in  England  that  the  court  will  make  no  decree  in  a  suit 
between  two  foreigners  not  residents  of  the  country  concerning 
a  contract  made  or  land  situated  elsewhere.^^  ^nd  a  Georgia 
case  holds  that  a  court  of  equity  will  not  compel  a  corporation 
to  perform  a  contract  to  open  ditches  and  keep  fences  in  repair 
in  a  State  where  it  has  no  corporate  existence.^^ 

It  often  happens,  however,  that  the  court  can  do  a  thing  itself 
more  easily  and  effectively  than  it  can  compel  it  to  be  done  by 
the  party  concerned,  as,  for  example,  when  it  wishes  to  sell 
property  or  to  cancel  an  instrument  in  writing,  and  it  then  Avill 
perform  that  duty  by  means  of  a  master  or  receiver,"  or  by  the 
clerk  or  marshal.^^    When  all  the  defendants  are  within  the  ju- 


Jiu-.,   §1292;    Smith's  Eq.   .39;    Bis- 
pham's   Eq.,    §47. 

5  Carpenter  v.  Strange,  141  U.  S. 
87,  35  L.  ed.  640. 

6  Western  Union  Tel.  Co.  v.  Pitts- 
burg, C,  C.  &  St.  L.  Ry.  Co.,  137 
Fed.  435;  Eoblin  v.  Long,  60  How. 
Pr.   (N.  Y.)   200. 

7  Memphis  Sav.  Bank  v.  Houchens, 
C.  C.  A.,  115  Fed.  96,  108,  affecting 
land  situated  outside  the  jurisdic- 
tion; Dunlap  V.  Byers,  110  Mich. 
109,  a  decree  directing 'the  convey- 
ance of  land  upon  the  winding  up 
of  a  corporation. 

8  Jones  v.  Byrne,  149  Fed.  457, 
469.    . 

9  Jones  v.  Byrne,  149  Fed.  457, 
469.  See  Penn.  v.  Lord  Baltimore, 
1  Ves.  Sen.  444 ;  Massie  v.  Watts,  6 
Cranch  148,  3  L.  ed.  181. 

lOMuller  v.  Dows,  94  U.  S.  444, 
24  L.  ed.  207;  McElrath  v.  Pittsburg 


&  S.  R.  Co.,  5  Pa.  St.  189;  Jones  v. 
Byrne,  149  Fed.  457,  469. 

11  Lyndc  v.  Columbus,  C.  &  I.  C. 
Ry.  Co.,  57  Fed.  993;  Farmers'  L. 
&  Tr.  Co.  V.  Postal  Tel.  Co.,  55  Conn. 
334;  s.  c,  11  Atl.  184;  Carpenter  v. 
Strange,  141  U.  S.  87,  106,  35  L.  ed. 
640,  647;  Mercantile  Tr.  Co.  v. 
Kanawha  &  0.  Ry.  Co.,  39  Fed.  337; 
He  Anderson,  94  Fed.  487;  York 
County  Sav.  Bank  v.  Abbot,  139 
Fed.  988;  supra,  §394,  infra,  §441. 

12  Matthaei  v.  Galitzin,  L.  R.  18 
Eq.  340;  Blake  v.  Blake,  18  W.  944. 

13  Port  Royal  R.  Co.  v.  Ham- 
mond, 58  Ga.  523. 

14  Deck  V.  Whitman,  96  Fed.  873 ; 
Langdell  's  Eq.  PI.,  §  44.  See  infra, 
§441. 

15  General  Chemical  Co.  v.  Black- 
more,  N.  Y.  L.  J.,  November,  1907. 
See  s.  c,  156  Fed.  968. 


^  399]  decrb:es  in  rem  1973 

ri.sdiction,  such  a  decree  is  usually  accompanied  by  a  conimand  to 
them  to  confirm  the  sale  or  other  action  of  the  court,  or  to  assist 
in  the  transfer  directed  by  the  decree.  When  a  defendant  is 
beyond  the  jurisdiction,  the  court  sometimes  acts  by  a  decree 
in  rem.  The  ecjuity  rules  i)r()vide:  "If  a  mandatory  order, 
injunction  or  decree  foi-  llic  specific  performance  of  any  act  or 
contract  be  not  complied  willi.  the  court  or  a  judge,  besides, 
or  instead  of,  proceedings  against  the  disobedient  party  for  a 
contempt  or  by  sequestration,  may  by  order  direct  that  the  act 
re(|uired  to  be  done,  so  far  as  practicable,  by  some  other  person 
appointed  by  the  court  or  judge,  at  the  cost  of  the  disobedient 
party,  and  the  act,  when  so  done,  shall  have  like  effect  as  if 
done  by  him.''  ^^  It  has  been  held  that,  in  the  absence  of  stat- 
utory authority,  a  decree  in  a  suit  in  personam  against  the  heirs 
of  a  decedent  Avithout  a  statement  of  their  names  in  the  com^ 
plaint  or  a  warning  order,  is  void.^''' 

§  399.  Decrees  in  rem.  A  decree  in  rem  in  a  court  of  equity 
is  one  that  determines  the  title  to  or  an  interest  in  real  or  per- 
sonal property  Avithin  the  territorial  jurisdiction  of  the  court, 
without  having  any  other  effect  upon  a  defendant  Avho  dwells 
beyond  that  jurisdiction  and  has  not  been  served  with  process 
within  it.  Such  an  equitable  decree  must  be  distinguished  from 
the  decrees  in  rem  of  a  court  of  admiralty,  Avhich  establishes 
a  title  conclusively  against  all  the  world:  Avhereas  it  is  only 
binding  upon  the  parties  to  the  action  in  which  it  is  rendered. 
Such  decrees  were  formerly  very  rare.^  In  the  Federal  courts 
of  equity  they  are  purely  statutory,  and  the  power  of  those 
courts  to  make  them  depends  entirely  upon  a  strict  compliance 
with  the  provisions  of  the  statute.^  Whether  or  not,  under 
this  statute  or  othei-wise,  a  decree  can  be  made  and  enforced 
which  requires  the  specific  jierformance  of  a  contract  for  the 
conveyance  of  property  within  the  court's  jurisdiction  against 
a  person  not  served  there  with  process,  has  never  been  decided.' 

16  Eq.  Eule  8.  472).     See  Grove  v.  Grove,  93  Fed. 

17  Indiana  &  Arkansas  Lumber  &       855;  mjrra,  §166. 

Mfg.  Co.  V.  Brinkley,  C.  C.  A.,  164  3  See  Ward  v.  Arrendondo,  Hopk. 

Fed.  963.  C'li.   (N.  Y.)   21.! ;   Anon.,  1  Atk.  18; 

§  ;i99.      IBut   see    Anon.,    1    Atk.  Rourke  v.  MeLauglilin,  38  Cal.  196; 

18.  Matteson   v.   St'ofield,   27  Wis.   671; 

8U.  S.  R.  S.,  §  738;  Act  of  March  Story's  Eq.  Jr.,  §  744,  n.  3. 
3,  1875,  ch.   137,   §8    (18   St.  at  L. 
Fed.  Prar.  Vol.  11—54 


1974  DECREES  [  §  400 

Where  the  State  statute  authorized  such  a  decree  it  was  followed 
by  the  Federal  court.* 

§  400.  Absolute  and  conditional  decrees.  Decrees  are  either 
absolute,  conditional,  nisi,  or  in  the  nature  of  decrees  nisi.  An 
absolute  decree  is  one  that  takes  effect  immediately  upon  its 
entry  and  is  dependent  for  its  enforcement  upon  no  condition, 
and  is  not  subject  to  be  defeated  by  the  occurrence  of  any  sub- 
sequent event.  A  conditional  decree  is  one  that  by  its  terms  is 
not  to  take  effect  unless  something  shall  be  done  by  the  party 
to  whom  relief  is  given  by  it,  or  which  provides  that  it  shall 
be  void  if  something  is  done  by  one  of  the  parties  within  a  time 
therein  specified.^  The  court  may  thus  compel  the  plaintiff 
to  pay  a  just  claim  which  in  equity  and  good  conscience  he 
ought  to  pay  although  because  of  the  statute  of  limitations,  or 
for  some  technical  reavson,  such  claim  could  not  otherwise 
be  enforced.^  Under  the  present  state  of  the  authorities,  it 
would  be  rash  to  attempt  to  lay  down  a  rule  as  to  when  a  con- 
ditional decree  will  be  granted,  and  when  the  plaintiff  will  be 
denied  relief  unless  he  has  made  a  specific  offer  or  waiver  in  his 
bill.'  The  following  are  a  few  of  the  cases  where  a  conditional 
decree  has  been  granted.  An  express  company  has  been  granted 
a  decree  compelling  a  railroad  company  to  carry  freight  for 
it,  upon  condition  that  it  should  give  the  latter  a  bond  to  pay 
such  charges  as  the  court  should  subsequently  consider  reason- 
able.* A  decree  for  the  redemption  of  a  mortgage  is  upon  con- 
dition that  the  plaintiff  pay  the  balance  reported  due  from 
him  within  six  months,  which  it  seems  must  be  lunar  or  calendar 
months,  after  the  report,  in  default  whereof  the  plaintiff's  bill 
against  the  defendant  is  from  thence  forth  to  stand  dismissed 
out  of  court  with  costs.^       Upon  default,  a  final  order,  which 

4  Single  V.  Scott  P.  Mfg.   Co.,  55  S.    122,    140,    32    L.    ed.    878,    884; 

Fed.  553.  s^iipra,   §§  153,  364. 

§  400.  1  Moore  Printing  Type-  4  Southern  Exp.  Co.  v.  St.  Louis, 
writer  Co.  v.  National  Sav.  &  Tr.  I.  M.  &  S.  E.  Co.,  10  Fed.  210;  re- 
Co.,  218  U.  S.  422,  427,  51  L.  ed.  versed  Express  Cases,  117  U.  S.  1, 
1093,  1095,  note.  29  L.  ed.  791. 

2  Central  Improvement  Co.  v.  6  Seton  on  Decrees,  140 ;  Waller 
Cambria  Steel  Co.,  C.  C.  A.,  201  Fed.  v.  Harris,  7  Paige  (N.  Y.)  167.  The 
811,  824.  holder   of   bonds   accrued  by  a  rail- 

3  See  Moore  v.  Crawford,  130  U.  way   mortgage   has   no   right   to   re- 


400J 


ABSOLUTE   AND   CONDITIONAL   DECREES 


1975 


will  be  granted  as  of  course,  is  necessary  to  dismiss  the  bill.^ 
A  decree  allowing  a  junior  incumbrancer  to  redeem  may  be 
upon  condition  that  he  pay  off  a  prior  incumbrance,  and  repay 
to  its  holder  money  paid  by  him  in  discharging  still  prior  in- 
cumbrances, and  for  taxes,  repairs,  and  insurance  upon  the 
mortgaged  premises.' 

Similarl}',  a  decree  upon  a  l)ill  by  a  purchaser  for  the  specific 
performance  of  an  agreement  for  the  sale  of  an  estate  may 
appoint  a  time  and  place  for  the  payment  of  the  purchase- 
mone}',  and  direct  that  in  default  of  payment,  with  interest  if 
any  be  due,  the  bill  be  dismissed  with  costs.^  In  a  suit  bj^  a  water 
and  electric  company  to  compel  specific  performance  by  a  city 
of  a  contract  for  light  and  water  during  an  unexpired  term  of 
several  years,  the  court  may  impose  slight  modifications  of  the 
contract  necessitated  by  changed  conditions,  such  as  a  relocation 
of  lights  and  hydrants;  but  not,  it  has  been  held,  a  reduction 
in  their  number  or  in  the  prices  to  be  paid.® 


deem  from  a  foreclosure  sale. 
Provident  Life  &  Tr.  Co.  v.  Camden 
&  T.  Ry.  Co.,  C.  C.  A.,  177  Fed.  854. 

6  Seton  on  Decrees,  178.  A  decree 
for  the  cancellation  of  a  conveyance 
made  by  an  Indian  in  violation  of 
a  statutory  prohibition,  may  be  con- 
ditioned upon  the  return  of  the  con- 
sideration. Heckman  v.  U.  S.,  224 
U.  S.  413,  56  L.  ed.  820. 

TMcCormiek  v.  Knox,  105  U.  S. 
122,  26  L.  ed.  940.  See  Farmers' 
L.  &  Tr.  Co.  V.  Denver,  L.  &  G.  R. 
Co.,  C.  C.  A.,  126  Fed.  46;  Lynch  v. 
Burt,  C.  C.  A.,  132  Fed.  417. 

8  Lowther  v.  Andover,  1  Bro.  C. 
C.  396. 

9  City  of  La  Follette  v.  La  Fol- 
lette  Water,  L.  &  Tel.  Co.,  C.  C.  A., 
252  Fed.  762,  per  Sandford,  J.,  in 
T.  c. 

"I  do  not  think  that  specific  per- 
formance of  the  city's  contract) 
should  be  denied  by  reason  of  the 
alleged  hardship  to  the  defendant 
arising  out  of  the  fact  that  the  city 
revenues    have   materially    decreased 


since  the  ordinance  was  passed, 
owing  to  loss  of  revenues  from  sa- 
loons. This  was  a  contingency 
which  sliould  have  been  contem- 
plated by  the  parties.  Nor  do  I 
think  it  would  be  just  for  the  court 
to  fix  as  an  equitable  condition  that 
the  plaintiff  should  consent  to  a  re- 
duction in  either  the  number  of  hy- 
drants and  lights  or  the  prices  to  be 
paid  therefor;  the  plaintiff's  plants 
having  been  erected  and  extended  on 
the  faith  of  the  city's  contracts 
calling  for  this  number  of  hydrants 
and  lights  at  the  stipulated  prices. 
And  as  such  prices  do  not  yield 
more  than  a  fair  return  on  its  in- 
vestment when  all  the  circumstances 
are  considered,  it  would,  in  my  opin- 
ion, be  unjust  to  require  a  modifica- 
tion of  the  contract  which  would 
seriously  impair  its  earning  capac- 
ity, as  well  as  impair  its  ability 
to  make  such  further  improvements 
as  may  be  from  time  to  time  needed 
in  the  water,  as  disclosed  by  ad- 
vancing science,  and  would  otherwise 


1976 


DECREES 


[§400 


In  a  suit  by  the  United  States  for  cancellation  of  a  patent,  such 
relief  may  be  conditional  upon  the  return  by  the  Government 
of  money  paid  for  the  patent.^* 

A  decree  dismissing  a  cross-bill  to  set  aside  a  compromise  re- 
quired the  defendant  thereto  to  comply  with  the  agreement 
within  a  specified  time  after  the  filing  by  the  cross-complainant 
of  notice  of  her  assent.*^  A  decree  for  an  accounting  should 
always  contain  a  submission  by  the  plaintiff  to  account. ^^  A 
decree  for  an  injunction  against  the  collection  of  an  illegal 
tax  may  be  conditioned  upon  the  payment  of  the  taxes,  to  which 
the  complainant  would  legally  be  subjected,  with  interest  at  six 


tend  to  impair  its  ability  to  carry 
out  in  full  its  contract  with  the  city. 
I  am  opinion,  however,  from  the 
proof  that  it  is  fair  and  just  to 
require  as  a  condition  of  granting 
the  plaintiff  the  equitable  relief  of 
specific  performance  that  it  assent 
to  the  following  conditions: 

"(a)  That  it  forthwith  install 
and  thereafter  maintain  the  horse 
drinking  fountain  provided  for  in 
the  contract;  the  installation  of 
which  does  not  appear  from  the 
proof  to  have  been  formally  waived 
for  a  valuable  consideration. 

"(b)  That  it  agree  to  open  each 
of  the  City  hydrants  for  a  reason- 
able time  at  reasonable  intervals  for 
the  purpose  of  allowing  any  sedi- 
ment to  escape  and  keeping  the 
hydrants  in  good  conditon  for  use 
in  case  of  ffire. 

"  (c)  That  the  term  'dark  hours,' 
as  used  in  the  contract  as  hours 
which  the  City  lights  are  to  be  kept 
burning  be  definitely  defined  by  the 
decree. 

"(d)  That  equitable  modifica- 
tions be  made  in  the  contract  as  to 
the  re-location  of  certain  hydrants 
and  electric  lights. 

"(e)  It  should  further,  in  my 
judgment,  be  an  equitable  provision 


of  the  decree  for  specific  perform- 
ance that  the  plaintiff  consent  that 
this  cause  shall  be  retained  on  the 
docket  to  the  end  that  if  at  any 
time  the  plaintiff  shall  fail  to  per- 
form its  part  of  the  contract  or  ad- 
vancement in  science  shall  disclose 
new  methods  of  improving  the 
water,  which  can  be  installed  at  a 
reasonable  expense  and  which  can 
reasonably  be  required  of  the  plain- 
tiff in  a  water  works  sytem  of  the 
character  in  question,  considering  all 
the  surrounding  circumstances,  or 
the  water  should  become  from  any 
cause  dangerous  to  the  health  of 
the  inhabitants,  the  defendant  shall 
have  leave  to  apply  to  the  court  in 
supplemental  proceedings  for  such 
relief  as  it  may  be  entitled  to  re- 
ceive in  the  premises  as  a  condition 
of  keeping  the  decree  for  specific 
performance  in  full  force  and  effect. 
See  as  to  such  supplemental  pro- 
ceedings, Joy  V.  St.  Louis,  138  U.  S. 
1,  47,  11  Sup.  Ct.  243,  34  L.  ed. 
843. ' ' 

10  U.   S.   V.   Debell,  C.   C,   A.,  227 
Fed.  771. 

llBunel  V.  O 'Day,  125  Fed.  303, 
316. 

12  Fowler  v.  Wyatt,  24  Beav.  232; 
Seton  on  Decrees  (4th  ed.),  775. 


§  401]  DECREES    NISI  1977 

per  cent.,  upon  the  amount  thereof.^^  It  has  been  made  a  con- 
dition precedent  to  the  entry  of  a  decree  to  enjoin  the  infringe- 
ment of  a  patent,  that  the  complainant  first  file  in  the  Patent 
Office  a  disclaimer  of  those  of  the  claims  in  the  patent  to  which 
he  is  not  entitled.^*  For  conditions  of  sale  in  suits  to  foreclose 
railway  mortgages  see  the  preceding  section  on  Judicial  Sales.^^ 

It  has  been  held  that  in  a  suit  in  equity  to  secure  a  set-off  of 
judgments  at  common  law  the  court  cannot  require  a  reduction 
of  the  complainant's  judgment  as  a  condition  to  the  relief.^^ 
A  conditional  decree  should  not  be  imposed  upon  the  dismissal 
of  a  bill  when  the  evidence  clearly  shows  that  the  complainant 
is  not  entitled  to  the  relief  sought.^"'' 

§  401.  Decrees  nisi.  A  decree  nisi  is  one  giving  a  defendant 
a  certain  specified  time  within  which  to  show  cause  against  a 
decree  or  to  perform  some  other  act  in  relation  thereto,  in  de- 
fault whereof  it  shall  be  absolute  against  him.  Such  a  decree 
is  made  against  an  infant  oi-  a  mortgagor,  or  the  latter 's  assigns. 

According  to  the  English  rule,  every  decree  against  an  infant 
defendant  which  requires  some  act  to  be  performed  by  him,i  or 
w^hich  directs  a  conveyance  or  a  foreclosure  of  his  interest  in  any 
real  estate,  must  contain  a  clause  giving  him  an  opportunity 
to  show  cause  against  it  after  he  has  come  of  age.'^  Wliere  a  sale 
of  land  is  directed  by  such  a  decree,  it  usually  contains  a  direc- 
tion that,  in  the  mean  time,  a  purchaser  under  the  sale  shall 

• 

13  Central  E.  Co.  of  New  Jersey  Davey  Tree  Expert  Co.  v.  Van  Bil- 
V.  Jersey  City,  199  Fed.  237,  246.  liard,  C.  C.  A.,  255  Fed.  781,  re- 
See  §  152,  supra.  versing  248  Fed.  718. 

14  Sessions  v.  Eomadka,  21  Fed.  §401.  1  Walsh  v.  Trevannion,  16 
124,  133;  Hake  v.  Brown,  37  Fed.  Simons,  178;  Eyre  v.  Countess  of 
783;  Electrical  Ace.  Co.  v.  Julien  Shaftsbury,  2  P.  Wms.  102;  Shef- 
El.  Co.,  38  Fed.  117;  supra,  §147.  field   v.   Duchess   of   Buckingham,   1 

16  Supra,  §394.  West,  682;   Thornton  v.  Blackborne, 

16  J.  L.  Owens  Co.  v.  Officer,  C.  2  W.  Kel.  7 ;  Seton  on  Decrees  (4th 
C.   A.,  244  Fed.  47.  ed.),  712,  713. 

17  Columbus  V.  Mercantile  Trust  2  Williamson  v.  Gordon,  19  Ves. 
&  Deposit  Co.,  218  U.  S.  645,  54  L.  114;  Mallack  v.  Gallon,  3  P.  Wms. 
ed.  1193.  The  terms  there  held  to  352;  Newbury  v.  Marten,  15  Jur. 
have  been  improperly  imposed  were  166;  Mills  v.  Dennis,  3  J.  Ch.  (N. 
a  requirement  that  a  city  purchase  Y.)  367;  Seton  on  Decrees  (4th 
part  of  the  complainant's  water-  ed.),  714.  But  see  Croxon  v.  Lever, 
works  and  the  city  had  filed  a  cross-  12  W.  R.  237. 

bill    for    defensive    relief.      Contra, 


1978 


DECREES 


[§401 


hold  and  enjoy  the  estate  against  the  infant  until  he  attains 
full  age ;  ^  and  the  court  so  far  protects  a  purchaser  that  it  will 
not  permit  his  title  to  be  affected  by  a  mere  irregularity  in  the 
decree.*  Where  a  decree  directed  a  conveyance  by  both  adult 
and  infant  parties,  as  in  a  partition  suit,  by  the  English  practice 
it  would  not  direct  a  conveyance  by  any  till  the  infant  was  of 
age  and  had  had  an  opportunity  to  show  cause  against  the 
decree,  and,  in  the  mean  time,  the  decree  would  only  extend 
so  far  as  to  give  possession  in  accordance  with  the  court's  de- 
cision, and  to  order  enjoyment  accordingly  until  effectual  con- 
veyances could  be  made.^  It  seems  that  in  no  other  instances 
will  a  decree  Tim  be  entered  against  an  infant  defendant,  al- 
though there  is  some  doubt  upon  this  point.^  In  a  few  excep- 
tional cases,  when  an  infant  plaintiff  in  his  bill  exercised  an 
election  between  two  conflicting  claims,  the  court  has  allowed 
him  a  day  after  he  became  of  age  in  which  to  show  cause  against 
itJ  The  usual  form  of  the  nisi  clause  in  such  a  decree  is  as  fol- 
lows: "And  this  decree  is  to  be  binding  on  the  defendant,  the 
infant,  unless  on  being  served,  after  he  shall  have  attained  the 
age  of  twenty-one  years,  with  subpoena  to  show  cause  against 
this  decree,  he  shall  within  six  months  from  the  service  of  such 
subpoena  show  unto  this  court  good  cause  to  the  contrary.  "^ 
Such  a  clause  should  be  inserted  in  the  order  for  making  a  decree 
of  foreclosure  absolute,  as  wqII  as  in  the  decree.^  The  omission 
of  a  similar  clause  in  such  a  decree  is  error.i"  The  six  months 
after  the  service  of  process  within  which  cause  must  be  shown 
must  be,  it  seems,  lunar  not  calendar  months."    At  the  expira- 


3  Powell  V.  Powell,  Mad.  &  Geld. 
53. 

4  Bennett  v.  Hamill,  2  Sch.  &  Lef. 
566. 

6  Agar  v.  Fairfax,  17  Ves.  5.S3, 
554;  Atty.  Gen.  v.  Hamilton,  1 
Madd.  214. 

eSeton  on  Decrees  (4th  ed.),  714; 
Eyre  v.  Countess  of  Shaftsbury,  2 
P.  Wms.  102;  Sheffield  v.  Duchess  of 
Buckingham,  1  West,  682.  See 
Kingsbury  v.  Buckner,  134  U.  S. 
650,  33  L.  ed.  1047, 


7  Gregory  v.  Molesworth,  3  Atk. 
626;  Sir  John  Napier  v.  Lady  Ef- 
fingham, 2  P.  Wms.  401;  Lord 
Brook  V.  Lord  Hertford,  2  P.  Wms. 
518;  Taylor  v.  Phillips,  2  Ves.  Sen. 
23. 

SSeton  on  Decrees  (4th  ed.),  711. 

9  Williamson  v.  Gordon,  19  Ves. 
114. 

10  Coffin  V.  Heatte,  6  Met.  (Mass.) 
76. 

11  Seton  on  Decrees  (4th  ed.),  711. 


§401] 


DECREES    NISI 


1979 


tion  of  them  and  upon  proof  of  the  requisite  facts,  an  order 
making  the  original  decree  absolute  should  be  entered. ^^ 

A  decree  for  a  foreclosure  should  also  be  nisi,  providing  for 
either  a  strict  foreclosure  or  a  foreclosure  sale,  unless  the  whole 
amount  due  shall  be  paid  within  a  reasonable  time,  usually  six 
lunar  months,  from  the  time  of  the  conclusion  of  the  account- 
ing and  the  certificate  of  what  is  due  under  the  mortgage."  An 
omission  of  such  clause  is  error.^*  At  the  expiration  of  the 
alloted  time,  if  the  debt  be  still  unpaid,  the  plaintiff  should 
obtain  an  order  confirming  the  foreclosure  or  directing  the  sale.^^ 
The  time  for  payment  may  always,  even  after  a  peremptory 
order  for  a  sale,^^  be  enlarged  upon  terms,  which  usually  are  that 
the  defendant  give  good  security  to  pay  the  amount  due,  with 
interest  and  costs  in  full.^''^  A  decree  of  foreclosure  absolute 
may  also  be  reopened ;  "  but  it  has  bepn  said  that  this  can  only 
be  done  when  it  has  been  obtained  by  fraud  or  under  circum- 
stances of  oppression.^9  The  Supreme  Court  has  held  that 
"what  is  indispensable  to  such  a  decree  is,  that  there  should 
be  declared  the  fact,  nature,  and  extent  of  the  default  which 
constituted  the  breach  of  the  condition  of  the  mortgage,  and 
which  justified  the  complainant  in  filing  his  bill  to  foreclose  it, 
and  the  amount  due  on  account  thereof,  which,  with  any  further 


12  Ibid. 

13  Clark  v.  Eeyliurn,  8  Wall.  318, 
19  L.  ed.  354;  Howell  v.  Western  K. 
Co.,  94  U.  S.  463,  24  L.  ed.  254; 
Chicago  &  V.  E.  Co.  v.  Fosdick,  106 
U.  S.  47,  27  L.  ed.  47;  Ferine  v. 
Dunn,  4  J.  Ch.  (N.  Y.)  140.  Twen- 
ty days  has  been  held  insufficient. 
Chicago  &  V.  R.  Co.  v.  Fosdick,  106 
U.  S.  47,  27  L.  ed.  47.  In  one  ease 
it  was  held  that  eighteen  months 
should  be  allowed.  American  L.  & 
Tr.  Co.  V.  Union  Depot  Co.,  80  Fed. 
36.  In  another,  four  months  was 
held  to  be  sufficient.  Columbia  F.  & 
Tr.  Co.  V.  Kentucky  Union  Ey.  Co., 
C.  C.  A.,  60  Fed.  794. 

14  Clark  V.  Ecyburn,  8  Wall.  318, 
19  L.  ed.  354;  Savannah  &  N.  W. 
Ey.  V.  Union  Trust  Co.,  C.  C.  A.,  236 
Fed.  1021. 


15  Seton  on  Decrees  (4th  ed.), 
1091;  Chicago  &  V.  E.  Co.  v.  Fos- 
dick, 106  U.  S.  47,  71,  27  L.  ed.  47, 
55;  Sheriff  v.  Sparks,  West,  130; 
Sonhouse  v.  Earl,  2  Ves.  Sen.  450; 
Whiting  V.  Bank  of  U.  S.,  13  Pet. 
6,  10  L.  ed.  33. 

16  Edwards  v.  Cunliffe,  1  Madd. 
287;  Seton  on  Decrees  (4th  ed.), 
1088. 

17  Monkhouse  v.  Corp.  of  Bedford, 
17  Ves.  380;  Geldard  v.  Hornby,  1 
Hare,  251;  Holford  v.  Yate,  1  K.  & 
J.  677;  Coombe  v.  Stewart,  13 
Beav.  11. 

18  Campbell  v.  Holyland,  L.  R.  7 
Ch.  D.  166;  Seton  on  Decrees  (4th 
ed.),  1088. 

19  Patch  V.  Ward,  L.  E.  3  Ch.  203, 
212;  Seton  on  Decrees  (4th  ed.), 
1098. 


1980 


DECREES 


[§401 


sums  subsequently  accruiug,  and  having  become  due,  according 
to  the  terms  of  the  security,  the  mortgagor  is  required  to  pay 
within  a  reasonable  time,  to  be  fixed  by  the  court,  and  which  if 
not  paid,  a  sale  of  the  mortgaged  premises  is  directed-^® 

By  rule,  "in  suits  in  equity  for  the  foreclosure  of  mortgages 
or  for  the  enforcement  of  other  liens,  a  decree  may  be  rendered 
for  any  balance  that  may  be  found  due  to  the  plaintiff  over  and 
above  the  proceeds  of  the  sale  or  sales,  and  execution  may  issue 
for  the  collection  of  the  same,  as  is  provided  in  rule  8,  when 
the  decree  is  solely  for  the  payment  of  money, "  ^i  A  deficiency 
decree  is  not  essential,  after  a  foreclosure  sale,  to  entitle  the 
mortgagee  to  the  payments  of  the  balance  due  him  from  the  earn- 
ings of  the  receivership ;  ^^  even  when  the  trustee  has,  in  his 
possession,  a  fund  deposited  to  secure  the  payment  of  interest, 
and  the  stockholders  of  i}ie  mortgagor  are  liable  for  unpaid 
instalments  of  their  subscriptions. ^^  It  has  been  held  that  this 
rule  obviates  the  necessity  of  a  prayer  in  the  bill  for  such  relief, 
although  it  is  the  better  practice  to  pray  for  it  specificall5^^* 


20  Chicago  &  V.  R.  Co.  v.  Fosdick, 
106  U.  S.  47,  70,  27  L.  ed.  47,  55; 
per  Matthews,  J.  But  see  Grape 
C.  C.  Co.  V.  Farmers'  L.  &  Tr.  Co., 
63  Fed.  893,  986 ;  supra,  §  394. 

21  Equity  Rule  10,  condensing  Eq. 
Rule  92  of  1842;  Northwestern  M. 
L.  I.  Co.  V.  Keith,  C.  C.  A.,  77  Fed. 
374. 

28  Boyce  v.  Continental  Wire  Co., 
125   Fed.   740. 

23  Land  Title  &  Trust  Co.  v.  As- 
phalt Co.,  C.  C.  A.,  127   Fed.   1. 

24  Seattle,  L.  S.  &  E.  Ry.  Co.  v. 
Union  Tr.  Co.,  C.  C.  A.,  79  Fed. 
179.  The  court  may,  however,  where 
the  mortgage  does  not  provide  that 
the  principal  shall  become  due  up- 
on a  default  in  interest,  direct  that 
the  property  be  sold  as  an  entirety 
and  that  the  principal  as  well  as  the 
interest  be  paid  out  of  the  proceeds. 
In  such  a  case  it  is  a  fatal  error  to 
declare  in  the  decree  of  foreclosure 
that    tko    whole    debt    is    due.     The 


power  to  treat  the  principal  as  due 
upon  a  default  in  interest  is  not  im- 
plied by  a  provision  giving  the 
trustee  the  right  to  take  possession 
upon  such  a  default,  to  apply  the 
income  on  account  of  principal  after 
payment  of  overdue  interest,  and  to 
cause  the  property  to  be  sold  as  an 
entirety;  where  the  mortgage  also 
provides  for  the  surrender  by  the 
trustee  of  possession  upon  payment 
of  arrears  of  interest,  costs  and  ex- 
penses at  any  time  before  the  sale. 
Grape  C.  C.  Co.  v.  Fanners'  L.  & 
Tr.  Co.,  C.  C.  A.,  63  Fed.  891.  A 
mortgage  and  the  bonds  secured 
thereby  are  to  be  construed  together, 
and  a  provision  in  a  mortgage  con- 
cerning the  method  of  distribution 
in  case  of  a  foreclosure,  which  is  not 
contained  in  the  bonds,  will  control. 
Low  V.  Blackford,  C.  C.  A.,  87  Fed. 
392.  It  has  been  said  that  if  the 
trustee  iniprovidently  declares  the 
principal  due,  the  court  may  set  that 


§402] 


DECREES    IX    THE    NATURE    OF    DECREES    NISI 


1981 


The  rule  does  not  authorize  the  entry  of  a  decree  for  the  l)alanee 
of  principal  not  due  on  the  forech)sure  of  a  mortgage  for  the 
failure  to  pay  interest,  unless  the  mortgage  so  provides.^^ 

A  State  statute  giving  a  mortgagor  a  right  of  redemption  with- 
in a  certain  time  after  a  mortgage  sale,  will  in  all  eases  be  fol- 
lowed by  the  Federal  courts,  since  it  establishes  a  rule  of  prop- 
erty.^^  In  the  absence  of  such  a  statute  there  is  no  right  of  re- 
demption after  the  sale  under  a  decree  of  foreclosure  which  has 
been  confirmed.^'' 

§  402.  Decrees  in  the  nature  of  decrees  nisi.  Decrees  in  the 
nature  of  decrees  nisi  are  decrees  taking  a  bill  against  a  defend- 
ant as  confessed,  and  decrees  under  the  statute  affecting  prop- 
erty within,  and  against  a  defendant  without,  the  jurisdiction 
of  the  court.  Decrees  taking  bills  as  confessed  are  described 
in  chapter  VIII,  The  cases  where  a  decree  against  a  defendant 
not  served  with  process  can  be  entered  under  the  act  of  March 
3,  1875,  have  ])een  already  described.^     Any  defendant  or  de- 


declaration  aside.  Mercantile  T.  Co. 
V.  Baltimore  &  0.  K.  Co.,  89  Fed. 
606,  610.  A  decree  directing  that 
the  surplus  upon  a  foreclosure  sale 
after  payment  of  preferential 
claims  should  be  divided  equally 
among  the  bondholders  was  held  not 
to  deprive  the  coupon  holders  of  a 
preference  given  them  in  the  mort- 
gage. Burke  v.  Short,  79  Fed.  6. 
A  provision  that  the  mortgagor 
shall  remain  in  possession  for  six 
months  after  default  in  interest  was 
held  not  to  preclude  the  trustee 
from  bringing  a  foreclosure  suit  im- 
mediately upon  the  default.  Farm- 
ers' L.  &  Tr.  Co.  V.  Winona  S.  W. 
Ry.  Co.,  59  Fed.  9.57.  Such  and 
similar  provisions  are  usually  con- 
strued as  cumulative  to  the  ordi- 
nary remedy  of  a  foreclosure  suit 
upon  a  breach  of  the  condition  of 
the  trust  deed  or  mortgage.  Cen- 
tral Tr.  Co.  V.  Worcester  C.  Mfg. 
Co.,  C.  C.  A.,  93  Fed.  712;  Farmers' 
L.  &  Tr.  Co.  V.  Chicago  &  N.  P.  R. 
Co.,  61  Fed.  543;  Mercantile  Tr.  Co. 


V.  Chicago,  P.  &  St.  L.  Ry.  Co.,  61 
Fed.  372;  Pennsylvania  Co.  for  Ins., 
etc.,  V.  Philadelphia  &  R.  R.  Co., 
69  Fed.  482.  It  has  been  held  that 
the  acceptance  by  the  mortgagee  of 
interest  paid  by  the  receiver  of  the 
property  appointed  in  his  suit  for 
foreclosure  is  not  a  waiver  of  his 
right  to  continue  the  suit  when  oth- 
er installments  of  interest  remain 
due  and  unpaid.  American  L.  &  Tr. 
Co.  V.  Union  Depot  Co.,  80  Fed.  36. 
26  Ohio  Cent.  R.  Co.  v.  Central 
Tr.  Co.,  133  U.  S.  83,  33  L.  ed.  561. 

26  Brine  v.  Insurance  Co.,  96  U. 
S.  627,  24  L.  ed.  858;  Orvis  v.  Pow- 
ell, 98  U.  S.  176,  25  L.  ed.  238; 
Hammock  v.  Farmers'  L.  &  Tr.  Co., 
105  U.  S.  77,  26  L.  ed.  1111;  Mason 
V.  N.  W.  Ins.  Co.,  106  U.  S.  163,  27 
L.  ed.  129;  Conn.  Mut.  L.  Ins.  Co.  v. 
Cushman,  108  U.  S.  51,  27  L.  ed. 
648. 

27  Parker  v.  Dacres,  130  U.  S.  43, 
32  L.  ed.  848. 

§  402.     1  Supra,  §  166. 


1982  DECREES  [§  403 

fendants  to  such  a  statutory  decree  "not  actually  personally 
notified"  of  the  suit,  in  accordance  with  the  provisions  of  the 
statute,  may,  at  any  time  within  one  year  after  final  decree, 
enter  his  appearance  in  said  suit,  and  thereupon  the  court  must 
make  an  order  setting  aside  the  decree  therein,  and  permitting 
such  defendant  to  plead  on  payment  of  such  costs  as  the  court 
shall  deem  just;  and  thereupon  the  suit  is  proceeded  with  to 
final  judgment  according  to  law.^ 

§  403.  Time  of  entry  of  decree.  A  decree  can  regularly  be 
entered  only  during  a  term  of  the  court.^  The  court  has  power 
to  allow  a  decree  to  be  entered  even  in  vacation  as  of  a  previous 
term,  nunc  pro  tunc.^  Such  leave  will  always  be  granted  when 
the  delay  was  caused  by  the  action  of  the  court,* 

§  404.  Frame  of  decree.  Decrees  originally  always  consisted 
of  three,  and  sometimes  of  four,  parts.  These  were :  the  date 
and  title ;  the  recitals ;  the  declaratory  part,  if  that  were  re- 
quired; and  the  ordering  part.^ 

A  decree  usually  begins  with  a  recital  of  the  day  of  the  month 
and  year  when  it  was  pronounced,^  and  of  the  title  of  the  cause, 
in  which  the  parties  should  have  the  same  designations  that 
were  given  them  in  the  bill,*  Next  always  followed,  formerly, 
a  recital  of  the  pleadings,  evidence,  and  former  proceedings 
in  the  cause,*  The  equity  rules,  however,  provide  that  "in 
drawing  up  decrees  and  orders,  neither  the  bill  nor  answer, 
nor  other  pleadings,  nor  any  part  thereof,  nor  the  report  of 
any  master,  nor  any  other  prior  proceeding,  shall  be  recited 
or  stated  in  the  decree  or  order;  but  the  decree  and  order  shall 
begin,  in  substance,  as  follows :  'This  cause  came  on  to  be  heard 
(or  to  be  further  heard,  as  the  case  may  be)  at  this  term,  and 
was  argued  by  counsel ;  and  thereupon,  upon  consideration 
thereof,  it  was  ordered,  adjudged,  and  decreed  as  follows, 
viz.'  "5 

2U.  S.  R.  S,,  §738;   18  St.  at  L.  §404,      iDaniell's    Ch.    Pr.,    eh. 

472.  XXV. 

§  403.        1  Griswold      v.      Hill,      1  2  Whitney  v.  Belden,  4  Paige   (N. 

Paine,  483.  Y.),     140;     Barclay     v.     Brown,     7 

2  Gray    v.    Brignardello,    1    Wall.  Paige  (N.  Y.),  245. 

627,  17  L.  ed.  693;  Griswold  v.  Hill,  3  Daniell's  Ch.  Pr.,  ch.  xxv. 

1   Paine,  483.  4  Seton   on   Decrees    (4th   ed.),   9- 

3  Gray    v.    Brignardello,    1    Wall.       19. 

627,  17  L.  ed.  693.  6  Eule  71. 


§404] 


FRAME   OF    DECREE 


1983 


The  recitals  in  a  decree  of  facts  which  supported  the  juris- 
diction, import  verity  and  sufficiency  to  support  the  decree 
against  collateral  attacks.^  It  has  been  so  held  of  a  recital  as 
to  personal  service  of  process.''  It  has  been  said  that  it  should 
appear  affirmatively  upon  the  face  of  the  decree,  that  the  de- 
fendant was  properly  served  with  process.' 

Next  when  a  decree  is  entered  by  consent,  the  fact  that  con- 
sent M'as  given.  A  recital  to  that  effect  is  conclusive  of  the 
fact,  unless  evidence  to  the  contrary  is  presented.*  The  proper 
place  for  such  a  statement  is  ordinarily  in  the  recitals,  unless 
consent  be  only  given  to  certain  directions,  when  the  state- 
ment of  the  consent  should  immediately  precede  such  direc- 
tions.^® 

The  declaratory  part  of  a  decree,  which  if  desired  at  all 
should  be  next  inserted,  contains  a  declaration  of  matters  of 
fact,  or  of  the  rights  of  one  or  more  of  the  parties  to  the  cause, 
or  a  statement  of  the  reason  for  the  decree  or  any  part  thereof. 
This  statement  of  reasons  is  not  necessary  "  nor  usual.^^  ai. 
though  its  utility  has  been  noticed  ^^  and  it  is  sometimes 
adopted.^* 


6  United  States  v.  Hiawassee 
Lumber  Co.,  C.  C.  A.,  202  Fed.  35. 

7  Ibid.  Johnson  v.  North  Star 
Lumber  Co.,  C.  C.  A.,  206  Fed.  624. 
A  recital  in  an  order  for  service  on 
a  defendant  by  publication  that  "it 
appearing  to  the  satisfaction  of  the 
court"  that  the  defendant  cannot 
be  found  within  the  state  is  not  an 
adjudication  or  finding  that  it  has 
been  shown  to  the  satisfaction  of 
the  court  by  affidavit  that  the  "de- 
fendant after  due  diligence  cannot 
be  found  within  the  state"  which, 
under  B.  &  C.  Comp.  Or.  §  56,  is 
essential  to  the  acquiring  of  juris- 
diction by  such  service  which  will 
sustain  a  judgment.  Starks  v. 
Sims,  C.  C.  A.,  230  Fed.  115. 

8  Allen  v.  Blunt,  1  Blatchf.,  C. 
C.  480, 

9  Lay  V.  Olstan,  C.  C.  A.,  172  Fed. 
90;    Tarrct  &   Co.   v.   Sweet  Valley 


Wine  Co.,  251  Fed.  371.  As  to  the 
effect  of  a  consent  decree  upon  an 
infant,  see  Glover  v.  Bradley,  C.  C. 
A.,  233  Fed.  721,  supra,  §  106. 

lOSeton  on  Decrees  (4th  ed.), 
1535;  Bartlett  v.  Wood,  9  W.  R. 
817. 

11  Allen  v.  Blunt,  1  Blatchf.,  C.  C. 
480;  Liebing  v.  Matthews,  C.  C.  A., 
216  Fed.  1;  Linde  Air  Products  Co. 
v.  Morse  Dry  Dock  &  Repair  Co., 
C.  C.  A.,  239  Fed.  909. 

l^Ex  parte  Earl  of  Ilchester,  7 
Ves.  348,  373;  Seton  on  Decrees 
(4th  ed.),  19. 

13Bax  v.  Whitbread,  16  Ves.  15, 
24;  Gordon  v.  Gordon,  3  Swanst. 
400,  478.  Recitals  in  a  decree  of 
foreclosure  of  previous  proceedings 
in  the  suit  are  sufficient  prim<x  faci^ 
evidence  of  such  proceedings.  Koons 
v.  Beyson,  C.  C.  A.,  69  Fed.  297. 

H  Gordon    v.    Gordon,    3    Swanst. 


1984 


DECREES 


[§404 


Such  a  declaration  is  useful  in  order  to  establish  the  right 
to   costs   when   the    complainants'   right   to    relief   has   expired 
pending  the  suit.^^     It  is  improper  to  include  in  a  decree  dis- 
missing a  bill,  findings  upon  issues  decided  in  favor  of  the  com- 
plainant.^^    In  decrees  of  punishment  for  contempt  recitals  of 
the  facts  are   customary   if  not   indispensable.^''^      There   is  no 
necessity  of  any  finding  of  facts  unless  in  the  absence  of  such 
a  finding  it  would  be  impossible  to  know  what  the  decree  actu- 
ally meant. ^®     Instances  of  declarations  of  matters  of  fact  are 
the  existence  and  validity  of  a  will  or  other  instrument,^*  and 
the  validity  of  a  patent. 2"     It  has  been  said  that  a  patent  is 
suflSciently  identified  in  a  decree  by  giving  its  number  and  the 
patentee's  name,  and  that  the  decree  is  not  rendered  void  for 
uncertainty  because  the  description  of  the  invention  is  not  given 
in  the  language  of  the  title  head  of  the  patent. ^^     So,  when- 
ever there  are  interfering  patents,  and  a  suit   is  brought  by 
any  person  interested  in   any  one  of  them,  or  in  the  working 
of   any  one  of  them,   to   obtain  relief  against   the   interfering 
patentee,  the  court,  on  notice  to  adverse  parties,  and  other  due 
proceedings  had  according  to  the  course  of  equity,  may  adjudge 
and  declare  either  of  the  patents  void  in  whole  or  in  part,  or 
inoperative,  or  invalid   in  any  particular  part  of  the  United 
States,  according  to  the  interest  of  the  parties  in  the  patent 
or  the  invention  patented;  but  no  such  judgment  or  adjudica- 
tion can  affect  the  right  of  any  person,  except  the  parties  to 
the  suit  and  those  deriving  title  under  them  subsequent  to  the 
rendition  of  such  decree.22    Where  a  party  establishes  his  right 


400,  478;  Jenour  v.  Jenoiir,  10  Ves. 
573;  Atty.  Gen.  v.  Clapham,  4  De 
G.  M.  &  G.  591,  607 ;  Austin  v.  Aus- 
tin, 11  Jur.   (N.  S.)   536. 

15  Smith  V.  Ingersoll-Sergeant 
Rock  Drill  Co.,  7  Misc.  (N.  Y.), 
374,  377;  Williams  v.  United  Wire- 
less Tel.  Co.  (N.  Y.  Sup.  Ct.,  per 
Bisehofe,  J.),  N  Y.  L.  J.,  AprU  24, 
1912,  in  which  the  writer  was  coun- 
sel. 

16  Linde  Air  Products  Co.  v. 
Morse  Dry  Dock  &  Eepair  Co.,  C.  C. 
A.,  239  Fed.  909. 


17  Fischer  v.  Hayes,  6  Fed.  63 ; 
i7}fra,  §  430. 

18  Liebing  v.  Matthews,  C.  C.  A., 
216  Fed.  1. 

19  Seton  on  Decrees  (4th  Ed.), 
19,  20. 

20  Union  S.  R.  v.  Mathiesson,  3 
Cliff.   146. 

21  Maginn  v.  Standard  Equip- 
ment Co.,  C.  C.  A.,  150  Fed.  139. 

22  U.  S.  R.  S.,  §4918.  See  Fos- 
ter V.  Lindsay,  3  Dill.  126;  Pent- 
large  V.  Pentlarge,  19  Fed.  817; 
s.  c,  22  Fed.  412;  supra,  §  147. 


§404] 


FRAMf:    (»K    IlECREE 


1985 


to  property,  the  direction  to  transfer  it  to  him  is  oft  on  pre- 
ceded by  a  declaration  of  his  title.^ 

The  court  will  not  thus  decide  rights  as  between  eodefend- 
ants  unless  a  cross-bill  or  counter-claim  has  been  filed  for  that 
purpose,^*  or  it  be  necessary  in  order  to  determine  the  rights 
of  the  plaintiff,  or  possibly  when  the  evidence  is  clear  and  the 
case  between  them  ripe  for  decision;  ^s  and  language  in  a  decree 
broad  enough  to  determine  such  rights  will  usually  be  con- 
strued as  merely  determining  rights  as  between  the  jilaintitf 
and  the  defendants,  if  no  controversy  between  the  defendants 
appears  upon  the  pleadings.^^ 

It  has  been  held  that  in  a  suit  on  behalf  of  a  class  a  decree 
beyond  the  issues,  and  not  prayed  in  the  bill,  is  void  as  against 
members  of  the  class  who  do  not  intervene.^''^ 

The  court  will  not  make  a  declaration  of  mere  future  rights,^* 
nor  as  to  the  rights  of  parties  upon  a  contingency  that  has 
not  happened,^^  nor,  it  was  formerly  held,  as  to  mere  legal 
rights ;  ^®  unless  such  a  determination  is  indispensable  to  the 
declaration  of  the  present  equities  of  the  parties.  A  declara- 
tion, that  a  deed  to  property  beyond  the  jurisdiction  of  the 
court  is  fraudulent  and  void,  is  of  no  effect  unless  accompanied 
by  a  direction  that  a  party  to  the  suit  execute  a  reconveyance 
or  deliver  up  the  deed  for  cancellation,  and  compliance  is  made 
with  such  direction.'^  It  seems  that  the  court  should  not  make 
a  declaration  of  the  rights  of  the  parties  in  a  hearing.32 

The  conclusion  of  a  decree  is  its  ordering  or  mandatory  part, 


23  Jenoiir  v.  Jenour,  10  Ves,  562; 
Seton  on  Decrees  (4th  ed.),  20, 

24  Thomas  v.  Lloyd,  25  Beav.  620; 
Graham  v.  Eailroad  Co.,  3  Wall. 
704;  Seton  on  Decrees  (4th  ed.), 
20.     Supra,  §§  197,  200. 

26  Jolly  V.  Arbuthnot,  4  De  G.  & 
J.  224,  245;  Gresley  v.  Mousley,  4 
De  G.  &  J.  78,  99;  Cottingham  v. 
Earl  of  Shrewsbury,  3  Hare.  627; 
Seton  on  Decrees  (4th  ed.),  20. 

26  Graham  v.  Eailroad  Co.,  3 
Wall.  704,  18  L.  ed.  247. 

27  Clark  v.  Arizona  Mut.  Savings 
&  Loan  Ass'n,  217  Fed.  640. 

28  Cross  V.  De  Valle,  1  Wall.  5, 
17   L.   ed.    515;    Lady    Langdale   v. 


Briggs,  4  W.  R.  703;  Fletcher  v. 
Bealey,  33  W.  E.  745;  City  Ry.  Co. 
V.  Citizens'  Street  E.  Co.,  166  U.  S. 
557,  570,  41  L.  ed.  1114,  1118; 
Seton  on  Decrees   (4th  ed.),  20. 

29  Dowling  v.  Dowling,  L.  E.  1 
Ch.  612;  Seton  on  Decrees  (4th  ed.), 
20. 

30  Birkenhead  Docks  v.  Laird,  4 
De  G.  M.  &  G.  732;  Webb  v.  Byng, 
8  De  G.  M.  &  G.  633;  Seton  on  De- 
crees  (4tli  ed.),  20. 

31  Carpenter  v.  Strange,  141  U. 
S.  87,  106,  35  L.  ed.  640,  648; 
supra,  §  398. 

32  Jennings  v.  Simpson,  1  Keen, 
404. 


1986  DECREES  [§  404 

which  contains  the  specific  directions  of  the  court  upon  the 
matter  before  it.^^  As  these  directions  vary  according  to  the 
nature  of  the  case  before  the  court,  it  would  be  impossible  to 
lay  down  any  definite  rule  concerning  them.  Nothing  is  more 
elastic  and  less  arbitrary  than  this  part  of  a  decree  in  equity. 
The  directions  to  the  different  parties  may  be  separate,  re- 
ciprocal, direct,  or  inverted,  as  long  as  they  are  not  incon- 
sistent.^* If  there  be  several  plaintiffs  suing  jointly,  the  de- 
cree may  be  joint  or  several,  in  conformity  with  their  respec- 
tive rights,  as  finally  determined ;  and  if  a  number  of  defend- 
ants, a  single  direction  may  be  given  to  all,  or  a  separate 
direction,  or  even  a  separate  decree  against  each.^^ 

Certain  general  rules  governing  particular  kinds  of  decrees 
may,  however  be  stated.  If  the  decree  be  for  the  performance 
of  any  specific  act  except  the  payment  of  money,  as,  for  ex- 
ample, for  the  execution  of  a  conveyance  of  land  or  the  delivery 
of  deeds  or  other  documents,  the  decree  must  prescribe  the 
time  within  which  the  act  must  be  done.^® 

Decrees  for  an  account  should  always  specify  the  time  from 
which  the  account  is  to  be  taken.^'''  By  the  Equity  Rules  "Every 
decree  for  an  account  of  the  personal  estate  of  a  testator  or 
intestate  shall  contain  a  direction  to  the  master  to  whom  it  is 
referred  to  take  the  same,  to  inquire  and  state  to  the  court 
what  parts,  if  any,  of  such  personal  estate  are  outstanding  or 
undisposed  of,  unless  the  court  shall  otherwise  direct. ' '  *^ 

The  old  form  of  a  decree  to  set  aside  a  forged  instrument 
was  that  the  document  "be  cut,  damned,  and  canceled. "^^  It 
is  now  usual  to  direct  that  the  instrument  be  delivered  to  the 
clerk  of  the  court  for  cancellation.*" 

By  statute,  when  a  Federal  court  of  equity  awards  an  in- 

33Danieirs  Ch.  Pr.,  ch.  XXV.  36  Eq.  Kule  8. 

34  Lingan  v.  Henderson,  1  Bland  37  Cummings  v.  Adams,  2  Irish 
(Md.)    236,   275;    Hodges  v.   MuUi-       Eq.   393. 

kin,  1   Bland   (Md.)    503,  507;   Ow-  38  Eq.  Kule  73  of  1842. 

ings'    Case,    1    Bland     (Md.)     370,  39  Bishop  of  Winchester  v.  Four- 

404,   17   Am.  Dec.   311.  nier,    2    Ves.    Sen.    445;    Fitton    v. 

35  Lingan  v.  Henderson,  1  Bland  Earl  of  Macclesfield,  1  Ves.  287, 
(Md.)  236,  256;  Hodges  v.  MuUi-  292;  Seton  on  Decrees  (4th  ed.), 
kin,  1  Bland  (Md.)  503,  507;  Quar-  1346. 

les    V.    Quarles,    2    Mumford    (Va.)         .  40  General  Chemical  Co.  v.  Black- 
321;    Elliott    v.    Pell,   1    Paige    (N.       more,   156  Fed.  968. 
Y.)   263;     Barnes  v.  Midland  E.  E. 
Terminal  Co.,  218  N.  Y.  91. 


§  404]  FRAME  OF  DECREE  1987 

junction  against  the  infringement  of  a  patent,*^  copyright  *2  or 
trade  mark,*^  it  may  assess  the  damages  the  complainant  has  sus- 
tained by  the  injunction,  as  well  as  compel  an  account  of  the 
profits,  and  it  has  the  power  to  award  treble  damages,  but  not  to 
award  treble  profits.**  It  was  formerly  held  that,  in  a  suit  in 
equity  for  the  infringement  of  a  copyright,  there  could  be  no  re- 
covery by  way  of  damages,  ])eyond  the  profits  made  by  the  defend- 
<  ant.**  A  court  of  equity  when  granting  an  injunction  has  no 
jurisdiction  to  include  in  the  decree  an  award  of  statutory  pen- 
alties for  previous  acts  similar  to  thase  enjoined.***  When 
granting  specific  performance,  it  may  award  damages  for 
previous  delay.""  In  suits  in  equity  for  the  foreclosure  of  mort- 
gages, a  decree  may  be  rendered  for  any  balance  that  may 
be  found  due  to  the  complaint  over  and  above  the  proceeds  of  the 
sale  or  sales,  and  execution  may  issue  for  the  collection  of  the 
same  as  is  provided  in  the  eighth  equity  rule.*^  Upon  the  fore- 
closure of  a  railroad  mortgage  in  a  Federal  court  it  is  customary 
to  insert  in  the  decree  a  direction  that  the  purchaser  pay  all  valid 
claims  against  the  receiver  and  such  indebtedness  of  the  mort- 
gagor as  has  a  preference  over  the  mortgage  debt.*'  It  has  been 
held  that  such  claims  cannot  be  enforced  by  the  State  courts 
against  the  purchaser,**  but  that  suits  upon  them  must  be  pros- 
ecuted in  the  Federal  court  upon  the  common  law  or  equity  side, 

41  U.  S.  R.  S.,  §4921,  as  amend-  46  Covert  v.  Sargent,  42  Fed.  298; 
ed,  29  St.  at  L.  692,  §  615  Fed.  St.  Campbell  v.  James,  5  Fed.  807. 
Ann.    577,   Pierce   Fed.    Code,    968;  45a  it.    s.    v.    Ash    Sheep    Co.,   229 
supra,  §  389e.  Fed.  479. 

42  35  St.  at  L.  1081;  37  St.  at  L.  45b  Chicago,  m.  &  St.  P.  Ry.  Co. 
489;   supra,  §  389h.  v.    U.    S.,   C.    C.    A.,    218   Fed.    288. 

43  Act  of  Feb.  4,  1887,  24  St.  at  See  supra,   §  377. 

L.  387,  5  Fed.  St.  Ann.  603,  Comp.  46  Equity   Rule   10;    Northwestern 

St.  3398;  supra,  §  389i.  M.  L.  I.  Co.  v.  Keith,  C.  C.  A.,  77 

44  Ibid.,  U.  S.  R.  S.,  §§4917,  Fed.  374;  *wpra,  §  402;  m/ro,  §  427. 
4921;  Livingston  v.  Woodworth,  15  47  Jesup  v.  Wabash,  St.  L.  &  P. 
How.  546,  14  L.  ed.  809;  Zive  v.  Ry.  Co.,  44  Fed.  663;  Thompson  v. 
Peek,  13  Fed.  475;  Lyon  v.  Donald-  Northern  Pac.  Ry.  Co.,  93  Fed.  384, 
son,    34    Fed.    789;    Welling    v.    La  388.     Supra,  %  294. 

Bau,  35  Fed.  302;   Guyon  v.  Serrell,  48  Jesup   v.   Wabash,   St.   L.   &  P. 

1    Blatchf.   244;    Peek   v.   Frame,   9       Ry.    Co.,    44    Fed.    663;    Stewart   v. 
Blatchf.  194;   Sounders  v.  Logan,  2       Wisconsin   Cent.   Ry.   Co.,   117   Fed. 
Fish.     167;      Sehwanzel     v.     Holen-       782. 
shade,  3  Fish.  196;   Brodie  v.  Ophir 
Silver  Mining  Co.,  4  Fish.  37;  supra, 
§§  389a,  g,  h,  i. 


1988 


DECREES 


[§404 


as  the  nature  of  the  case  requires.*^  The  creditor  must  bring  his 
judgment  into  the  foreclosure  suit,  where  it  will  be  enforced  as 
a  lien  upon  the  property  in  the  hands  of  the  purchaser.^" 

Where  Bradley  was  trustee  under  two  deeds  of  trust,  a  de- 
cree appointing  Johnson  a  trustee  in  his  place  "in  the  deed  of 
trust,"  without  specifying  which  deed  of  trust  was  held  void 
for  uncertainty.^^ 

In  a  decree  restraining  unfair  competition,  it  is  proper  to 
include  a  description  of  the  work  and  advertisements  which 
may  be  used  by  the  defendant. ^^ 

The  mandatory  part  is  essential  to  a  decree.^' 

A  decree  must  be  complete  in  itself  so  far  as  the  ordering 
part  thereof  is  concerned.^*  The  statement  that  the  plaintiif 
is  entitled  to  a  specified  sum  of  money  and  that  the  defendant 
"be  ordered  to  pay"  this  is  sufficient."  A  finding  of  facts  is 
not  a  decree.^® 

An  order  directing  the  defendant  to  do  something  "as  de- 
creed by  this  Court  on"  the  date  of  the  findings  does  not  make 
the  former  a  decree.^' 

An  order  entered  on  the  minutes,  on  motion  of  defendant, 
that  the  court  "does  now  dismiss  this  bill  for  want  of  prosecu- 
tion," is  in  effect  a  final  decree,  binding  on  defendant.^*  An 
entry  on  the  docket  of  the  court  of  first  instance  that  the  case 
had  been  decided  in  favor  of  a  party,  specifying  the  amount 
of  costs  and  damages  and  appeal  granted,  which  was  fol- 
lowed ])y  an  entry  on  the  docket  of  the  court  of  review  that 
the  decision  below^  was  confirmed  was  held  to  prove  that  the 
action  had  proceeded  to  final  judgment. ^^ 


49  Thompson  v.  Northern  Pac.  Ey. 
Co.,  93  Fed.  384. 

50  Thompson  v.  Northern  Pac.  Ky. 
Co.,  93  Fed.  384,  388;  supra,  §394. 
Where  it  was  claimed  that  a  fund 
due  from  a  defendant  had  been  as- 
signed and  notices  of  attachment 
had  been  served,  it  was  held  that  the 
decree  should  provide  for  the  pay- 
ment of  the  fund  into  court,  and 
that  the  defendant  might  protect  it- 
self by  bringing  in  the  parties 
claimant.  Mundy  v.  Louisville  &  N. 
Ry.  Co.,  C.  C.  A.,  67  Fed.  633. 

51  Shepherd  v.  Pepper,  133  U.  S. 
626,  33  L.  ed.  706. 


62  Coca-Cola  Co.  v.  Gay-ola  Co., 
C.  C.  A.,  211  Fed.  942. 

63  Oklahoma  City  v.  McMaster, 
196  U.  S.  529,  533,  49  L.  ed.  587. 

54  Ibid. 

55  Smith  v.  Smith,  C.  C.  A.,  247 
Fed.   461. 

56  Oklahoma  City  v.  McMaster, 
196  U.  S.  529,  532;  49  L.  ed.  587. 

67  Ibid. 

58  Westinghouse  Tr.  Brake  Co.  v. 
Orr,  C.  C.  A.,  252  Fed.  392.  See 
svpra,   §  1861. 

69Holford  v.  James,  136  Fed. 
533.     See  §  1861,  supra. 


405] 


MOTIONS  AT  THE  FOOT  OF  A  DECREE 


1989 


The  decree  is  final  although  it  leaves  the  amount  of  costs  in 
blank  to  be  noted  by  the  clerk. ^'^ 

A  decree  for  the  payment  of  money  is  not  invalid  because  it 
does  not  in  terms  direct  the  issue  of  an  execution."  An  execu- 
tion will  issue  notwithstanding  under  the  equity  rules  which 
make  all  such  decrees  thus  enforceable.'^^ 

§  405.  Motions  at  the  foot  of  a  decree.  It  is  usual  where  a 
suit  involves  the  distribution  of  a  fund  in  court,  or  otherwise 
affects  the  rights  of  numerous  persons,  to  add  a  clause  to  the 
decree  giving  the  right  to  the  parties  to  apply  to  the  court 
for  other  orders  or  direct  ' '  at  the  foot  of  the  decree. ' '  ^  Under 
such  a  clause,  the  court  will  usually  listen  to  no  further  ap- 
plication, except  as  to  matters  concerning  which  directions 
w^ere  contained  in  the  first  decree  first  entered.  Thus,  it  has 
been  held:  that  it  will  not,  under  such  a  clause,  entertain  an 
application  to  set  aside  a  sale  made  under  a  decree ;  ^  that  this 
gives  no  right  to  move  to  set  aside  a  sale  which  has  been  con- 
firmed; but  that  it  is  limited  to  applications  for  such  orders 
as  may  be  necessary  in  the  distribution  of  the  funds  concern- 
ing which  there  is  a  dispute  between  different  persons,  both 
claiming  under  the  decree  or  for  the  delivery  of  the  possession 
of  the  property  afi'ected,^  that  a  similar  reservation,  in  a 
decree  of  foreclosure  and  sale,  does  not  authorize  the  inclu- 
sion, in  the  order  confirming  the  sale,  of  an  injunction  against 
all  parties  to  the  suit  and  all  persons  claiming  under  them, 
and  their  attorneys  and  solicitors  "from  setting  up  any  pre- 
tended or  alleged  title  against  the  title  purchasers."  *  A  decree 
foreclosing  a  mortgage,  payable  in  instalments,  may  contain  a 
clause  authorizing  the  complainants  on  petition  to  have  an  order 


60  Smith  V.  Smith,  C.  C.  A.,  247 
Fed.  461;  supra,  §  18Gb. 

61  Richards  v.  Harrison,  218  Ted. 
134.  See  Pearse  v.  Rathburn- 
Jones,  Eng.  Co.,  243    U.  S.  273. 

68  Ibid. 

§  405.  1  Wetmore  v.  St.  Paul  & 
P.  Ry.  Co.,  3  Fed.  177.  It  was  held 
that  a  decree  granting  a  perpetual 
injunction  against  the  diversion  of 
water  from  a  stream,  which  allowed 
the  defendants  to  apply  for  a  vaca- 
tion of  the  same  upon  establishing 
Fed.  Prac.  Vol.  11—55 


in  other  proceedings  their  right  to 
the  water,  was  erroneous  as  incon- 
sistent and  not  determinative  of  the 
question  at  issue.  Pacific  Live  Stock 
Co.  V.  Silvies  River  Irr.  Co.,  C.  C. 
A.,  200   Fed.  487. 

2  Wetmore   v.   St.   Paul  &  P.  Ry. 
Co.,  3  Fed.  177. 

3  Lewis    v.    Peck,    C.    C.    A.,    154 
Fed.  273. 

4  Fleming  v.  Soulter,  6  Wall.  747, 
18  L.  ed.  847. 


1990 


DECREES 


[§406 


of  sale  in  case  of  default  as  to  any  future  instalment ;  ^  and 
upon  a  bill  compelling  a  specific  performance  of  a  contract  for 
the  payment  of  money  in  instalments,  the  decree  may  contain 
a  clause  providing  that,  in  case  of  subsequent  defaults,  a  mo- 
tion may  be  made  at  the  foot  of  the  decree  for  judgments  for 
such  instalments  as  are  then  unpaid,  with  interest  and  costs.^ 
§  406.  Enrollment  of  decree.  By  the  former  chancery  prac- 
tice, a  decree  did  not,  strictly  speaking,  become  a  record  of  the 
court  until  it  had  been  enrolled;  and  although  the  court,  after 
it  had  been  entered,  treated  it  as  a  foundation  for  ulterior  pro- 
ceedings, it  was  not  considered  to  be  of  a  nature  sufficiently 
permanent  to  be  entitled  in  other  courts  to  the  same  attention 
that  is  paid  by  one  court  of  record  to  the  records  of  other  courts 
of  the  same  nature.^  Until  the  enrollment  the  decree  was  con- 
sidered to  be  entered  provisional  and  interlocutory,  so  that  it 
could  be  altered  by  the  court  itself  at  a  rehearing ; «  but  it 
seems  that  an  appeal  to  the  House  of  Lords  lay  before  the  en- 
rollment.3  A  decree  could  be  enrolled  by  a  defendant  as  well 
as  by  a  plaintiff,  and  at  any  time,  notwithstanding  an  abate- 
ment of  the  suit.*  An  enrollment  could  be  vacated  for  irregu- 
larity *  or  for  surprise,  mistake,  fraud,  or  excusable  neglect.^ 
After  the  decree  had  been  enrolled,  it  could  only  be  altered  by 
a  bill  of  review  or  an  appeal  to  the  House  of  Lords.''' 


6  Libby  v.  Rosekrans,  55  Barbour 
(N.  Y.)   202,  215,  239. 

6  In  Dancel  v.  Goodwear  Shoe  Ma- 
chinery Co.,  137  Fed.  157;  s.  C,  C. 
C.  A.,  144  Fed.  679;  certiorari  de- 
nied 202  U.  S.  619,  50  L.  ed.  1174; 
in  which  the  author  was  counsel; 
such  a  decree  was  entered,  but  an 
objection  to  it  upon  that  ground 
was  not  taken  upon  the  appeal. 

§406.  IDanieU's  Ch.  Pr.  (1st 
Am.  ed.)  1220,  1221.  Although  a 
decree  which  had  not  been  signed 
.and  enrolled  could  not  be  pleaded 
in  bar,  it  was  held  in  New  York 
that  it  could  be  set  up  by  answer. 
Davoue  v.  Fanning,  4.  J.  Ch.  (N. 
Y.)  199;  Lyon  v.  Talmage,  14  J. 
(N.  Y.),  501. 

aDaniell's  Ch.  Pr.   (1st  Am.  ed.) 


1221m,  1222,  1224,  criticized  the 
4ktn7n  of  Lord  Brougham  in  Par- 
ker V.  Downing,  1  M.  &  K.  634; 
infra,  §  445. 

3  Gartside  v.  Isherwood,  2  Dick. 
612;  Sheffield  v.  Duchess  of  Buck- 
ingham, Amb.  586;  s.  C,  West  R. 
673;  Daniell's  Ch.  Pr.  (1st  Api.  ed.) 
1225. 

4  Barnes  v.  Wilson,  1  R.  &  M.  486. 

5  Daniell's  Ch.  Pr.  (1st  Am.  ed.) 
1230,  1232. 

6  Kemp  V.  Squires,  1  Ves.  Sr. 
205;  Millspaugh  v.  McBride,  7 
Paige  (N.  Y.),  509,  34  Am.  Dec. 
360;  Tripp  v.  Vincent,  8  Paige  (N. 
Y.),  176;  Daniell's  Ch.  Pr.  (1st. 
Am.  ed.)  1230,  1232. 

7  Daniell's  Ch.  Pr.   (1st  Am.  ed.) 


§  -406]  ENI{(>lJ,.Mi:\T  OF   DECrtKE  lf)!)l 

Tlie  enrollment  was  made  after  the  Lord  Chancellor  had 
signed  the  docket,  by  the  engrossment  of  an  exact  copy  upon 
the  parchment  rolls,  Avhich  together  with  the  docket  were  car- 
ried into  the  record  room  of  the  record  and  writ  clerk's  ofifice 
and  deposited  with  the  record  keeper  for  safe  custody.  There- 
U])on  the  enrollment  was  complete.* 

]n  the  Federal  courts  there  is  no  formal  enrollment  such  as 
was  made  in  chancery;  but  the  statute  requires  that  a  final 
record  be  made  up  by  the  clerk,  and  that  "in  equity  and  ad- 
miralty cases,  only  the  process,  pleadings,  decrees,  and  such 
orders  and  memorandums  as  may  be  necessary  to  show  the  ju- 
risdiction of  the  court  and  regularity  of  the  proceedings  shall 
be  entered  upon  the  final  record."^  By  the  equity  rules  the 
clerk  must  "keep  an  Equity  Journal  in  wliich  shall  be  entered 
all  orders,  decrees  and  proceedings  of  the  court  in  equity  causes 
in  term  time."^®  This  record  has  been  said  to  correspond  in 
some  respects  to  the  enrollment  in  chancery ;  but  what  effect 
it  has  upon  the  rights  of  the  parties  seems  never  to  have  been 
decided. ^^ 

1232;  Gore  v.  Purdon,  1  Sch.  &  Lef.  10  Eq.  Eule  3. 

234.     See  infra,  §  447.  H  Consolidated    Store    S.    Co.    v. 

SDaniell's  Ch.  Pr.   (1st  Am.  ed.)  Dettenthaler,  93   Fed.  307.     See  in- 

1227,  1228.  fra,  ch.  XXIX. 

9  U.  S.  E.  S.,  §  750. 


CHAPTER  XXVII. 

COSTS. 

§  407.  Costs  in  general.  Costs  is  the  term  given  to  the  sum 
of  money  which  is  paid  to  the  successful  party  to  a  litigation,  to 
reimburse  him  for  his  expense  and  trouble.^ 

The  costs  of  an  action  at  common  law  are  governed  by  fixed 
and  arbitrary  rules.^  In  equity,^  and  admiralty  the  award  or 
denial  of  costs  is  always  in  the  discretion  of  the  court ;  *  and 
so  very  frequently  is  their  amount  when  awarded.^  When, 
however,  it  is  said,  as  it  often  is,  that  the  award  of  costs  in 
equity  is  purely  discretionary,  it  should  not  be  supposed  that 
courts  of  equity  are  governed  by  no  fixed  principles  in  their 
decisions  relative  to  the  costs  of  proceedings  before  them.  All 
that  is  meant  by  the  expression  is  that,  in  awarding  costs,  they 
will  take  into  consideration  the  circumstances  of  the  cases  before 
them  and  the  situation  or  conduct  of  the  parties,  and  exercise 
with  reference  to  these  points  a  discretion  governed  by  certain 
reasonable  definite  rules,  the  enforcement  of  which  is  not  de- 
pendent upon  the  caprice  of  the  judge  by  whom  each  cause 
happens  to  be  heard,  but  is  often  a  ground  of  review  by  an  ap- 
pellate tribunal.^ 

§408.  Costs  at  common  law.  Unless  otherwise  provided  by 
statute  the  successful  party  in  an  action  at  common  law  is 
awarded  costs  ^  the  costs  cannot  be  apportioned.^* 

§  407.       1  Provident         Chemical  6  Brooks  v.   Byam,   2   Story,   553; 

Works  V.  Hygienic  Chemical  Co.,  170  Trustees    v.    Greenough,    105    17.    S. 

Fed.  523.  527,  26  L.  ed.  1157;   Central  E.  Co. 

ZHatha^vay  v.  Eoaeh,  2  W.  &  M.  v.  Pettiis,  113  U.  S.  116,  28  L.  ed. 

63.  915. 

3  The   Starke,  182  Fed.  498;    The  §408.     1  Hathaway    v.    Eoaeh,    2 

Eva  D.  Eose,  C.  C.  A.,  166  Fed.  101.  W.  &  M.   63;    Trinidad  Paving   Co. 

4Eiddle  v.  Manderville,  6  Cranch,  v.  Eobinson,  C.  C.  A.,  52  Fed.  347; 

86,  3  L.  ed.  161.  Sears,  Eoebuck  &  Co.  v.  Pearce,  C. 

6  Trustees   v.    Greenough,    105    U.  C.  A.,  253  Fed.  960. 
S.   527,  26  L.  ed.   1157;    Central  E.  la  Ee  Peterson,  S.  C.  U.  S.,  June 

Go.  V.  Pettus,  113  U.  S.   116,  28  L.  1,  1920. 
ed.  915. 

1992 


§408] 


COSTS   AT  COMMON   LAW 


1993 


The  prevailing  party  is  the  one  in  whose  favor  the  decision 
or  verdict  is  rendered  and  judgment  entered.^ 

"Where  the  State  statute  provided  that  in  certain  cases,  if  the 
plaintitlf  recovered  less  than  a  specified  amount  of  damages  his 
costs  should  not  exceed  his  damages,  it  was  held  that  the  statute 
should  be  applied  by  the  Federal  Courts  after  a  removal.' 

By  statute  when  in  a  District  Court  a  plaintiff  in  an  action 
at  law  originally  brought  there,  or  a  petitioner  in  equity  other 
than  the  United  States,  recovers  less  than  the  sum  or  value  of 
five  hundred  dollars,  exclusive  of  costs,  in  a  case  which  cannot  be 
brought  there  unless  the  amount  in  dispute  exclusive  of  costs 
exceed  said  sum  or  value,  he  shall  not  be  allowed  costs,  and  the 
court  may  in  its  discretion  award  costs  against  him.*  This  stat- 
ute applies  where  by  the  allowance  of  a  counterclaim  the  amount 
recovered  by  the  plaintiff  is  reduced  to  less  than  five  hundred 
dollars.^  It  does  not  apply  to  a  suit  removed  from  a  State  court. ^ 
If  the  amount  recovered  is  less  than  three  thousand,  but  more 
than  five  hundred  dollars,  it  does  not  apply,  although  the  juris- 
dictional amount  is  now  the  former  sum.''^  If  there  was,  when  the 
suit  w^as  brought,  a  reasonable  expectation  of  the  recovery  of 
more  than  five  hundred  dollars,  costs  will  not  be  awarded  against 
the  plaintiff.*  It  has  been  said  that  the  plaintiff  will  not  be 
mulcted  with  costs  under  this  statute,  except  when  facts  arose 


2U.  S.  V.  Minneapolis,  St.  P.  & 
S.  S.  M.  Ry.  Co.,  235  Fed.  951. 

SReichter  v.  Magone,  47  Fed.  192. 
It  has  been  held  that  the  State 
practice  should  be  followed  at  Com- 
mon Law;  that  where  this  awards 
costs  to  ' '  The  successful  party, ' '  the 
definition  of  that  phrase  in  the  State 
Statute  must  be  followed  and  that 
where  the  case  was  dismissed,  but 
defendant  had  paid  a  sum  in  full 
settlement  of  the  claim,  the  com- 
plainant was  the  successful  party 
and  entitled  to  the  costs.  Scatcherd 
V.  Love,  C.  C.  A.,  166  Fed.  53.  For 
the  rule  under  the  practice  at  com- 
mon law  in  Tennessee,  see  Johnson 
V.  Mississippi  &  T.  E.  Co.,  31  Fed. 
551. 


4  U.  S.  R.  S.,  §  968.  For  a  pecu- 
liar case,  see  National  Steamship 
Co.  V.  Tugman,  67  Fed.  16,  This 
applies  to  cases  imder  the  Interstate 
Commerce  Act.  Delaware,  L.  &  W. 
R.  Co.  V.  Lyne,  C.  C.  A.,  193  Fed. 
984. 

6  Hamilton  v.  Baldwin,  41  Fed. 
429. 

6  Field  V.  Schell,  4  Blatchf.  435; 
Ellis  V.  Jarvis,  3  Mason,  457;  Kera- 
ger  V.  Judd,  5  Fed.  27. 

7  Eastman  v.  Sherry,  37  Fed. 
844;  Johnson  v.  Watkins,  40  Fed. 
187. 

8  Gibson  v.  Memphis,  &c.,  R.  Co., 
31  Fed.  553;  McCarthy  v.  American 
Thread  Co.,  143  Fed.  678. 


1994 


COSTS 


[§408 


which  would  have  authorized  the  court  to  dismiss  the  case  as 
not  properly  Avithin  its  jurisdiction.^ 

"If  several  actions  or  processes  are  instituted,  in  a  court  of 
the  United  States  or  one  of  the  Territories,  against  persons  who 
might  legally  be  joined  in  one  action  or  process  touching  the 
matter  in  dispute,  the  party  pursuing  the  same  shall  not  recover, 
on  all  of  the  judgments  therein  which  may  be  rendered  in  his 
favor,  the  costs  of  more  than  one  action  or  process,  unless  special 
cause  for  said  several  actions  or  processes  is  satisfactorily  shown 
on  motion  in  open  court.  "^® 

Where  a  suit  at  law,  equity  or  admiralty  is  dismissed  in  the 
court  of  first  instance  for  want  of  jurisdiction  over  the  person 
of  defendant  or  over  the  subject-matter,  or  for  a  lack  of  tlie 
requisite  difference  of  citizenship,  no  costs  are  allowed,  provided 
that  the  complainant's  plea  does  not  allege  the  jurisdictional 
facts ;  ^^  but  where  in  such  a  case  he  has  averred  facts  which 
would  give  jurisdiction,  costs  may  be  awarded  against  him.^^ 
When  a  case  removed  from  a  State  court  is  remanded  for  want  of 
jurisdiction  in  the  District  Court,  the  right  to  costs  is  secured 
by  the  bond  filed  with  the  petition  for  removal."  When  cases 
were  begun  in  State  courts  and  afterwards  removed,  the  costs 
accrued  in  the  State  court  before  the  removal  have  been  al- 
lowed.^* A  Federal  court  cannot  award  costs,  when  it  dismisses 
an  action  because  the  State  court,  from  which  it  was  removed, 
had  no  jurisdiction.^^ 


9  McCarthy  v.  American  Thread 
Co.,  143  Fed.  678;  siipra,  §  363. 

lOU.  S.  E.  S.,  §977,  Comp.  St. 
§1618. 

11  Burnham  v.  Eangeley,  2  "W.  & 
M.  417;  Pentlarge  v.  Kirby,  20  Fed. 
898;  Eeliance  Lumber  Co.  v.  Eoths- 
child,  127  Fed.  745;  Int.  Wireless 
Tel.  Co.  V.  Fessenden,  131  Fed.  493 ; 
U.  S.  Envelope  Co.  v.  Transo  Paper 
Co.,  229  Fed.  576.  But  see  U.  S. 
V.  Treadwell,  15  Fed.  532;  Cooper 
V.  N.  H.  S.  Co.,  18  Fed.  588. 

12  The  City  of  Florence,  56  Fed. 
236;  Lowe  v.  The  Benjamin,  1  Wall. 
Jr.  187;  Thomas  v.  White,  12  Mass. 
367;  Sawyer  v.  Williams,  72  Fed. 
296. 


13  See  §  3  of  Judiciary  Act  of 
1875,  as  amended  in  1887;  24  St. 
at  L.,  eh.  373;  Phoenix-Buttes  Gold 
Mining  Co.  v.  Winstead,  226  Fed. 
863;  Vaughan  v.  McArthur  Bros. 
Co.,  C.  C.  A.,  227  Fed.  364. 

14  Wolf  V.  Insurance  Co.  (D. 
Mich.)  1  Flip.  377;  Cleaver  v. 
Traders'  Ins.  Co.  (D.  Md.),  40  Fed. 
863.  See  Central  T.  Co.  v.  Central 
Iowa  Ey.  Co.,  38  Fed.  889.  Cmtra 
in  the  Second  Circuit.  Chadbourne 
V.  German  Am.  Ins.  Co.,  31  Fed. 
625;  Clare  v.  National  City  Bank, 
14  Blatchf.  445. 

15  Parks  Co.  v.  City  of  Decatur, 
C.  C.  A.,  138  Fed.  550. 


§  408]  COSTS  AT  COMMON  LAW  1995 

No  costs  were  usuall.y  granted  in  a  case  in  the  Circuit  Court 
where  the  judges  were  divided. ^^ 

The  English  rule  seems  to  be,  that  it  is  beneath  the  dignity  of 
a  sovereign  to  demand  costs,  and  that,  therefore,  when  he  is  suc- 
cessful in  a  suit,  his  counsel  will  waive  all  claim  for  any.^'  In 
the  Federal  District  Courts,  however,  costs  are  awarded  to  the 
United  States  in  cases  where  an  ordinary  litigant  would  be  en- 
titled thereto,  even  when  not  specifically  prayed  in  the  bill.^* 
The  same  rule  prevails  in  the  Supreme  Court ;  ^^  and  there  a 
State  may  also  be  awarded  costs,^®  or  directed  to  paj'  them.^^ 

In  suits  in  the  Court  of  Claims,  or  District  Courts  to  adjust 
claims  against  the  United  States,  costs  cannot  be  allowed  unless 
the  government  puts  in  issue  the  right  of  the  plaintiff  to  recover; 
and  then  only  in  the  discretion  of  the  court. ^^  The  court  has 
power  to  allow  them.^^  Costs  in  such  a  suit  include  only  "what 
is  actually  incurred  for  witnesses  and  summoning  the  same,  and 
fees  paid  to  the  clerk  of  the  court.  "^*  No  costs  are  allowed 
against  the  United  States  in  admiralty  ^^  nor  in  a  suit  to  recover 
a  penalty  or  forfeiture  accruing  under  any  law  providing  for  the 
internal  revenue,  when  the  suit  was  brought  by  the  Government 
on  information  received  from  any  person  other  than  a  collector, 
deputy  collector,  or  inspector  of  internal  revenue,^^  nor  upon  the 
dismissal  of  condemnation  proceedings  instituted  by  them.^''^ 

No  costs  are  awarded  for  or  against  the  United  States  in  the 
Supreme  Court,  or  in  the  Circuit  Courts  of  Appeals,^^  but  a  Cir- 
cuit Court  of  Appeals  has  awarded  costs  of  the  Circuit  Court 
against  them  upon  an  appeal  from  the  decision  of  a  board  of 
appraisers. ^^ 

It  has  been  held  that  costs  cannot  be  taxed  against  the  peti- 

16  Veazie    v.    Williams,    3    Story,  22  24  St.  at  L.  508,  §  15. 

611,  632.  23  U.   S.   V.   Cress,  243  U.  S.   316. 

17  Emperor  of  Austria  v.   Day,   2  24  24  St.  at  L.  508,  §  15, 

Giff.  628;  s.  c,  3  De  G.,  F.  &  J.  217.  26  The  Antelope,  12  Wheaton,  546, 

18  Oregon  &  Cal.  E.  R.  Co.  v.  U.       6  L.  ed.  723. 

S.,  243  U.  S.  549 ;  U.  S.  v.  Southern  26  U.  S.  R.  S.,  §  969. 

Pac.  Ry.  Co.,  56  Fed.  865.  27  Carlisle  v.  Cooper,  64  Fed.  472. 

19  U.    S.    V.    Sanborn,    135    U.  S.  28  S.   C.   Rule  24;    C.  C.   A.   Rule 
271,  34  L.  ed.  112.                                        31, 

20  Missouri   v.   Illinois,   202   U.  S.  29  U.    S.    v.    Davis,    C.    C.    A.,    54 
598,  50  L.  ed.  1160.                                    Fed.  147.     Contra.  Marine  v.  Lyon, 

21  Ibid.  C.  C.  A.,  62  Fed.  153. 


1996 


COSTS 


[§408 


tioners,  upon  an  application  for  the  disbarment  of  an  attor- 
ney ;  ^®  and  that  a  decree  for  costs  against  a  complainant  may  be 
set  aside,  when  the  attorney  had  no  authority  to  appear  for 
him.^^ 

The  Revised  Statutes  provide:  "If  any  attorney,  proctor,  or 
other  person  admitted  to  conduct  causes  in  any  court  of  the 
United  States,  or  of  any  Territory,  appears  to  have  multiplied 
the  proceedings  in  any  cause  before  such  court,  so  as  to  increase 
in  civil  cases  costs  unreasonably  and  vexatiously,  he  shall  be  re- 
quired, by  order  of  the  court,  to  satisfy  any  excess  of  costs  so 
increased. ' '  ^^  This  does  not  authorize  an  increase  of  the  costs 
against  his  client  in  an  action  at  common  law,^^  nor  the  allow- 
ance of  costs  or  counsel  fees  not  authorized  by  other  statutory 
provisions.^*  An  agreement  between  two  parties  to  share  in  the 
payment  of  "the  costs  and  expense"  of  a  suit  against  one  of 
them,  includes  the  costs  taxed  against  him.^^  Where  one  of  sev- 
eral sureties  for  the  same  debt  is  sued  and  judgment  entered 
against  him  for  the  amount  due  with  costs,  he  is  entitled  to  con- 
tribution on  account  of  those  casts  ^^  and  the  expenses  of  the 
litigation  if  his  defence  was  not  frivolous  nor  without  reasonable 
hope  of  success.^'' 

"When  a  suit  for  the  recovery  of  any  penalty  or  forfeiture 
accruing  under  any  law  providing  internal  revenue  is  brought 
upon  information  received  from  any  person  other  than  a  col- 
lector, deputy  collector,  or  inspector  of  internal  revenue,  the 
United  States  shall  not  be  subject  to  any  costs  of  suit."  ^^ 

"When,  in  any  prosecution  commenced  on  account  of  the  seiz- 
ure of  any  vessel,  goods,  wares,  or  merchandise,  made  by  any  col- 
lector or  other  officer,  under  any  act  of  Congress  authorizing  such 
seizure,  judgment  is  rendered  for  the  claimant,  but  it  appears  to 
the  court  that  there  was  reasonable  cause  of  seizure,  the  court 


SQEe    Watt    &    Dohan,    154    Fed. 
678. 

31  McGeorge  v.  Bigstone  Gap  Imp. 
Co.,  88  Fed.  599. 

32  U.  S.  E.  S.,   §  982,  2  Fed.   St. 
Ann.  291,  Pierce  Fed.  Code,  §  7670. 

33  Bone  v.  Walsh  Const.   Co.,  235 
Fed.  901. 

34  See  Motion  Picture  Patents  Co. 
V.  Yankee  Film  Co.,  C.  C.  A.,  201 


Fed.   63,  reversing  192   Fed.  134. 

35  Provident  Chemical  Works  v. 
Hygienic  Chemical  Co.,  170  Fed. 
523. 

36  Toledo  Metal  Wheel  Co.  v. 
Foyer  Bros.  &  Co.,  C.  C.  A.,  223 
Fed.  350. 

37  U.  S.  Fidelity  &  Guarantee  Co. 
v.  Naylor,  237  Fed.  314. 

38  U.  S.  R.  S.  §  969. 


§  408a J  COSTS  IN  CRIMINAL  PROCEEDINGS  1997 

shall  cause  a  proper  certificate  thereof  to  be  entered,  and  the 
claimant  shall  not,  in  such  ease,  be  entitled  to  costs,  nor  shall  the 
person  who  made  the  seizure,  nor  the  prosecutor,  be  liable  to  suit 
or  judgment  on  account  of  such  suit  or  prosecution:  Provided, 
That  the  vessel,  goods,  wares,  or  merchandise  be,  after  judgment, 
forthwith  returned  to  such  claimant  or  his  agent. ' '  ^^ 

"If,  in  any  suit  against  an  officer  or  other  person  executing 
or  aiding  or  assisting  in  the  seizure  of  goods,  under  any  act  pro- 
viding for  or  regulating  the  collection  of  duties  on  imports  or 
tonnage,  the  plaintiff  is  nonsuited,  or  judgment  passed  against 
him,  the  defendant  shall  recover  double  costs."*** 

§  408a.  Costs  in  criminal  proceedings.  By  the  Kevised  Stat- 
utes, "When  judgment  is  rendered  against  the  defendant  in  a 
prosecution  for  any  fine  or  forfeiture  incurred  under  a  statute 
of  the  United  States,  he  shall  be  subject  to  the  payment  of  costs ; 
and  on  every  conviction  for  any  other  offense  not  capital,  the 
court  may,  in  its  discretion,  award  that  the  defendant  shall  pay 
the  costs  of  the  prosecution."  ^ 

"If  any  informer  or  plaintiff  on  a  penal  statute,  to  whom  the 
penalty  or  any  part  thereof,  if  recovered,  is  directed  to  accrue, 
discontinues  his  suit  or  prosecution,  or  is  nonsuited  therein,  or 
if  upon  trial  judgment  is  rendered  in  favor  of  the  defendant,  the 
court  shall  award  to  the  defendant  his  costs,  unless  such  in- 
former or  plaintiff  is  an  officer  of  the  United  States  specially 
authorized  to  commence  such  prosecution,  and  the  court,  at  the 
trial  in  open  court,  certifies  upon  the  record  that  there  was  rea- 
sonable cause  for  commencing  the  same ;  in  which  case  no  costs 
shall  be  adjudged  to  the  defendant."  ^ 

"If  any  informer  on  a  penal  statute,  to  whom  the  penalty 
or  any  part  thereof,  if  recovered,  is  directed  to  accrue,  discon- 
tinues his  suit  or  prosecution,  or  is  nonsuited  therein,  or  if  upon 
trial  judgment  is  rendered  in  favor  of  the  defendant,  such  in- 
former shall  be  liable  alone  to  the  clerk,  marshal,  and  attorney 
for  the  fees  of  such  prosecution,  and  the  court  certifies  that  there 
was  reasonable  cause  for  commencing  the  same;  in  which  case 
the  United  States  shall  be  responsible  for  such  fees."  ^ 

39  U.  S.  R.  S.   §  970.  2  U.  S.  R.  S.  through  §  975,  Comp. 

40  U.  S.  R.  S.  S971.  St.,  8  1616. 

§  408a.     1  U.  S.  R.  S.  §  974,  Comp.  3  U.    S.    R.    S.    §  976,    Comp.    St., 

St.,  §  1615.  §§  1617,  1621. 


1998 


COSTS 


[§409 


It  lias  been  held  that  the  costs  for  which  a  defendant  to  a 
criminal  prosecution  is  charged  do  not  include  those  of  the  pre- 
liminary examination,*  since  the  statutes  direct  that  the  arrest, 
imprisonment  and  bailment  for  trial  shall  be  "at  the  expense  of 
the  United  States.  "^ 

Upon  a  suit  for  the  forfeiture  of  liquors  shipped  without 
proper  labels,  the  costs  taxed  against  the  defendant  were  the 
attorney 's  docket  fee,  the  clerk 's  fees,  and  the  marshal 's  fees  and 
disbursements  including  keepers,  storage,  freight,  railroad  fares, 
hack  fares,  locks,  carpenter's  charge  for  fastening  locks  and 
staples,  besides  the  fees  and  mileage  of  witnesses.^ 

In  a  suit  for  a  penalty  the  Government  was  allowed  besides 
the  taxable  costs  the  disbursements  allowed  by  the  State  stat- 
utesJ 

"When  a  district  attorney  prosecutes  two  or  more  indictments, 
suits,  or  proceedings,  which  should  be  joined,  he  shall  be  paid 
but  one  bill  of  costs  for  all  of  them."  ^ 

§409.  Costs  in  equity.  Courts  of  chancery  in  general  follow 
the  rule  of  the  civil  law,  victus  victori  in  expensis  condemnatus 
est,  and  decree  the  payment  of  costs  by  the  unsuccessful  to  the 
successful  parties  to  a  suit  before  it.^*  It  often  happens,  how- 
ever, that  they  depart  so  far  from  this  rule  as  to  deny  costs  to  the 
successful  party,  and,  in  certain  classes  of  cases,  they  will  even 
compel  him  to  pay  costs  to  those  against  whom  he  obtains  decree.^* 

In  some  cases  the  costs  may  be  apportioned.^^  This  is  often 
done  in  patent  **  and  admiralty  ^*  cases. 


4  IT.  S.  V.  Smith,  240  Fed.  756; 
U.  S.  V.  Briebaeh,  245  Fed.  204. 

6  U.  S.  R.  S.  §  1014,  Comp.  St., 
§  1674. 

6  Williams  v.  U.  S.,  C.  C.  A.,  254 
Fed.  48. 

7U.  S.  V.  Minneapolis,  St.  P.  & 
S.  S.  M.  Ey.  Co.,  2.35  Fed.  951. 

8U.  S.  R.  S.  §980,  Comp.  St., 
§  1621. 

§409.  laWooster  v.  Handy,  2.3 
Fed.  49;  Am.  D.  R.  Co.  v.  Sheldon, 
28  Fed.  217;  Vancouver  v.  Bliss,  11 
Ves.  58;  Staines  v.  Morris,  1  V. 
&  B.  — ;  Millington  v.  Fox,  3  M.  & 
C.    338,    358;    Hunter    v.    Town    of 


Mariboro,  2  W.  &  M.  168;  Hovey 
V.  Stevens,  3  W.  &  M.  17. 

2a  Grattan  v.  Appleton,  3  Story, 
755;  Brooks  v.  Byam,  2  Story,  553; 
Scateherd  v.  Love,  C.  C.  A.,  166 
Fed.  53. 

SaFarwell  v.  Kerr,  28  Fed.  345; 
Lippino  V.  Shaw  C.  Co.,  34  Fed. 
570;  Am.  B.  M.  Co.  v.  Crosman,  57 
Fed.  1029;  Heighington  v.  Grant,  1 
Beav.  230;  Seton  on  Decrees  (4th 
ed.),  vol.  1,  p.  129;  Tefft  v.  Stern, 
C.  C.  A.,  74  Fed.  755;  Davis  v. 
Parkman,  C.  C.  A.,  71  Fed.  961; 
Eeaubert  v.  Appleton,  C.  C.  A.,  67 
Fed.   917;    U.   S.   Sugar   Refinery   v. 


409] 


COSTS  IX    EQUITY 


1999 


By  the  Revised  Statutes,  when  in  a  District  Court,  "a  peti- 
tioner in  equity,  other  than  in  the  United  States,  recovers  less 
than  the  sum  or  value  of  five  liundred  dollars  exclusive  of  costs 
in  a  ease  which  cannot  be  brought  uidess  the  amount  in  dispute, 
exclusive  of  costs,  exceeds  said  sum  or  value,"  he  is  not  allowed 
costs  but  at  the  discretion  of  the  court  he  may  be  obliged  to  pay 
them.^ 

Where  the  Circuit  Court  of  Appeals  directed  that  the  costs  in 
the  court,  both  below  and  above,  be  liorne  equally  between  the 
plaintiffs  and  the  defendants,  it  was  held  that  the  expenses  of  a 
receivership  were  not  included  in  the  costs  to  be  divided.'  Where 
the  line  of  a  railroad  company  had  been  operated  by  a  receiver 
of  the  corporation  in  possession  thereof,  it  was  held  liable  for 
a  certain  proportion  of  the  costs  of  the  receivei*ship,  although  not 
a  party  to  the  suit  in  which  the  receiver  was  appointed,  when  it 
appeared  simply  for  the  purpose  of  contesting  its  liability  for 
such  costs.8  AVhere  a  judgment  debtor  had  not  been  the  cause 
of  delay  in  extended  supplementary  proceedings  before  a  master; 
it  was  held  that  the  expenses  of  a  controversy  maintained  by  his 
debtors  to  protect  their  individual  interests  should  not  be  taxed 
against  him,  but  that  he  was  only  liable  for  a  portion  of  the  costs 
with  necessary  disbursements  in  serving  papers  on  him ;  all  other 
costs  and  dislmrsements  l)eing  chargeable  to  his  debtors,  whose 
obligations  the  creditor  sought  to  reach  in  the  proceedings.^ 

It  has  been  said:  that  under  no  circumstances,  will  a  eourt  dis- 
miss a  plaintiff's  bill  and  award  him  costs  against  a  defendant, ^^ 
although  it  might  then  allow  the  latter  costs  out  of  a  finid  in 
court.^^     If  a  plaintiff  begins  or  continues  a  suit  after  he  has 


Providence  S.  &  G.  P.  Co.,  C.  C.  A., 
62  Fed.  375.  As  to  apportionment 
of  costs  against  defendants,  see 
Vrooman  v.  Penliollow,  C.  C.  A.,  222 
Fed.  894,  896. 

4a/,i/rfl,    S410. 

6^  Infra,  §411. 

6U.  S.  R.  G.  §968,  Comp.  St., 
§  1609. 

7  Kell  V.  Trenchard,  C.  C.  A.,  146 
Fed.  245. 

8  Pennsylvania  Co.  for  Insurance, 
etc.    V.    Jacksonville,    T.    &    K.    St. 


Ry.  Co.,  C.  C.  A.,  66  Fed.  421;  Tesla 
El.  Co.  V.  Scott,  101  Fed.  524. 

9  Be  Shepherd,  154  Fed.  957. 

10  Barnes  v.  Oinally,  4  McLean, 
576;  Hobbs  v.  McLean,  117  U.  S. 
567,  29  L.  ed.  940.  But  see  Fech- 
heinier  v.  Baum,  43  Fed.  719,  730. 
and   infra,   §  421. 

11  Fechheimer  v.  Baum,  43  Fed. 
719,  734;  infra,  §421.  But  see 
Hobbs  V.  McLean.  117  U.  S.  567.  29 
L.  ed.  940, 


2000 


COSTS 


[§409 


received  formal  notice  of  a  full  and  unconditional  offer  of  all 
that  he  is  entitled  to,  he  may  be  denied  costs,  not  only  of  all  the 
proceedings  taken  by  him  after  such  an  offer,^^  }j^^  ^Iso  of  the 
whole  suit.13  This  principle  applies  to  bills  for  an  accounting; 
where,  although  on  account  of  the  uncertain  state  of  the  account 
the  defendant  may  not  be  obliged  to  make  a  tender  of  the  balance 
due  from  him,  and  so  omits  it,  yet  if  he  has  shown  a  willingness 
to  account,  the  court  may  relieve  him  from  paying  costs.^*  If 
a  plaintiff  charge  fraud  which  he  fails  to  prove,  although  he  es- 
tablishes his  case  on  other  grounds,^^  or  if  he  incurs  needless  ex- 
pense,^^  in  some  cases,  if  he  claims  relief  more  extensive  than 
that  to  which  he  is  entitled,^'''  or  if,  on  account  of  public  policy 
or  otherwise,  he  is  allowed  to  obtain  relief  in  a  matter  wherein  he 
himself  acted  unlawfully  or  dishonorably,^*  or  if  he  have  been 
guilty  of  laches,^^  which  do  not  bar  his  claim  entirely, — he  will 
be  denied  costs. 

A  defendant  will  also  be  denied  costs  when  successful  under 


l2Mmington  v.  Fox,  3  M.  &  C. 
338,  352;  Loveridge  v.  Larned,  7 
Fed.  294;  Calkins  v.  Bertrand,  8 
Fed.  755. 

13Millington  v.  Fox,  3  M.  &  C. 
338,  352;  Lowell  Mfg.  Co.  v.  Whit- 
tal,  71  Fed.  515. 

14  Parrot  v.  Treby,  Prec.  in  Ch. 
254;  Bennett  v.  Attkins,  1  Y.  &  C. 
247;  Ashburnham  v.  Thompson,  13 
Ves.  402.  But  see  Daniell's  Ch.  Pr. 
(5th  Am.  ed.),  1396,  1397. 

16  Wright  V.  Howard,  1  Sim.  &  S. 
190;  Scott  V.  Dunbar,  1  Molloy, 
442.  See  Fisher  v.  Boody,  1  Curt. 
206,  223. 

16  Brunswick-Balke-Collender  Co. 
V.  Klump,  131  Fed.  93;  where  plain- 
tiff was  denied  all  costs  and  dis- 
bursements after  the  time  when  the 
defendant  offered  to  consent  to  a 
decree.  Where  the  court  of  orig- 
inal jurisdiction  denied  the  com- 
plainant 's  application  for  a  manda- 
tory   injunction    to    compel    the    re- 


moval of  a  dam,  but  offered  him  the 
right  to  prove  and  recover  the  dam- 
ages, which  he  refused  to  do;  he 
took  an  appeal,  and  upon  the  appeal 
the  denial  of  the  injunction  was  ap- 
proved, but  the  decree  was  reversed 
in  order  that  he  might  recover  his 
damages;  he  was  disallowed  the 
costs  incurred  prior  to  the  time 
when,  after  the  filing  of  the  man- 
date, he  availed  himself  of  this 
right,  and  he  was  also  disallowed  in- 
terest upon  his  damages.  Andrus 
V.  Berkshire  Power  Co.,  169  Fed. 
732;  s.  c,  107  Fed.  1016.  But  see 
Inhabitants  of  N.  B.  Tp.  v.  Halsey, 
117  U.  S.  336,  29  L.  ed.  904. 

17  Baldwin  v.  Ely,  9  How.  580. 
But  see  Consol.  Cal.  &  Va.  Min.  Co. 
V.  Baker,  131  Fed.  989. 

18  Debenham  v.  Ox,  1  Ves.  Sen. 
276;  Davis  v.  Symonds,  1  Cox  Eq. 
402. 

19  Anon.,  2  Atk.  14;  Lee  v. 
Brown,  4  Ves.  362. 


409] 


COSTS  IN   EQl'ITY 


2001 


similar  eireumstanees ;  ^^  for  instance,  when  the  plaintiff's  bill  is 
clearly  bad  and  he  answers  instead  of  moving  to  disraiss.^^ 

Instances  where  costs  have  not  been  given  to  a  successful  party, 
because  the  situation  of  his  adversary  appealed  to  the  sympathy 
of  the  court,  were:  where  the  decision  of  the  cases  involved  the 
decision  of  difficult  and  doubtful  questions  of  law,^^  especially  in 
suits  brought  for  the  specific  performance  of  contracts  affecting 
the  sale  of  land.^^  Where  the  court  enforced  a  contract  made 
upon  a  very  inadequate  consideration. ^^  Where  the  defendant's 
conduct  had  been  grossh^  unfair  and  unequitable.'^^  Where  the 
case  was  dismissed  for  want  of  prosecution  and  the  parties  had 
been  guilty  of  equal  laches,^^  and  other  cases  of  peculiar  hard- 
ship.2'''  Where  the  defendant  claims  equitable  relief  by  counter- 
claim or  otherwise  and  fails  to  obtain  it,  he  is  liable  for  costs  as 
if  he  were  a  complainant.^* 

A  change  of  the  law  by  a  ruling  of  the  Supreme  Court  subse- 
quent to  the  filing  of  the  bill  has  been  held  to  be  no  ground  for 
refusing  the  defendant  costs. ^^ 

The  successful  party  to  a  suit  may  also  be  obliged  to  paj'  costs 
to  an  opponent  who  has  not  acted  unconscieutiously,  in  three 
classes  of  cases :  when  the  successful  party  has  acted  uncon- 
scieutiously in  the  suit  or  in  the  matters  which  gave  rise  to  it ;  '• 


SOAtty.  Gen.  v.  Brewers'  Co.,  1 
P.  Wms.  376;  Bunker  v.  Stevens, 
26  Fed.  245. 

21  Brooks  V.  Byam,  2  Story,  .55.3 ; 
Harland  v.  Bankers'  &  M.  Tel.  Co., 
32  Fed.  305.  Marthinson  v.  Kiivg, 
C.  C.  A.,  150  Fed.  48.  Where  a  bill 
filed  by  trustees  was  dismissed  upon 
appeal  for  failure  to  plead  the  ju- 
risdietional  facts  to  which  no  objec- 
tion had  been  made,  it  was  held 
that  the  costs  should  be  taxed 
against  the  complainants  as  trus- 
tees only  and  not  against  them  indi- 
vidually. Tug  R.  C.  &  S.  Co.  V. 
Brigel,  C.  C.  A.,  70  Fed.  647. 

22  Grattan  v.  Appleton,  3  Story, 
755;  Rose  v.  Calland,  5  Ves.  186; 
Huff  V.  Bidwcll,  C.  C.  A.,  218 
Fed.  6. 

23  Rose    V.    Calland,    5    Ves.    186; 


White    V.    Foljambe,    11    Ves.    337; 
Wilcox  V.  Bellaers,  T.  &  R.  491. 
24Burrowes  v.  Lock,  10  Ves.  470. 

25  Hiner  v.  C.  G.  Aldrich  Co.,  255 
Fed.  785. 

26  E.  G.  Staude  Mfg.  Co.  v.  La 
Bombardi,  C.  C.  A.,  243  Fed.  362. 

27Lillia  v.  Airey,  1  Ves.  Jr.  277; 
Shales  v.  Barrington,  1  P.  Wms. 
481 ;  Drybutter  v.  Bartolomew,  2 
P.  Wms.  127. 

28  Eastern  Oregon  Land  Co.  v. 
Deschutes  R.  Co.,  C.  C.  A.,  246  Fed. 
400. 

29  Fargo  v.  South  Eastern  Ry. 
Co.,  28  Fed.  906. 

30  Wright  v.  Howard,  1  Sim.  &  S. 
190;  Dowse  v.  Hammond,  C.  C.  A., 
130  Fed.  103.  For  example,  where 
the  complainant  obtains  only  a 
small   part    of    the   relief    which   he 


2002 


COSTS 


[§409 


when  a  defendant  has  been  necessarily  made  a  party  to  a  suit  in 
which  he  has  no  direct  personal  interest, — for  example,  an  heir- 
at-law,  who  is  a  passive  defendant  to  a  suit  to  prove  a  will ;  '^  and 
when  a  bill  is  filed  to  redeem  a  pledge  or  relieve  an  estate  from 
the  burden  of  a  mortgage  or  other  incumbrance.'^ 

Where  in  a  suit  against  a  homestead  settler  in  aid  of  an  adverse 
claim  to  prevent  the  issue  of  a  patent,  neither  party  establishes 
the  right  to  the  land,  neither  is  allowed  costs.'' 

In  suits  of  interpleader  against  claimants  to  life  insurance,  the 
complainant  can  only  receive  the  ' '  actual  court  costs. ' '  '* 

The  Equity  Rules  provide :  ' '  Where  no  account,  payment,  con- 
veyance, or  other  direct  relief  is  sought  against  a  party  to  a  suit, 
not  being  an  infant,  the  party,  upon  service  of  the  subpoena  upon 
him,  need  not  appear  and  answer  the  bill,  unless  the  plaintiff 
specially  requires  him  to  do  so  by  the  prayer ;  but  he  may  ap- 
pear and  answer  at  his  option ;  and  if  he  does  not  appear  and 
answer  he  shall  be  bound  b^^  all  the  proceedings  in  the  cause.  If 
the  plaintiff  shall  require  him  to  appear  and  answer  he  shall  be 
entitled  to  the  costs  of  all  the  proceedings  against  him  unless  the 
court  shall  otherwise  direct. ' '  '^ 

Costs  for  an  infraction  of  the  rules  concerning  the  contents  of 
transcripts  upon  appeals  may  be  imposed  upon  the  offending  par- 
ties or  solicitors.'^ 

In  cases  wliere  the  finally  successful  part}-  is  obliged  without 
his  fault  to  pay  costs  to  one  of  the  others,  if  the  suit  was  made 
necessary  by  the  misconduct  of  one  of  the  defendants,  the  latter 


prayed  and  the  greater  part  of  the 
expense  of  the  litigation  was  caused 
by  his  unsuccessful  claims.  Thom- 
son-Houston El.  Co.  V.  Elmira  &  H. 
E.  Co.,  71  Fed.  886.  See  also  Ecau- 
bert  V.  Appleton,  C.  C.  A.,  67  Fed. 
917.  Where  it  was  held  that  a 
party  had  improperly  filed  a  cross- 
bill, but  relief  was  given  him  upon 
the  theory  that  his  cross-bill  should 
be  considered  as  a  petition  of  inter- 
vention, he  wag  required  to  pay  the 
costs  upon  the  cross-bill  in  the  orig- 
inal court  and  the  court  of  review. 
Gregory  v.  Pyke,  67  Fed.  837.     The 


cost  of  taking  testimony  as  to  ir- 
relevant matter  may  be  taxed 
against  the  party  who  takes  the 
same.  Terry  v.  Naylor,  125  Fed. 
804. 

31  Crew  v.  Joliff,  Free,  in  Ch.  93 ; 
Luxton  V.  Stephens,  3  P.  Wms,  373. 

32Taner  v.  Ivie,  2  Ves.  Sen.  466, 
468. 


33  Hinchman    v. 
A.,  202  Fed.  624. 

34  39   St.   at  L. 
157. 

36  Eq.  Rule  40. 
36  Eq.  Rule  76. 


Eipinsky,    C.    C. 
929;    supra,   §§  5, 


Hio] 


PATENT,   COPYRICIIT   AND  TKADE-MAKK    CASES 


2U03 


is  obliged  to  repay  the  amount  of  those  costs  to  the  winner.^' 
Thus,  the  costs  paid  out  of  the  fund  to  the  plaintiff  in  a  suit  of 
interpleader  are  usually  decreed  to  be  repaid  by  the  unsuccessful 
defendant.^' 

"By  a  demand  served  ten  days  before  the  trial,  either  i)arly 
may  call  on  the  other  to  admit  in  writing  the  execution  or  gemi- 
ineness  of  any  document,  letter,  or  other  writing,  saving  all  just 
exceptions;  and  if  such  admission  be  not  made  within  five  days 
after  such  service,  the  costs  of  proving  the  document,  letter  or 
writing  shall  be  paid  by  the  party  refusing  or  neglecting  to  make 
such  admission,  unless  at  the  trial  the  courts  shall  find  that  the 
refusal  or  neglect  was  reasonable. "  ^^ 

§  410.  Costs  in  patent,  copyright  and  trade-mark  cases. 
Costs  in  actions  at  common  law  founded  upon  patents,  copy- 
i-ights,  and  trade-marks  are  regulated  by  the  rules  that  ai)ply  in 
other  cases.i  Where  the  plaintiff  recovers  damages  exceeding 
$500.00  he  may  tax  his  costs  although  he  sued  upon  two  patents 
and  failed  as  to  "one  of  them.^  Co.sts  are  usually  included  in  a 
decree  for  a  perpetual  injunction  against  the  infringement  of  a 
patent,^  or  trade-mark,*  when  the  infringement  was  made  or 
threatened  before  the  suit  was  brought,  although  it  was  previ- 
ously discontinued,  or  even  when  it  was  never  committed ;  ^  and 
in  the  case  of  a  trade-mark,  when  no  demand  to  cease  using 
it  was  previously  made.^  All  of  several  joint  wrongdoers  are 
usually  mulcted,  unless  one  of  them  has  participated  to  a  trivial 
extent  only  or  there  are  eciuitable  circumstances  in  his  favor."'' 

Where  the  complainant  was  entitled  to  an  injunction  at  the 
time  the  bill  was  filed  but  he  is  denied  one  because  of  the  sub- 


STMartinins  v.  Hclmuth,  2  V.  & 
B.  412,  note.  See  Brodic  v.  St. 
Paul,  1  Ves.  Jr.  :i26;  Badeau  v. 
Rogers,  2  Paige  Ch.  (N.  Y.)  209. 

38Martinius  v.  Helmuth,  2  V.  & 
B.  412,  note;  Badeau  v.  Eogers,  2 
Paige  Ch.  (N.  Y.^  209.  But  see 
Ferguson  v.  Dent,  46  Fed.  88 ;  infra, 
§422. 

39  Eq.  Rule  58,  see  Wagner  v.  Mec- 
cano, C.  C.  A.,  246  Fed.  603,  where 
$470.26  was  allowed  for  the  costs  of 
proving  certain  documentii  by  two 
depositions. 


§  410.  1  Sears,  Roebuck  &  Co.  v. 
Pcarce,  C.  C.  A.,  25.3  Fed.  960. 

2  Sears,  Roebuck  &  Co.  v.  Pearcc. 
C.  C.  A.,  2.'j3  Fed.  960. 

3  Vrooman  v.  Penhollow,  C.  C.  A.. 
186  Fed.  49.5;  Luten  v.  Rhoads  & 
Knisely,  194  Fed.  169. 

4  Sawyer  v.   Kellogg,  9  Fed.   601. 
6  Luten  v.  Rhoads  &  Knisely,  194 

Fed.  169. 

6  Sawyer  v.   Kellogg,  9  Fed.   601. 

7  Vrooman  v.  Penhollow,  C.  C.  A., 
186  Fed.  495. 


2004 


COSTS 


[§410 


sequent  expiration  of  the  patent,  he  is  entitled  to  costs  even  if 
he  recovers  no  damages.* 

Where  a  bill  to  enjoin  the  infringement  of  a  patent  by  a  cor- 
poration and  its  officers  was  dismissed  as  against  the  officers,  but 
sustained  against  the  company,  it  was  held  that  the  individual 
defendants  must  pay  their  own  costs  and  such  as  were  incurred 
in  bringing  them  into  the  suit,  but  not  a  docket  fee.^ 

Tlie  allowance  of  costs  upon  an  accounting  of  profits  by  an 
infringement  are  not  governed  by  fixed  rules  but  depend  upon 
the  circumstances  of  each  case.^®  This  is  so  when  upon  a  refer- 
ence the  master  reports  in  favor  of  the  plaintiff  for  nominal 
damages  of  the  court. ^^  Where  the  complainant  is  awarded  only 
nominal  damages  and  there  are  no  special  equities  in  his  favor, 
he  may  be  taxed  with  the  costs  of  the  accounting  including  those 
of  the  hearing  upon  the  exceptions  to  the  report.^^  "Where  the 
master  awarded  to  the  complainant  substantial  damages,  and 
the  decree  confirmed  the  award  with  the  costs  and  disbursements 
of  the  accounting,  but  on  appeal  the  damages  were  reduced  to  a 
nominal  sum  because  they  could  not  be  computed  with  reasonable 
accuracy,  the  mandate  allowing  the  costs  of  appeal,  but  being 
silent  as  to  the  costs  below ;  the  trial  court  in  entering  the  decree 
upon  the  mandate  refused  to  change  its  prior  decree  as  to  the 
costs.  13  Where,  upon  an  appeal  by  both  parties,  a  second  ac- 
counting was  directed  upon  which  the  complainant  failed  to  im- 
prove his  position  and  the  amount  awarded  was  substantially  the 
same  as  before,  the  costs  subsequent  to  the  decree,  were  assessed 
against  both  parties.^* 


•  Am.  Caramel  Co.  v.  White,  C. 
C.  A.,  234  Fed.  328. 

SNationaJ  F.  B.  &  P.  Co.  v. 
Dayton  P.  N.  Co.,  97  Fed.  331,  333. 
See  also  Consolidated  B.  S.  Co.  v. 
Chicago,  P.  &  St.  L.  Ey.  Co.,  69  Fed. 
412. 

10  Individual  Drinking  Cup  Co.  v. 
Public  Service  Cup  Co.,  C.  C.  A., 
250  Fed.  620;  Vrooman  v.  Penhol- 
low,  C.  C.  A.,  222  Fed.  894,  900. 

11  Calkins  v.  Bcrtrand,  8  Fed. 
755;  Everest  v.  Buffalo  Lubricating 
Oil  Co.,  31  Fed.  742;  Hill  v.  Smith, 


32  Fed.  753;  Kirk  v.  DuBois,  46 
Fed.  486;  Ommen  v.  Talcott,  175 
Fed.  261. 

12  Dowagiac  Mfg.  Co.  v.  Minne- 
sota Moline  Plow  Co.  et  al.,  183 
Fed.  314;  Delaware  L.  &  W.  E.  Co. 
v.  Lyne,  C.  C.  A.,  193  Fed.  984. 

13  Westinghouse  Air  Brake  Co.  v. 
New  York  Air  Brake  Co.,  140  Fed. 
144. 

14  Westinghouse  El.  &  Mfg.  Co. 
V.  Wagner  E.  Mfg.  Co.,  248  Fed. 
508,  513. 


410] 


PATENT,   COPYRIGHT   AND  TKADE-MARK   CASES 


2005 


In  suits  founded  upon  letters-patent  for  inventions,  when  the 
patentee  has  claimed  in  his  specifications  that  he  was  the  original 
inventor  of  more  tlian  he  did  first  invent,  he  cannot  recover 
costs  unless  he  has  filed  a  proper  disclaimer  in  the  Patent  Office 
before  the  commencement  of  the  suit.^^  It  has  been  held  that 
this  statutory  rule  does  not  applj'  to  the  costs  of  an  appeal. ^^ 
Where  the  suit  for  an  infringement  is  dismissed  for  want  of  juris- 
diction no  costs  can  be  taxed. ^' 

Where,  in  a  suit  for  an  infringement,  the  complainant  re- 
covers some,  but  not  all,  of  several  patents,^^  or  claims  of  copj'- 
rights,^^  or  of  claims  under  a  single  patent,^®  the  costs  may 
be  equitably  proportioned.  The  successful  party  was  allowed 
to  recover  onl}^  two-thirds  of  the  costs  where  one  out  of  three 
patents  was  sustained.^^  But  where  the  defendant  succeeds  upon 
one  defense  to  the  bill,  he  is  not  precluded  from  recovering  costs 
because  he  has  pleaded  other  defenses  which  were  without 
merit.^^  Where  the  party  extends  the  cross-examination  of  an 
adversary's  witnesses  beyond  the  legitimate  limits,  the  court 
may  reduce  the  costs  allowed  him  for  taking  testimony  or  de- 
positions ^^  and  apportion  the  costs.^*     Where  the  complainant 


16  U.  S.  E.  S.,  §4922;  Proctor  v. 
Brill,  16  Fed.  791;  General  Electric 
Co.  V.  Crouse-Hinds  Electric  Co., 
147  Fed.  718;  Novelty  Glass  Mfg. 
Co.  V.  Brookfield,  C.  C.  A.,  172  Fed. 
221.  The  statute  does  not  entitle 
the  defendant  to  recover  costs  in 
such  a  case,  nor  does  it  deprive  the 
jdaintifif  of  his  right  to  an  account 
of  profits  and  damages.  Novelty 
Glass  Mfg.  Co.  V.  Brookfield,  C.  C. 
A.,  172  Fed.  221.     See  §  277a  supra. 

16Kahn  v.  Starrels,  C.  0.  A.,  1.36 
Fed.  597;  Johnson  v.  Foos  Mfg. 
Co.,  C.  C.  A.,  141  Fed.  7.3.  Contra, 
Novelty  Glass  Mfg.  Co.  v.  Brook- 
field, C.  C.  A.,  172  Fed.  221. 

17  Parker  v.  Stebler,  C.  C.  A.,  241 
Fed.  589;  Christensen  v.  Gen.  El. 
Co.,  248  Fed.  284. 

18  Draper  Co.  v.  Am.  Loom  Co., 
161  Fed.  728;  Eoth  v.  Harris,  C.  C. 
A.,  168  Fed.  279. 

Fed.  Prac.  Vol.  11—56 


19  M.  Witmark  &  Sons  v.  Stand- 
ard  Music   EoU   Co.,   221   Fed.   376. 

20Ide  V.  Trorlicht,  D.  &  E.  Car- 
pet Co.,  C.  C.  A.,  115  Fed.  137,  150, 
and  citations;  Am.  Bank  Protection 
Co.  V.  El.  P.  Co.,  181  Fed.  350. 

21  Tesla  El.  Co.  v.  Scott,  101  Fed. 
524.  See  Marthinson  v.  King,  C.  C. 
A.,  150  Fed.  48.  Where  a  com- 
plainant alleged  infringement  by  a 
number  of  devices  made  by  defend- 
ant, but  succeeded  as  to  one  only, 
a  division  of  the  costs  was  made 
proportionate  to  the  final  result. 
Perkins  Electric  S.  Mfg.  Co.  v.  Yost 
E.  Mfg.  Co.,  189  Fed.  625;  Gold 
V.  Gold,  C.  C.  A.,  187  Fed.  273. 

22  U.  S.  R.  S.,  §  4915,  5  Fed.  St. 
Ann.  507,  Pierces  Fed.  Code,  §  8780. 

23  National  Cash  Register  Co.  v. 
Gratigny,  C.  C.  A.,  213  Fed.  463. 

24Eoyal  Metal  Mfg.  Co.  v.  Art 
Metal  Works,  C.  C.  A.,  130  Fed.  778. 


2006  COSTS  [§411 

recovered  from  the  nianufaeturer  full  damages  for  all  sales,  he 
was  not  allowed  costs  in  suits  against  customers  of  the  manufac- 
turer brought  while  the  suit  against  the  manufacturer  was 
pcnding.^^ 

In  suits  for  unfair  competition  where  the  disputed  questions 
were  honest  trade  differences  and  there  are  no  damages,  the  com- 
plainants will  not  be  allowed  costs  although  they  sueceed.^^  lu 
suits  for  breach  of  copyright,  where  there  are  striking  similarities 
between  the  two  works,  the  complainant  may  not  be  obliged  to 
pay  costs  upon  the  dismissal  of  his  bill.^''^ 

In  suits  to  compel  the  issue  of  patents,  all  costs  must  be  paid 
l)y  the  complainant,  whether  the  final  decision  is  in  his  favor 
or  not ;  28  unless  an  individual  opposes  the  suit,  in  which  case, 
if  the  opposition  is  unsuccessful,  costs  may  be  taxed  against 
such  opponent.^^ 

§  411.  Costs  in  admiralty.  In  admiralty  causes  costs  are 
subject  to  the  same  rules  as  in  equity  causes  in  the  Federal 
courts.^ 

"When  proceedings  are  had  before  a  court  of  the  United 
States  or  of  the  Territories,  on  several  libels  against  any  vessel 
and  cargo,  which  might  legally  be  joined  in  one  libel,  there  shall 
not  be  allowed  thereon  more  costs  than  on  one  libel,  unless  spe- 
cial cause  for  libeling  the  vessel  and  cargo  separately  is  satis- 
factorily shown  on  motion  in  open  court.  And  in  proceedings  on 
several  libels  or  informations  against  any  cargo,  or  parts  of 
cargo,  or  merchandise  seized  as  forfeited  for  the  same  cause, 
there  shall  not  be  allowed  more  costs  than  would  be  lawful  on 
one  libel  or  information,  whatever  may  be  the  number  of  owners 
or  consignees  therein  concerned.  But  allowance  may  be  made 
on  one  libel  or  information  for  the  costs  incidental  to  several 
claims. ' '  ^ 

"When  judgment  is  rendered  in  favor  of  the  claimant  of  any 
vessel  or  other  property  seized  on  behalf  of  the  United  States, 

25  Pomona   Fruit   Growers'    Exch.  29  Ibid. 

V.  Stebler,  C.  C.  A.,  241  Fed.  123.  §  411.     1  The     Starke,     182     Fed. 

26  Champion  Spark  Plug  Co.  v.  498 ;  The  Eva  D.  Rose,  C.  C.  A.,  166 
A.  R.  Hosier  &  Co.,  233  Fed.  112.  Fed.  101. 

27  Vernon  v.  Sam  S.  &  Lee  Shu-  2  U.  S.  R.  S.  §978,  Comp.  St., 
bert,  220  Fed.  694.  §  1619. 

28  Butler  v.  Shaw,  21  Fed.  321. 


§411] 


COSTS  IN  ADMIRALTY 


2007 


and  libeled  or  informed  against  as  forfeited  under  any  law 
thereof,  he  shall  be  entitled  to  possession  of  the  same  when  his 
own  costs  are  paid."* 

The  prevailing  party  is  usually  entitled  to  costs;*  but,  in  the 
discretion  of  the  court,  they  may  be  allowed  him,  withheld  from 
him,  or  divided,  according  to  the  equities  of  the  case.^  Where 
damages  are  apportioned,  costs  are  likewise  apportioned,  each 
])arty  taxing  a  full  bill  of  costs,  and  the  part}'  whose  bill  of  costs 
is  the  largest,  usually  recovering  half  the  difference  between  the 
two  bills  as  taxcd.^  It  is  so  held  in  the  Second  Circuit;  where 
the  libellant's  vessel  alone  has  suffered  damage,  as  well  as  where 
])oth  vessels  have  been  damagedJ  But  in  such  a  case  the  libel- 
lant  will  be  allowed  the  full  costs  and  disbursements  of  a  refer- 
ence made  necessary  by  the  act  of  the  defendant.^  Where  a  libel- 
lant  recovers  part  of  his  damages  against  one  vessel  and  a  part 
against  anothei-,  he  recovers  costs  against  the  vessels  in  similar 
proportions.^  Wlun-e  the  claimant  of  a  vessel  libelled  brings  in 
a  third  party,  which  is  held  to  be  solely  in  fault,^°  the  claimant 
may  recover  its  costs  from  the  libellant.^^  The  same  rule  applies 
when  the  respondents  to  a  suit  n?  personam  for  a  collision  bring 
in  a  boat  owned  by  strangers  which  is  adjudged  to  be  solely  in 
fault. ^2  Where  the  libel  alleges  that  one  or  the  other  of  several 
persons  is  liable  and  these  respondents  contest  the  question  of 


SU.  S.  K.  S.  §979,  Comi).  St., 
§  1620. 

4  The  Starke,  182  Fed.  498;  The 
Eva  D.  Kose,  C.  C.  A.,  166  Fed.  101. 

6  Ibid.  The  Scotland,  118  U.  S. 
507,  518,  :W  L.  ed.  153,  155,  a  i)ro- 
f-eeding  for  the  limitation  of  lia- 
bility. 

6  The  America,  92  U.  S.  4^2,  2:? 
L.  ed.  724;  The  Gladiator,  223  Fed. 
381. 

7  The  Warren  (Blatehford,  J.), 
25  Fed.  782.  Contra,  The  Hercules, 
20  Fed.  205.  See  also  The  Pennsyl- 
vania, 15  Fed.  814,  vi^here  a  different 
method  of  apportioning  costs  was 
adopted. 

8  The  Doris  EckhofT,  41  Fed.  156, 
159. 


9  The  Alabama  and  Gamecock,  92 
T'.  S.  695,  23  L.  ed.  763. 

10  Tiie  Starke,  182  Fed.  498. 

11  O  'Keefe  v.  Staple  Coal  Co.,  201 
Fed.  144,  where  the  libellauts  were 
allowed  to  tax  against  tlie  party 
lield  to  be  in  fault  all  tlieir  costs 
except  the  clerk's  and  marshall's 
fees  on  tlie  process  sued  against  the 
original  respondents  and  such  re- 
spondents were  allowed  to  tax  proc- 
tors' fees  against  the  libellants  and 
the  remaining  fees  against  the  guil- 
ty party. 

12  The  Eose  Reichert,  242  Fed. 
170. 


2008  COSTS  [§  411 

liability  with  each  other  those  exonerated  may  recover  costs  from 
those  held  liable.^^ 

It  has  been  held  that,  when  the  costs  in  admiralty  are  divided, 
the  respondent  must  contribute  to  the  payment  of  the  libellant's 
proctor's  fees;  but  that  the  libellant  need  not  pay  any  part  of 
the  respondent's  proctor's  fee.^* 

The  claimant  of  a  libelled  vessel,  who  for  his  own  protection 
brings  in  a  third  party  by  petition,  where  upon  a  hearing  both 
the  libel  and  petition  are  dismissed,  is  liable  for  the  taxable 
costs  and  expenses  of  such  new  party's  defense.^^ 

"Where  the  party  who  succeeds  has  acted  unconscionably  costs 
may  be  apportioned.^^  If  the  defendant  offers  to  allow  the  dam- 
ages to  be  assessed  at  a  certain  sum,  and  the  referee's  report  is 
for  no  greater  sum,  the  libellant  will  be  denied  costs  of  a  ref- 
erence.^''^ In  a  decree  for  salvage  four-fifths  of  the  costs  were 
taxed  against  the  successful  claimant  when  he  had  libelled  the 
vessel  and  cargo  for  more  than  fifteen  times  what  he  had  de- 
manded for  his  services  and  he  was  awarded  less  than  his  original 
demand.^* 

But  salvagors  do  not  lose  their  right  to  costs  because  they 
filed  their  libel  and  put  the  marshal  in  possession  before  attempt- 
ing to  ascertain  the  owners  or  negotiate  with  the  insurers  of  the 
cargo  as  requested,^® 

A  libellant  who  recovers  on  onl}^  one  of  two  claims  to  collect 
which  he  sues,  however,  may  be  allowed  costs  where  he  estab- 
lishes a  prima  facie  case  upon  both.^** 

13  The  Louise  Rugge,  C.  C.  A.,  239  Fed.  76.  It  is  not  necessary  in  the 
Fed.  458.  deposit  to  include  the  docket  fee  or 

14  The  L.  F.  Munson,  127  Fed.  fees  for  depositors.  The  Cloverburn, 
767.  148  Fed.  139.     If  upon  the  trial  the 

15  The  Charles  Tiberghein,  148  offer  is  found  to  have  been  insuffi- 
Fed.  1016.  cient,   the   respondent  is  entitled  to 

16  The  D.  L.  Co.  No.  xx,  205  Fed.  tax  and  such  fees,  together  with  the 
188.  taxable   disbursements  and  the  tak- 

17  S.  D.  N.  Y.  Adm.  Rule  30.  ing  of  testimony  used  on  the  trial, 
See  infra,  §  577.  A  claimant  who  even  if  such  expense  was  incurred 
makes  a  tender  before  suit,  but  fails  before  the  offer.     Ibid. 

to    deposit   in   court   the   amount   so  18  The  John  Twohy,  243  Fed.  720. 

tendered,   is   liable   for   full  interest  19  The  Henry  R.  Tilton,  214  Fed. 

and    costs,    although    the    libellant  165. 

fails   to    recover    a    more    favorable  20  Ibid, 
decree.     The   Ponce,  C.   C.   A.,    178 


§411] 


COSTS  IN  ADMIRALTY 


2009 


In  proceedings  for  a  limitation  of  liability,  costs  are  in  the 
discretion  of  the  conrt.'^^  The  costs  of  a  contested  issue  usually 
fall  on  the  losing  party. ^^  Where  the  rule  requires  appellant  to 
pay  all  costs  before  he  is  delivered  the  record  for  an  appeal,^^ 
the  petitioner  appellant  may  be  required  to  advance  them.  In 
such  a  case  the  court  may  order  that  he  be  repaid  by  the  claim- 
ants so  much  of  the  commissioner's  fees  as  he  has  advanced  to 
the  commissioner  for  hearing  their  claims.^*  Where  the  claims 
appear  to  have  a  slender  foundation  or  claimants  go  into  unnec- 
essary detail  in  the  presentation  of  their  case  or  in  cross-examina- 
tion the  court  may  require  them  to  give  security  for  costs  in- 
cluding their  reasonable  proportion  of  the  commissioner's  fees.^^ 

Charges  of  a  commissioner  in  taking  proof  of  an  uncontested 
claim  should  be  paid  from  the  fund,  not  by  the  petitioner.^^ 
It  has  been  held  that  a  petitioner  is  entitled  to  a  docket  fee  out 
of  the  fund  for  each  creditor  who  proves  his  claim,  but  that 
his  costs  are  not  preferred  over  those  of  such  creditors,^''^  and 
that  where  a  stipulation  for  value  is  given,  he  is  entitled  to  a 
single  docket  fee,^*  payable  by  the  stipulators  and  not  out  of  the 
fund.29  Where  the  owner  gives  a  stipulation  for  value,  he  must 
pay  the  taxable  costs  incident  thereto,  including  the  expense  of 
the  appraisal.^"  The  expenses  of  administration,  including  the 
fees  and  other  charges  of  the  officers  of  the  court  and  of  the 
commissioner,  should  ordinarily  be  paid  from  the  fund.^^ 

Where  a  libel  is  dismissed  for  want  of  jurisdiction,  no  costs 
are  allowed.^^  Where  a  libel  is  filed  to  enforce  a  maritime 
contract  costs  can  be  awarded  upon  its  dismissal  because  there 
is  no  maritime  lien.^^     Where  the  libel  contains  allegations  of 


21  The  Scotland,  118  U.  S.  507, 
518,  30  L.  ed.  153,  155;  Closz  & 
Howard  Mfg.  Co.  v.  J.  I.  Case 
Threshing  Mach.  Co.,  216  Fed.  937. 

22  The  H.  F.  Dimoek,  C.  C.  A., 
77  Fed.  226,  238.  Such  costs  in- 
clude proctors'  fees.  The  W.  A. 
Sherman,  C.  C.  A.,  167  Fed.  976. 

23  Indra  Line  v.  Palmetto  Phos- 
phate Co.,  C.  C.  A.,  239  Fed.  94,  96. 

24  Ibid. 

25  Ibid. 

26  The  H.  F.  Dimoek,  C.  C.  A., 
77  Fed.  226,  238. 


2T  Ee  Norwich  &  New  York 
Trausp.  Co.,  10  Benedict,  193,  18 
Fed.  Cas.  No.  10,361. 

28  Be  Excelsior  Coal  Co.,  136  Fed. 
271;  aff'd  C.  C.  A.,  142  Fed.  724, 
74  C.  C.  A.,  56. 

29  Ibid. 

30  The  H.  F.  Dimoek,  C.  C.  A., 
77  Fed.  226,  238. 

31  Ibid. 

32  The  McDonald,  4  Blatchf .  477 ; 
Wenberg  v.  A.  Cargo  of  Mineral 
Phosphate,  15  Fed.  285,  288. 

33  The  Francisco,  118  Fed.  112. 


2010 


COSTS 


[§412 


the  facts  which  establish  the  jurisdiction  and  the  evidence  sub- 
sequently shows  that  there  is  none,  costs  can  be  awarded  upon 
a  dismissal.^* 

It  seems  that  the  distinction  between  proceedings  in  rem  and 
in  personam  has  no  proper  relation  to  the  question  of  jlirisdic- 

tion.^^ 

In  a  proceeding  in  rem,  under  section  ten  of  the  Pure  Food 
and  Drug  Act,  the  court  has  power  to  render  judgment  for 
costs  against  the  claimant,  although  no  stipulation  to  pay  costs 
has  been  made  ^6  and  no  costs  can  be  recovered  against  the 
United  States.^? 

Where  a  libellant  upon  his  own  appeal  recovers  less  than 
three  hundred  dollars,  exclusive  of  costs,  he  cannot  recover 
costs,  but,  in  the  discretion  of  the  court,  may  be  adjudged  to 
pay  costs  himself.^^  When  both  parties  appeal,  and  the  decree 
of  the  District  court  is  not  disturbed,  it  is  not  usual  to  allow 
costs  to  either  party.^^  AVhere  the  mandate  is  silent,  as  to  costs, 
their  allowance  remains  discretionary  with  the  District  court.*" 
Where  the  parties  stipulate  that  a  suit  shall  be  discontinued 
and  the  libellant  pay  costs  as  taxed  by  the  court,  the  court  has 
no  power  to  include  damages  for  the  fraud  of  libellant  in  filing 
the  libel,  nor  for  the  detention  of  the  vessel,  nor  for  premiums 
paid  for  a  stipulation  for  value,  nor  for  surveyor's  fees  and  ex- 
penses not  incurred  under  its  order.*^ 

§412.  Costs  upon  error  and  appeal.     Upon  a  writ  of  error 
the  successful  party  is  entitled  to  the  costs  unless  the  reversal 


34  Hazelwood  Dock  Co.  v.  Palmer, 
C.  C.  A.,  228  Fed.  325. 

36  Benedict 's  Admiralty,  §  204 ; 
quoted  without  disapproval  in  Hipo- 
lite  Egg.  Co.  V.  U.  S.,  220  U.  S. 
45,  59,  55  L.  ed.  364,  368. 

36  Act  of  June  30,  1906,  eh.  3915; 
34  St.  at  L.  768. 

37  Hipolite  Egg.  Co.  v.  U.  S.,  220 
U.  S.  45,  50,  60,  55  L.  ed.  364,  369. 

38  The  Cassins,  41  Fed.  367;  tJ. 
S.  E.  S.,  §  968,  which,  however,  re- 
fers in  terms  only  to  the  Circuit 
Court. 

39  The  "William  Cox,  9  Fed.   672; 


McKeen  v.  Morse,  1  U.  S.  App.  7. 
A  court  of  admiralty  has  no  power 
to  allow  costs  other  than  those  pro- 
vided for  by  statute,  unless  for  an 
expense  incurred  under  its  order, 
and,  there  being  no  statutory  pro- 
vision for  the  allowance  of  mileage 
to  a  proctor  in  attending  on  the 
taking  of  depositions,  no  such  allow- 
ance can  be  taxed  as  costs.  Pacific 
MaU  S.  S.  Co.  V.  Iverson,  C.  C.  A., 
154  Fed.  450. 

40  The  Aida,  C.  C.  A.,  255  Fed.  50. 

41  The  Kelianee,  189  Fed.  416. 


§412J 


COSTS    UPON    ERROK    AXD    AI'l'EAL 


2011 


is  because  of  want  of  jurisdiction  in  the  court  below. ^  Upon 
aj)i)eal  the  award  of  tlie  costs  is  discretionary  with  the  appellate 
court.^  In  an  ajipellate  court,  when  a  judgment  or  decree  is 
reversed  for  want  of  jurisdiction  in  the  court  below,  costs  are 
usually  imposed  upon  the  party  who  soup:ht  the  jurisdiction  of 
the  court  below,  either  by  original  ])i-ocess  or  by  removal,  whether 
he  is  respondent  or  appellant.^  But  where  the  objection  was  not 
raised  by  the  defendaiils  either  in  the  trial  court  or  the  court 
of  review,  the  judgment  ma}-  be  reversed  without  costs  of  the 
appettl:  and,  in  the  absence  of  an  amendment,  the  case  may  l)e 
dismissed  without  costs  there.*  When  an  appeal  or  writ  of  error 
is  dismissed  for  want  of  jurisdiction,  costs  of  the  motion,  includ- 
ing at  least  the  clerk's  fee  for  printing  and  supervising  the 
record,  may  be  taxed. ^ 

The  successful  party  is  usually  allowed  the  costs,^  even  when 
he  does  not  wholly  succeed,  provided  that  his  success  is  substan- 
tial.''' When  both  parties  appeal,  and  the  decree  is  in  all  respects 
affirmed,  usually  no  costs  of  the  appeal  are  allowed.^  Where 
both  appeal  and  each  succeeds  the  same  rule  usually  applies.® 
AVhere  the  decree  was  affirmed,  except  as  to  a  slight  error  of  fact 


§  412.  1  Hinchman  v.  Eipinsky, 
C.  C.  A.,  202  Fed.  625. 

2  Frey  &  Son,  Inc.  v.  Welch  Grape 
Juice  Co.,  242  Fed.   1004. 

3  Mansfield,  C.  &  L.  M.  Ey.  Co. 
V.  Swan,  111  U.  S.  379,  28  L.  ed. 
462;   Continental  Ins.  Co.  v.  Ehoads, 

119  U.  S.  287,  30  L.  ed.  380;  Peper 
V.  Fordyce,  119  U.  S.  469,  30  L. 
ed.  435;  Everhart  v.  Huntsville  Col- 
lege, 120  U.  S.  223,  30  L.  ed^  623; 
King   Bridge    Co.    v.    Otoe    County, 

120  IT.  S.  225,  30  L.  ed.  623;  Penin- 
sula Iron  Co.  V.  Stone,  121  U.  S. 
631,  30  L.  ed.  1020;  Chapman  v. 
Barney,  129  U.  S.  677,  32  L.  ed. 
800.  Dcvost  V.  Twin  State  Gas  & 
Electric  Co.,  C.  C.  A.,  252  Fed.  125. 

4  Newcomb  v.  Burhank,  C.  C.  A., 
181  Fed.  334.  Where  the  defect  in 
jurisdiction  was  raised  by  the  ap- 
pellant for  the  first  time  upon  the 
appeal,    it    has    been    held    that    he 


could  not  recover  his  costs  iu  the 
latter  court,  hut  that  the  costs  be- 
low should  be  divided,  Tug  Biver 
C.  &  S.  Co.  V.  Brigel,  C.  C.  A.,  67 
l\'d.  625 ;  and  in  one  such  case  the 
costs  of  the  writ  of  error  were  im- 
])Osed  on  the  appellant.  Hunt  v 
Howes,  C.  C.  A.,  74  Fed.  657. 

6  Bradstreet  Co.  v.  Higgins,  114 
U.  S.  262,  29  L.  ed.  176;  Cir.  Ct. 
of  App.  Eule  23;  National  Home 
for  D.  Volunteer  Soldiers  v.  Parrish, 
C.  C.  A.,  194  Fed.  940. 

6  Bailey  v.  Mississippi  Home  Tele- 
phone Co.,  254  Fed.  358;  Stennick 
V.  Jones,  C.  C.  A.,  256  Fed.  354. 

7  Leliigh  &  Wilkes-Barre  Coal  Co. 
V.  Hartford  &  N.  Y.  Transp.  Co., 
C.  C.  A.,  227  Fed.  1019. 

8  The  William  Cox,  9  Fed.  672. 

9  Standard  Plunger  Elevator  Co. 
V.  Stokes,  C.  C.  A.,  212  Fed.  892. 


2012 


COSTS 


[§412 


to  which  the  attention  of  the  court  below  had  not  been  directed  by 
a  motion  to  correct  the  decree  nor  by  the  assignments  of  error, 
costs  were  awarded  to  the  appellee.^"  In  a  case  where  the  appel- 
lant succeeded  only  in  modifying  the  decree,  it  was  held  that 
neither  party  should  have  the  costs  of  the  appeal.^^  When  nei- 
ther party  succeeds,  the  costs  upon  an  appeal  may  be  appor- 
tioned. ^^  An  appointment  may  also  be  made  when  the  success- 
ful party  has  needlessly  amplified  the  record  and  the  printed 
arguments.^^ 

Where  there  was  no  appearance  or  brief  filed  by  the  appellees 
the  court  made  the  affirmance  without  costs.^*  A  party  who  by 
stipulation  took  no  part  in  an  appeal  is  not  entitled  to  any  costs 
in  the  appellate  court.^^  Where  appellees  severally  interested 
recover  costs  in  the  Circuit  Court  of  Appeals,  separate  costs  are 
taxed  for  the  several  appellees  who  appear  separately  and  file 
separate  briefs.^^ 

The  fact  that  the  decree  is  affirmed  upon  grounds  not  stated 
in  the  opinion  of  the  court  of  first  instance  does  not  necessarily 
deprive  the  respondent  of  costs.^' 

Where  a  decree  in  equity  is  reversed  or  modified  upon  an  ap- 
peal with  costs,  the  costs  of  the  appeal  only  are  meant  unless  the 
mandate  otherwise  provides.^^  The  application  for  the  costs  in 
the  District  Court  must  be  made  thereto.^^  The  same  rule  pre- 
vails in  admiralty.^"  The  District  Court  cannot  interfere  with 
the  taxation  of  the  costs  by  the  clerk  of  the  court  of  review.^^ 
Where  a  decree  for  costs  has  been  revei-sed  after  its  collection 
the  District  Court  upon  receipt  of  the  mandate  may  award  resti- 


10  Alaska  Juneau  Gold  Min.  Co., 
V.  Ebner  Gold  Min.  Co.,  C.  C.  A., 
239  Fed.  639,  643. 

11  New  England  E.  Co.  v.  Carne- 
gie Steel  Co.,  C.  C.  A.,  75  Fed.  54. 

IZKell  V.  Trenchard,  C.  C.  A.,  146 
Fed.  245. 

13  Ball  &  S.  F.  Co.  V.  Kraetzer, 
150  U.  S.  Ill,  37  L.  ed.  1019,  infra, 
§  419b. 

14  Benedicta  v.  West  India  & 
Panama  Telegraph  Co.,  256  Fed. 
417. 

16  Pollard  V.  Eeardon,  65  Fed. 
848. 


16  Augusta  Tr.  Co.  v.  Federal  Pr. 
Co.,  C.  C.  A.,  153  Fed.  157. 

17  Post  V.  Beacon  V.  P.  &  El.  Ce., 
89  Fed.  1. 

18  Romeike  v.  Eomeike,  C.  C.  A., 
251  Fed.  273;  Bailey  v.  Mississippi 
Home  Tel.  Co.,  254  Fed.  358. 

19  Ibid. 

20  The  Aida,  C.  C.  A.,  255  Fed. 
50. 

21  Fidelity  &  Deposit  Co.  v.  Ex- 
panded Metal  Co.,  183  Fed.  568; 
Tompkins  v.  St.  Eegis  Paper  Co., 
240  Fed.  838. 


413] 


PETITIONS  FOR  LEAVE  TO  SUE  IN  FOKMA  PAUPERIS 


2013 


tiition.22  Tlie  costs  of  the  transcript,  if  allowed,  are  taxed  in 
the  court  below,  not  in  tlie  court  of  review. ^^  The  cost  of  print- 
ing the  record  is  taxed  in  the  higher  court.^* 

Where  upon  a  writ  of  error  a  judgment  is  reversed  with  costs 
and  a  final  disposition  of  the  case  is  made  all  the  costs  of  the 
District  Court,  including  those  of  all  trials,  are  taxed  in  such 
court  against  the  unsuccessful  part}'.^^  When  a  new  trial  is 
ordered  upon  such  a  reversal  the  costs  of  the  writ  of  error  are 
taxable  immediately  and  do  not  abide  the  event.*^ 

Where  the  Supreme  Court  of  the  United  States  modified,  with 
costs  to  the  defendant,  certain  judgments  of  the  State  courts 
in  favor  of  the  plaintitf,  and  the  State  Court  of  Appeals  remitted 
the  case  to  the  court  of  original  jurisdiction,  "without  costs  in 
this  court,"  it  was  held  that  the  defendant  was  entitled  to  re 
cover  only  the  costs  in  the  Supreme  Court  of  the  United  States, 
and  that  the  plaintifif  was  still  entitled  to  the  costs  w^hich  he 
was  awarded  by  the  original  judgments.^'''  Where  the  Supreme 
Court  of  the  United  States  revei-sed  the  judgment  of  the  State 
court  Avith  costs  the  plaintiff  in  error  was  allowed  to  tax  the 
costs  below.28 

The  court  below  has  the  right  to  construe  the  mandate  of  the 
court  of  review  concerning  costs,^^  subject  to  review  by  appeal  ^^ 
or  mandamus,^^  as  the  case  may  be. 

§413.  Petitions  for  leave  to  sue  in  forma  pauperis.  The 
right  to  sue  in  forma  pauperis  originated  in  the  statute  of 
Hen.  VII.  This  and  the  subsequent  statute  of  Hen.  VIII.  are 
confined  to  actions  in  the  courts  of  common  law,  and  do  not 
extend  to  defendants.     The  courts  of  equity  have  adopted  the 


22  Ibid. 

23  Bailey  v.  Mississippi  Home  Tel. 
Co.,  254  Fed.  358;  Simons  v.  Crom- 
well, C.  C.  A.,  2nd  Circuit,  Jan., 
1920,  in  which  the  author  was  coun- 
sel;   C.  C.  A.   Rule  29. 

24  Nichols  Shepherd  &  Co.  v. 
Marsh,  131  U.  S.  401. 

25  Bailey  v.  Mississippi  Home  Tel. 
Co.,  254  Fed.  358. 

26  Bailey  v.  Mississippi  Home  Tel. 
Co.,  254  Fed.  358;  Berthold  v.  Bur- 
ton, 169  Fed.  495;   Simons  v.  Crom- 


well, C.  C.  A.,  2nd  Circuit,  Jan., 
1920,  in  which  the  author  was  coun- 
sel. 

27  Stevens  v.   Central  Nat.  Bank, 
168  N.  Y.  560. 

28  Green    v.    Supreme    Council    of 
Royal   Arcana,  91   Misc.   606. 

29  Persons  v.   Wirgman,   140   Fed. 
207. 

30  Kell  V.  Trenchard,  C.  C.  A.,  146 
Fed.  245. 

31  Infra,   §  457. 


2014  COSTS  [§  413 

principle  of  these  statutes,  and,  proceeding  further,  have  ex- 
tended the  relief  to  the  case  of  defendants.^  Upon  the  proper 
showing  being  made,  a  person  might  prosecute  an  action  in 
forma  pauperis,  and  where  he  thus  prosecuted  the  action,  it  was 
not  necessary  for  him  to  pay  the  court  expenses,  nor  could  the 
costs  be  assessed  against  him  if  he  failed  in  the  action.^ 

"Any  citizen  of  the  United  States,  entitled  to  commence  any 
suit  or  action  in  any  civil  or  criminal,  in  any  court  of  the  United 
States,  may  upon  the  order  of  the  court,  commence  and  prosecute 
or  defend  to  conclusion  any  suit  or  action,  or  a  writ  of  error,  or 
an  appeal  to  the  Circuit  Court  of  Appeals  or  to  the  Supreme 
Court  in  such  suit  or  action,  including  all  appellate  proceedings, 
unless  the  trial  court  shall  certify  in  writing  that  in  the  opinion 
of  the  court  such  appeal  or  writ  of  error  is  not  taken  in  good 
faith,  without  being  required  to  prepay  fees  or  costs  or  for  the 
printing  of  the  record  in  the  appellate  court  or  give  se(3urity 
therefor,  before  or  after  bringing  suit  or  action,  or  upon  suing 
out  a  writ  of  error  or  appealing,  upon  filing  in  said  court  a  state- 
ment under  oath  in  writing  that  because  of  his  poverty  he  is 
unable  to  -pay  the  costs  of  said  suit  or  action  or  of  such  vrrit 
of  error  or  appeal,  or  to  give  security  for  the  same,  and  that 
he  believes  that  he  is  entitled  to  the  redress  he  seeks  by  such 
suit  or  action  or  writ  of  error  or  appeal,  and  setting  forth  briefly 
the  nature  of  his  alleged  cause  of  action,  or  appeal."^ 

§  413.     1  Lord   Lyndhurst  in   Old-  nor   where   there   was   a   State   stat- 

field   V.   Cobbett,    1    Phil.    613,    615.  ute,   which  they   followed,  Heckman 

See  Ferguson  v.  Dent,  15  Fed.  771.  v.  Mackey,  32  Fed.  57.     Before  the 

2  11  Hen.  vii,  ch.  12.  "A  Means  amendment  it  was  held,  that  the 
to  Help  and  Speed  Poor  Persons  in  statute  did  not  apply  to  appellate 
Their  Suits;  "  extended  23  Hen.  viii,  proceedings,  whether  civil,  Bradford 
eh.  15.  See  Martin  v.  Superior  Court  v.  Southern  Ry.  Co.,  195  U.  S.  243, 
(Cal.),  168  Pae.  135,  L.R.A.  1918  251,  49  L.  ed.  178,  181;  The  Presto, 
B  313.  C.  C.  A.,  93  Fed.  522;   In  re  Brad- 

3  Act  of  July  20,  1892,  27  St.  at  ford's  Petition,  C.  C.  A.,  139  Fed. 
L.  252;  as  amended  June  25,  1910,  518;  contra,  Fuller  v.  Montague, 
36  St.  at  L.  866.7' Before  this  act,  C.  C.  A.,  53  Fed.  206;  Columb  v. 
the  Federal  courts  followed  the  Eng-  Webster  Mfg.  Co.,  76  Fed.  198; 
lish  practice  in  equity,  Ferguson  v.  Reed  v.  Pennsylvania  Co.,  C.  C.  A., 
Dent,  15  Fed.  771;  not  at  common  111  Fed.  714,  49  C.  C.  A.,  572;  see 
law,  Roy  v.  Louisville,  N.  0.  &  T.  Wickerman  v.  A.  B.  Dick  Co.,  C. 
R.  Co.,  34  Fed.  276;  contra,  Bristol  C.  A.,  85  Fed.  851;  Brinkley  v. 
V.  U.  S.,  C.  C.  A.,  129  Fed.  87,  88;  Louisville  &  N.  R.  Co.,  95  Fed.  345, 


§  413]         PETITIONS  FOR  LEAVE  TO  SUE  IN  FORMA  PAUPERIS  I'Olo 

The  application  cannot  be  made  hy  anyone  who  is  not  a  eiti/.en 
of  the  United  States.*  The  statute  applies  to  applications  for 
the  writ  of  habeas  corpus*  and  to  proceedinprs  in  admiralty.^ 
The  writ  may  be  filed  simultaneously  with  the  affidavit^ 

"The  officers  of  the  court  shall  issue,  serve  all  process,  and  per-_ 
form  all  duties  in  such  cases,  and  the  witnesses  shall  attend  as  in  ' 
other  cases,  and  the  plaintiff  shall  have  the  same  remedies  as  are 
provided  by  law  in  other  cases."  * 

"The  court  may  request  any  attorney  of  the  court  to  represent 
such  poor  person  if  it  deems  the  cause  worthy  of  trial,  and  may 
dismiss  any  such  cause  so  brought  under  this  act  if  it  be  made  to 
appear  that  the  allegation  of  poverty  is  untrue,  or  if  said  court 
be  satistied  that  the  alleged  cause  of  action  is  frivolous  or  mali- 
eious.    " 

"Judgment  may  be  rendered  for  costs  at  the  conclusion  of  the 
suit  as  in  other  cases:  Provided  that  the  United  States  shall 
not  be  liable  for  any  of  the  costs  incurred."  " 

The  English  practice  required  that  such  an  application  be 
made  by  a  petition  containing  a  short  statement  of  his  case  or 
defense,  and  when  filed  by  a  complainant  that  it  should  be  ac- 
companied by  a  certificate  signed  by  counsel,  "that  he  con- 
ceives the  plaintiff  has  just  cause  to  be  relieved  touching  the 
matter  of  the  petition  for  which  he  has  exhibited  his  bill;" 
and  also  in  all  cases  by  the  affidavit  of  the  party  himself  "that 
he  is  not  worth  in  all  the  world  the  sum  of  5£  after  payment 
of  his  just  debts,  his  wearing  apparel  and  the  matters  in  ques- 
tion in  the  cause  only  excepted."  ^^  It  seems,  that,  under  the 
statute  of  the  United  States,  the  ai)plication  may  be  made  upon 


where  there-  is  a  learned  and  in- 
stnietive  opinion  by  Judfje  Ham- 
mond upon  the  whole  subject  of  this 
section ;  or  criminal,  Bristol  v.  U. 
S.,  C.  C.  A.,  129  Fed.  87.  In  the 
Second  Circuit,  however,  the  Circuit 
Court  of  Appeals  has  relieved  from 
printing  the  record,  a  petitioner,  for 
the  review  of  an  order  of  a  District 
Court  in  Bankruptcy.  This  was 
done  in  In  re  Friedman,  C.  C.  A., 
161  Fed.  260,  262. 
4  Ibid. 


5  In  re  Mills,  V^5  U.  S.  2(r,:\. 

6  See     O 'Flaherty     v.     Hamburg- 
American  Packet  Co.,  168  Fed.  411. 

7  Ibid.;    O'Connell  v.  Mason,   127 
Fed.  435. 

8  27  St.  at  L.  252. 

9  27  St.  at  L.  252.     See  O  'Connell 
V.  Mason,  127  Fed.  435. 

lost,  at  L.  252. 

llDaniell's  Ch.  Pr.  (2d  Am.  ed.")' 
46;  Wilkinson  v.  Belsher,  2  Brown, 
Ch.  C.  272. 


2016  COSTS  [§413 

a  motion  and  affidavit  without  a  petition  or  a  certificate  of  coun- 
sel, although  a  prudent  practitioner  should  not  omit  them. 

The  affidavit,  when  filed  by  the  plaintiff,  should  show  that  he 
is  a  citizen,  and  that  there  is  no  person  interested  who  is  liable 
to  pay  or  secure  the  costs.^^  A¥hen  it  was  made  to  appear  to  the 
court  that  a  pauper  had  sold  or  contracted  for  the  benefit  of  his 
suit,  or  any  part  thereof,  while  the  same  was  depending,  his  suit 
was  dismissed  absolutely. ^^  "Where  the  plaintiff  sued  in  a  repre- 
sentative capacity,  it  was  held  that  he  must  show  that  those 
whom  he  represented  were  unable  to  pay  the  costs.^*  According 
to  the  English  practice,  a  person  suing  or  being  sued  in  a  repre- 
sentative capacity  could  not  obtain  an  order  of  this  character.^^ 
The  defendant  can  dispute  the  truth  of  the  affidavit  of  poverty 
by  a  motion  to  dismiss  the  cause ;  ^®  not  by  a  motion  for  security 
for  costs.^'''  After  one  affidavit  of  -property  has  been  adjudged 
insufficient,  a  second  may  be  filed. ^^ 

The  allowance  of  the  right  to  take  an  appeal  or  prosecute  a 
ij>irit  of  error  in  forma  pauperis  is  subject  to  the  exercise  of 
iudiciu^  discretion  to  determine  the  good  faith  of  the  application 
and  meri?oP^^^  character  of  the  cause. ^^  Such  an  application 
will  be  denied  If'^'il^^  petition  discloses  no  ground,  sufficiently 

meritorious.^" 

In  England,  the  counsel  aVA  solicitor  assigned  could  not  take 
any  fee,  profit,  or  reward  of  the  i5^^uper  for  the  despatch  of  busi 
ness,  while  the  cause  was  pending  ^.^d  the  party  continued  ' 
forma  pauperis,  except  paupers'  fees',  which  were  twopence  a 

12  Boyle  V.  Great  N.  Ey.  Co.,  63  nnttee  of' a  lunatic;  Bechtle  v.  Ry. 
red.  539.  Co.,    31    Abb.    N.    C.    (N.    Y.)    483. 

13  O 'Flaherty  V.  Hamburg-Ameri-  But  see  Thompson  v.  Thompson, 
can  Packet  Co.,  168  Fed.  411.  cited  in  1  T.  &\V    Ch.  p^   513;  Fer- 

14  Clay  V.  Southern  Ey.  Co.,  C.  C.  guson  v.  Dent,  U  -ted.  771;  Llay 
A.    90  Fed.  472.  "^-    Southern  Ey.   Co.,    C.    C.   A.,   90 

16  Oldfield  V.  Cobbett,  1  Phil.  613 ;  Fed.  472. 

Daniell's  Ch.  Pr.   (2d  Am.  ed.)   44;  16  In  re  Mills,  I'^S  U-  S.  263,  34 

Anon.,  1  Ves.  Jr.  409.     It  was  so  L.  ed.  107;  Fuller  V-  Montague,  53 

held  in  North  Carolina  and  Tennes-  Fed.  206, 

see    of  an  administrator;   McKeil  v.  17  Woods  v.  Bailey,  ll3  Fed.  390. 

Cutler    (N.    C.   1853),   Bushee 's   Eq.  18  Woods  v.  Bailey,  1^3  Fed.  390. 

139;  Smith  v.  By.  Co.,  89  Tenn.  664.  19  Kinney      v.      Plymouth      Rock 

In  North  Carolina,  of  an  assignee  in  Squab  Company,  236  U.  S.  43. 

bankruptcy,  Osborne  v.  Henrv.  66  N.  20  Ibid. 
C.  354.     In  New  York,  of  the  com- 


171 


§  413]    PETITIONS  FOR  LEAVE  TO  SUE  IN  FORMA  PAUPERIS     2017 

sheet  for  the  labor  of  copying.^i  Nor  could  any  agreement  be 
made  for  the  payment  of  any  recompense  afterwards.22  For  an 
offense  in  either  of  these  respects,  both  the  lawyer  and  the  client 
were  guilty  of  contempt  of  court ;  and  the  client  was  dispaupered, 
and  forever  disqualified  from  suing  as  a  pauper  in  the  same 
suit. 23  In  the  courts  of  the  United  States  an  attorney  who  has 
contracted  to  bring  a  suit  upon  a  contingent  fee  is  an  interested 
person ;  and  in  such  a  case,  permission  to  sue  in  forma  pauperis 
is  denied.^* 

No  fees  except  paupers'  fees  could  be  collected  from  the 
pauper,  nor  could  costs  be  decreed  against  him,^^  except  for 
scandal.2^  In  case  of  success,  however,  the  court  might  allow 
him  full  costs.  "For  though  he  is  at  no  costs,  or  but  small  ex- 
pense, yet  the  counsel  and  clerks  do  not  give  their  labor  to  the 
defendant,  but  to  the  pauper.  "^7 

In  the  Federal  Courts,  in  case  of  success,  the  attorney'  is  al- 
lowed a  reasonable  compensation  out  of  the  recovery .^8  The 
order  permitting  a  party  to  sue  or  defend  in  forma  pauperis  had 
to  be  served  upon  the  opposite  party  as  soon  as  possible,  for  the 
pauper  was  liable  for  all  costs  decreed  against  him  before  the 


ZlDaniell's  Ch.  Pr.  (2d  Am.  ed.) 
47. 

22  Ibid.  In  New  York  such  an 
agreement,  in  a  ease  begun  in  a 
State  court  and  afterwards  removed 
to  the  District  Court  was  held  to  be 
invalid.  Matter  of  Tyndall,  117  App. 
Div.  (N.  Y.)  294.  An  attorney  in 
such  a  case  has  no  lien  on  the  cause 
of  action.  0  'Flaherty  v.  Hamburg- 
American  Packet  Co.,  168  Fed.  411. 

23  Ibid. 

24  Boyle  V.  Great  N.  Ry.  Co.,  63 
Fed.  5.39;  Feil  v.  Wabash  R.  Co., 
119  Fed.  490;  Phillips  v.  Louisville 
&  N.  R.  Co.,  1.53  Fed.  795;  Silvas  v. 
Arizona  Copper  Co.,  213  Fed.  504; 
Cahill  V.  Manhattan  Ry.  Co.,  38  App. 
Div.    (N.  Y.)   314. 

26  Ibid. ;  Scatchmer  v.  Foulkard, 
1  Eq.  Cas.  Abr.  125. 


26  Rattray  v.  George,  16  Ves.  232. 
See  also  Murphy  v.  Oldis,  2  Molloy, 
475;  Richardson  v.  Richardson,  5 
Paige  (N.  Y.)  58. 

27  Scatchmer  v.  Foulkard,  1  Eq. 
Cas.  Abr.  125;  Rattray  v.  George, 
16  Ves.  232;  Daniell's  Ch.  Pr.  (2d 
Am.  ed.)   49,  50. 

28Whelan  v.  Manhattan  Ry.  Co., 
86  Fed.  219,  220;  Devore  v.  Dela- 
ware, L.  &  W.  R.  R.  Co.  (U.  S.  C. 
C.  Second  Circuit) ;  reported  in 
Matter  of  Tyndall,  117  App.  Div. 
(N.  Y.)  294;  where,  after  an  infant 
plaintiff  had  recovered  for  $21,- 
855.80,  his  attorney  having  taken 
the  case  upon  a  contingent  fee  of 
50  per  cent  and  sued  in  forma, 
pauperis,  the  attorney  was  allowed 
one-third  of  the  recovery  in  addi- 
tion to  his  disbursements. 


2018  COSTS  [§414 

service  of  the  order.^^     A  party  could  be  dispaupered  for  im- 
proper or  vexatious  conduct  in  the  suit.^° 

The  Act  of  July  1,  1916,  relieves  seamen  from  furnishing 
l)onds  or  prepayment  of,  or  making  deposit  to  secure  fees  or 
costs  in  suits  for  wages  or  salvage  and  to  enforce  laws  made  for 
their  health  and  safety.^^  It  has  been  said  that  this  has  the 
practical  eff'ect  of  making  them  sue  in  forma  pauperis.^^ 

§  414.  Classification  of  costs.  Ditferent  principles  regulate 
the  amount  of  costs  according  as  they  are  decreed  to  be  paid  by 
one  party  to  another,  or  out  of  a  fund  in  court. ^  In  the  for- 
mer case  costs  are  said  to  be  taxed  as  between  party  and  party, 
in  the  latter  as  between  solicitor  and  client.^ 

§  415.  Costs  as  between  party  and  party.  Costs  as  betw^een 
party  and  party  are  regulated  by  statute.  They  are  the  amount 
of  the  "bill  of  fees  of  the  clerk,  marshal,  and  attorney,  and  the 
amount  paid  printers  and  witnesses,  and  lawful  fees  for  exem- 
l)]ifications  and  copies  of  papers  necessarily  obtained  for  use  on 
trials."! 

§416.  Attorneys'  fees  in  general.  The  Revised  Statutes  fix 
the  following  sums  to  be  taxed  as  attorney's  fees  in  a  bill  of 
costs  between  party  and  party:  "On  a  trial  before  a  jury,  in 
civil  or  criminal  causes,  or  before  referees,  or  on  a  final  hearing 
in  equity  or  admiralty,  a  docket  fee  of  twenty  dollars,  provided 
that  in  cases  of  admiralty  and  maritime  jurisdiction,  where  the 
libellant  recovers  less  than  fifty  dollars,  the  docket  fee  of  his 
proctor  shall  be  but  ten  dollars.  In  eases  at  law,  when  judgment 
is  rendered  without  a  jury,  ten  dollars.  In  cases  at  law  when 
the  cause  is  discontinued,  five  dollars.  For  scire  facias  and  other 
proceedings  on  recognizances,  five  dollars.  For  each  deposition 
taken  and  admitted  in  evidence  in  a  cause,  two  dollars  and  fifty 
cents.  For  services  rendered  in  cases  removed  from  a  District 
to  a  Circuit  Court  by  writ  of  error  or  appeal,  five  dollars."  ^ 

29  Ballard  V.  Catling,  2  Keen,  606.  2  Trustees    v.    Greenough,    10.5    U. 

30  Wagner  v.  Meats,  3   Sim.   127.       S.  527,  26  L.  ed.   1157;    Central  R. 
3139  St.  at  L.  313,  40  St.  at  L.       Co.  v.  Pettus,  113  U.  S.  116,  28  L. 

157;   infra,  §425.  ed.  915. 

32  The  Memphiaii,  245  Fed.  4S4.  §  415.     1  U.  S.  E.  S.,  §  983.     But 

§  414.     1  Trustees    v.    Greenough,  see  Spaulding  v.  Tucker,  2  Sawyer, 

105  U.  S.  527,  26  L.  ed.  1157;  Cen-  50. 

tral  E.  Co.  v.  Pettus,  113  U.  S.  116,  §  416.     1  U.  S.  E.  S.,   §  824.     Be- 

28  L.  ed.  915.  sides  the   cases  elsewhere  cited,  see 


§416] 


ATTORNEYS     FEES  IX  GENERAIj 


2019 


Because  a  master's  original  report  is  not  sufficiently  full  to 
permit  a  disposition  of  the  exceptions  thereto  without  an  original 
examination  by  the  court  of  all  testimony  presented,  the  court 
may  re-refer  the  cause.  In  such  a  case  no  allowance  of  costs 
should  be  made  on  account  of  objections  and  exceptions  to  the 
master's  tirst  report  ovci-i-uled,  which  is  jiractically  dnplicated 
in  the  exceptions  and  objections  to  a  second  report.^ 

The  Equity  Rules  provide:  that  "the  regular  taxable  costs  for 
every  bill  and  answer  shall  in  no  case  exceed  the  sum  which  is  al- 
lowed in  the  State  court  of  chancery  in  the  district,  if  any  there 
be ;  but  if  there  be  none,  then  it  shall  not  exceed  the  sum  of  three 
dollars  for  every  bill  of  answer."'  ^  In  the  absence  of  an  express 
local  rule  upon  the  subject,  it  was  held  that  the  court  may  allow 
the  costs  for  drawing  pleadings,  decrees  and  orders,  in  accord- 
ance with  the  State  practice  as  authorized  by  statute.* 

Where,  because  of  an  unnecessary  multiplication  of  proceed- 
ings, an  extra  allowance  is  made  for  the  increase  of  costs  thereby 
caused,  no  counsel  fee  can  be  for  that  reason  allowed.^ 

The  attorney's  costs  belong  to  the  party,  not  to  his  attorney, 
and  proceedings  to  collect  them  should  be  taken  in  the  name  of 
the  party .^    In  the  absence  of  a  special  agreement,  however,  the 


Bashaw  v.  U.  S.,  47  Fed.  40.  A 
State  statute  allowing  an  extra  al- 
lowance in  a  partition  suit  was 
followed  by  the  Federal  court.  Wil- 
lard  V.  Serfell,  62  Fed.  625.  The 
question  whether  counsel  fees  stipu- 
lated for  in  a  note  or  mortgage  can 
be  taxed,  depends  upon  the  local 
law  of  the  State,  in  botli  suits  on 
the  common-law  side  of  the  court, 
rnd  suits  in  euuity.  so  far  as  taxa- 
tion against  the  defendant  is  con- 
cerned. Bendey  v.  Townsend,  109 
U.  S.  665,  27  L,  ed.  1065;  Dodge 
V.  Tolleys,  144  U.  S.  451,  36  L.  ed. 
501 ;  Gray  v.  Havermeyer,  53  Fed. 
174.  See  also  Fowler  v.  Equitable 
Tr.  Co.,  141  V.  S.  384,  35  L.  ed. 
786;  Robison  v.  Alabama  &  G.  Mfg. 
Co.,   51   Fed.   268;    American  F.   L. 


M,  Co.  V.  Whaley,  63  Fed.  743.  For 
counsel  fees  out  of  the  fund  in 
eiiuity  cases,  see  infra,  §S42l,  422. 

2  Firestone  Tire  &  Rubber  Co.  v. 
Riverside  Bridge  Co.,  C.  C.  A.,  247 
Fed.  625. 

3  Equity  Rule  25. 

4  Matheson  v.  Hanna-Schoelkopf . 
128  Fed.  162,  where  ten  cents  a 
line  for  first  page  and  six  cents 
a  line  for  each  subsequent  page  was 
allowed,  in  accordance  with  Pa.  acts 
1842,  §9,  P.  L.  433  and  Pa.  acts 
1864,  P.  L.  775. 

6  Motion  Picture  Patents  ("n.  v. 
Yankee  Film  Co.,  C.  C.  A.,  201  Fed. 
63,  reversing  192  Fed.  134;  constru- 
ing U.  S.  R.  S.,  §982,  Comp.  St. 
p.  706,  supra,  §  407. 

SBroyles   v.    Buck,    37    Fed.    137. 


2020 


COSTS 


[§  416a 


value  of  the  attorney's  services  to  his  client  will  be  considered 
as  worth  at  least  the  taxable  costsJ 

§416a.  Attorneys'  fees  under  Anti-Trust  and  Interstate 
Commerce  laws.  Where  a  plaintiff  recovers  damages  under 
the  Anti-Trust  act,  he  is  entitled  to  judgment  for  threefold  the 
damages  by  him  sustained  and  the  costs  of  suit,  including  a  rea- 
sonable attorney's  fee.^  The  same  practice  prevails  in  an  action 
for  damages,  caused  by  a  violation  of  the  Interstate  Commerce 
Act,*^  or  to  recover  money  which  the  Interstate  Commerce  Com- 
mission has  ordered  paid.^ 


7  Celluloid  Mfg.  Co.  v.  Chandler, 
27  Fed.  9.  By  the  acts  of  May  28, 
1896  (29  St.  at  L.  180,  181,  186), 
and  March  3,  1905  (33  St.  at  L. 
1156,  1207),  the  compensation  of  all 
the  district  attorneys  of  the  United 
States,  except  in  the  District  of  Co- 
lumbia, is  limited  to  salaries  there- 
in fixed.  Formerly  the  district  at- 
torney for  the  southern  District  of 
New  York  received  compensation  in 
addition  to  his  salary  in  prize  cases 
(U.  S.  R.  S.,  §§4646,  4647;  The 
Anna,  Blatchf.  Prize  Cases,  337) 
and  also  when  he  appeared  by  direc- 
tion of  the  Secretary  or  Solicitor 
of  the  Treasury  on  behalf  of  any 
officer  of  the  revenue  in  any  suit 
against  such  officer  for  any  act  done 
by  him,  or  for  the  recovery  of  any 
money  received  by  him  and  paid 
into  the  Treasury  in  the  perform- 
ance of  his  official  duties  (U.  S.  R. 
S.,  §  827)  ;  and  also  for  services 
under  the  direction  of  the  Secretary 
of  the  Treasury  and  the  Commis- 
sioner of  Internal  Revenue  in  suits 
or  proceedings  to  recover  fines,  pen- 
alties and  forfeitures  (U.  S.  R.  S., 
§  838;  Be  District  Attorney,  23  Fed. 
26;  U.  S.  V.  Bashaw,  152  U.  S. 
436,  38  L.  ed.  505. 

§416a.  lAet  of  July  2,  1890, 
26  St.  at  L.  209,  §  7.  Where  tho 
trial  occupied  about  five  days,  and 
the  plaintiff  recovered  a  verdict  for 
$500,    the    court,    upon    evidence    of 


the  value  of  their  services,  awarded 
to  his  attorneys  $750.  The  judg- 
ment was  affirmed  iipon  appeal. 
Montague  &  Co.  v.  Lowry,  193  U. 
S.  38,  48,  48  L.  ed.  608,  612.  Where 
the  defendant  settled  an  action  in 
the  State  court  for  damages  caused 
by  the  same  acts  that  were  the 
foundation  of  his  suit  in  the  court 
of  the  United  States,  it  was  held 
that  this  barred  the  latter  suit  and 
that  neither  the  treble  damages,  nor 
the  attorney's  fees,  could  be  therein 
recovered.  Clabaugh  v.  Southern 
Wholesale  Grocers'  Ass'n.,  181  Fed. 
706. 

2  Act  of  January  4,  1887,  24  St. 
at  L.  379,  §  8,  3  Fed.  St.  Ann.  809, 
Comp.  St.  3154,  Pierce  Fed.  Code, 
§  6427.  This  statute  is  constitu- 
tional. Denver  &  R.  G.  R.  Co.  v. 
Baer  Bros.  Mercantile  Co.,  C.  C.  A., 
209  Fed.  577,  where  $250  was  al- 
lowed. Such  an  item  cannot,  how- 
ever, be  included  in  the  costs  recov- 
ered by  a  shipper  in  an  action 
against  an  initial  carrier  for  loss 
on  a  connecting  line.  Atlantic 
Coast  Line  R.  R.  Co.  v.  Riverside 
Mills,  219  U.  S.  186,  208,  31  Sup. 
Ct.  164,  55  L.  ed.  167,  31  L.R.A. 
(N.    S.)    7. 

3  Ibid.,  as  amended  by  Act  of 
June  29,  1906,  Ch.  3591,  §  5,  34  St. 
at  L.  590,  Comp.  St.  Supp.  1909, 
p.  1159;  Louisville  &  N.  R.  Co.  v. 
Dickerson,  C.  C.  A.,  191  Fed.  705. 


§4161)]  attorneys'    PKFS    under    COPYRICniT    I. AW  2021 

The  Act  to  Regulate  Commerce  does  not  allow  any  attorney's 
fee  for  a  reparation  ])roceecling  before  the  commission,  liiit  only 
allows  sueh  a  fee  in  an  action  in  the  courts  based  upon  the  award 
of  reparation.*  The  allowance  for  attorney's  fee  to  be  added  as 
costs  to  the  judgment  recovered  by  a  shipper  on  ;iii  unpaid 
award  for  reparation  is  for  services  of  the  attorney  in  ihe  action 
on  the  award  and  not  for  services  in  the  proceeding  before  the 
commission,  and  such  part  of  an  allowance  for  attorney's  fees 
as  is  specially  given  for  services  in  that  proceeding  should  be 
eliminated  from  the  judgment. ^  The  reasonable  attoi-ney's  fee 
authorized  to  be  allowed  in  favor  of  the  plaintiff  in  an  action 
to  enforce  an  award  of  damages  made  by  the  Interstate  Com- 
merce Commission  lo  be  taxed  as  a  part  of  the  costs  "if  the 
petitioner  shall  timdly  prevail,''  should  not  be  taxed  when  a 
writ  of  error  is  issued,  until  this  is  determined.^  It  has  been 
held  that  if  a  railroad  company  appeals  or  sues  out  a  writ  of 
error,  an  additional  allowance  for  attorneys'  fees  in  the  court 
of  review  may  be  allowed.''' 

The  allowance  of  counsel  fees  for  services  in  a  suit  does  not 
cover  the  subsequent  services  on  appeal,  as  it  must  be  assumed 
that  the  District  Judge  fixes  the  fee  for  services  up  to  the  time 
of  the  allowance,  and  considered  the  fee  allowed  as  reasonable 
for  those  services.^ 

§416b.  Attorneys'  fees  under  Copyright  law.  In  all  actions, 
suits  or  proceedings  under  the  copyright  law,  excejit  when 
brought  by  or  against  tlic  I'liited  States,  or  any  officer  thereof, 
"full  costs  shall  be  allowed,  and  the  court  may  award  to  the 
prevailing  party  a  reasonable  attorney's  fee  as  part  of  the 
costs."  ^  In  an  action  for  damages  as  well  as  in  a  suit  to  enjoin 
the  infringement  of  a  copyright,  a  reasonable  counsel  or  attor- 
ney's fee,  to-be  fixed  by  the  court,  must  be  taxed  and  collected 
as  part  of  the  plaintitt"s  costs,  if  he  is  successful. ^    Whei'e  there 

4  Meeker  &  Co.  v.  Lehigh  Valley  where   the   attorney 's  fee  upon  the 

R.  R.  Co.,  236  U.  S.  iVZ,  4:;2.  appeal  was  fixed  at  $100. 

6  Ibid.  8  Mills    v.    Lehijjli    Vallry    H.    Co. 

6  Missouri  Pac.  Ry.   Co.  v.   C.  E.  226  Fed.  812. 

Ferguson    Sawmill    Co.,    C.    C.    A.,  S -41611.     i  Act  of  March  4,  1909, 

235  Fed.  474.  35  St.  at  L.,  1075,  §  40,  Pierce  Fed. 

7  Louisville  &  N.  R.  Co.  v.  Dick.T        Code  Supp.  §1589, 

son,   C.    C.   A.,    191    Fed.    705,    712,  2  Where   a   preliiiiiuary   injum-tion 

Fed.  Prat'.  Vol.  II— 57 


2022  COSTS  [§416c 

had  been  laches  no  counsel  fee  was  allowed.^  Where  a  copyright 
proprietor  obtained  an  injunction,  with  a  judgment  for  profits, 
against  an  innocent  infringer,  misled  by  the  accidental  omis- 
sion of  the  copyright  notice,  who  did  not  in  his  answer  admit 
that  the  complainant  was  entitled  to  the  relief  granted,  an 
attorney's  fee  was  allowed.*  When  the  owners  of  a  copyright, 
which  was  infringed,  did  not  object  upon  the  :^st  discovery  of 
the  infringement,  and  thus  allowed  defendant  to  expend  large 
sums  of  money  in  advertising,  an  allowance  of  attorney's  fees, 
being  of  discretion,  was  not  granted  in  a  suit  for  injunction  and 
an  accounting.^  In  a  suit  by  the  owner  of  a  musical  copyright 
to  recover  for  the  use  of  the  composition  on  a  mechanical  player, 
the  complainant  ma^-  be  allow^ed  counsel  fees.^ 

Where  in  a  suit  for  the  infringement  of  a  copyright  covering 
a  commercial  directory  much  labor  was  required  to  prove  an  in- 
fringement and  the  trial  lasted  for  several  days,  an  attorney's 
fee  equal  to  the  damages  was  allowed  and  affirmed.''' 

§  416c.  Attorneys '  fees  for  collecting'  war  risk  insurance. 
The  Act  creating  ilie  Bureau  of  War  Risk  Insurance  as  amended 
provides:  "That  no  claim  agent  or  attorney  shall  be  recog- 
nized in  the  presentation  or  adjudication  of  claims  under  ar- 
ticles two,  three,  and  four,  except  that  in  the  event  of  disagree- 
ment as  to  a  claim  under  the  contract  of  insurance  between  the 
bureau  and  any  lieneficiary  or  lieneficiaries  thereunder  an  action 
on  the  claim  may  be  brought  against  the  United  States  in  the 
District  Court  of  the  Tnited  States  in  and  for  the  district  in 
which  such  beneficiaries  or  any  one  of  them  resides,  and  that 
whenever  judgment  shall  be  rendered  in  an  action  brought  pur- 
suant to  this  ]unvision  the  court,  as  part  of  its  judgment,  shall 
determine  and  allow  such  reasonable  attorney's  fees,  not  to 
exceed  five  per  centum  of  the  amount  recovered,  to  be  paid  by 
the  claimant   in   behalf  of   whom  such   proceedings  were   insti- 

was  granted,   somewhat  troublesome  4  Strauss  v.  Penn  Printing  &  Pub- 
interrogatories  were  drawn,  a  motion  lishing  Co.,  220  Fed.  977. 
made   concerning   them   and   a   trial  8  Haas  v.  Leo  Feist,  Inc.,  234  Fed. 
of   one   day;    $300   was   allowed   be-  105. 

sides    statutory    costs.      Stodart    v.  6  Feist,    Inc.    v.    Am.    Music    Eoll 

Mutual    Film    Corp.,    L'49    Fed.    .107,  Co.,  C.  C.  A.,  251  Fed.  243. 

511.  7S.  E.  Hendricks  v.  Thomas  Pub. 

3  Haas  v.  Leo  Feist,  234  Fed.  105,  Co.,  C.  C.  A.,  242  Fed.  37   ($2,500.) 


'§416d 


ATTORNEYS     DOCKET   FEES 


'J023 


tilted  to  hib  attoiuey,  said  fee  to  lie  paid  out  ol"  the  payments  to 
be  made  to  the  beuetieiary  under  the  judfrment  rendered  at  a 
rate  not  exceeding  one-tenth  of  each  of  such  payments  until 
paid. 

Any  i)erson  who  shall,  directly  or  indirectly,  solicit,  contract 
for,  ehai'ge,  (jr  receive,  or  who  shall  attempt  to  solicit,  contract 
for,  charge,  or  receive  any  fee  or  compensation,  except  as  herein 
provided,  shall  be  guilty  of  a  misdemeanor,  and  for  each  and 
every  oft'ense  shall  bo  punishable  by  a  fine  of  not  more  than  $500 
or  by  imprisonment  at  hard  labor  for  not  more  than  two  years, 
or  by  both  such  fine  and  imi)risonment.^ 

§  416d.  Attorneys'  docket  fees.  A  docket  fee  of  twenty  dol- 
lars is  taxed  for  a  hearing  upon  an  appeal.^  and  for  a  hearing 
upon  an  application  for  the  writ  of  mandamus  in  the  Supreme 
Court  of  the  United  States.^ 

It  has  been  held  that  a  docket  fee  can  be  taxed  for  each  hear- 
ing, including  a  rehearing  before  the  court  after  bill,  answer, 
and  replication  have  been  filed,^  but  not  for  a  hearing  upon  a 
demurrer  whieli  is  overruled,  when  the  defendant  has  leave  to 
answer  and  an  answer  is  tiled.*  When  a  demurrer  was  sustained, 
a  docket  fee  was  allowed.^  When  a  motion  to  remand  is  granted, 
a  docket  fee  may  be  allowed.^ 

To  constitute  "a  final  hearing  in  efjuity  or  admiralty,"  there 
must  be  a  hearing  of  the  cause  upon  its  merits.'^     No  docket  fee 


5  416c.  1  Art  of  8fi.t.  -2,  1914,  cli. 
293,  §13,  Oct.  6,  1907,  ch.  105, 
5  2,  40  St.  at  L.  399,  amended  May 
20,  1918,  ch.  77,  §  1,  40  St.  at  L. 
399,  Comp.  St.   §514. 

§  416d.  1  Kansas  City,  Ft.  S.  & 
Mo.  Ry.  Co.  V.  McDonald.  60  Fed. 
522;  .John  Shillito  Co.  v.  McCIung, 
66  Fed.  22. 

2  i'x  parte  Hughes,  114  U.  S. 
.548,  29  L.  ed.  281.  • 

8  Am.  D.  R.  B.  Co.  v.  Sheldon, 
28  Fed.  217;  Peck  S.  &  W.  Co.  v. 
Fray,  92  Fed.  947. 

4  McLean  v.  Qark,  23  Fed.  861. 

6  Price  v.   Coleman,  22  Fed.  694. 
6  In    W.    D.    MichiiTJin.    $lin,   .loss 

lyn   V.  PhUlips,  27  Fed.  481.  In  D. 


South  Carolina,  $Ui,  Riser  v.  Houtli 
ern  Ry.  Co.,  116  Fed.  1014;  Acker 
V.  Charleston  &  W.  C.  Ry.  Co.,  190 
Fed.  288.  In  N.  D.  Tennessee.  $lii. 
W.  r.  Tel.  Co.  V.  Louisville  &  N. 
[{.  Co.,  208  Fed.  481.  lu  D.  lu- 
d'ana,  a  docket  fee  was  den"od: 
and  such  is  said  to  be  the  practice 
throughout  the  Seventh  Circuit. 
Smith  V.  Western  I'nion  Tel.  Co.,  81 
Fed.  242;  Walsh's  Adm 'x.  v.  .loplin 
&  P.  Ry.  Co.,  219  Fed.  345. 

TWooster  v.  Handy,  23  Fed.  49; 
(ioodyear  D.  V.  Co.  v.  Osgood,  2 
B.  &  A.  Pat.  Cas.  529;  Coy  v.  Per- 
kins, 13  Fed.  Ill;  Yale  Lock  Mfg. 
Co.  V.  Colvin,  14  Fed.  269.  Contra, 
Goodyear  v.  Sawyer,  17  Fed.  2. 


2024 


COSTS 


[§416d 


is  allowed  for  a  hearing  upon  an  interlocutory  application  by 
a  party  to  the  suit.^  When  a  bill  is  taken  as  confessed,  there 
must  be  a  hearing  before  the  decree,  and  consequently  the  com- 
plainant has  been  allowed  to  tax  a  docket  fee.^  When  a  bill 
was  dismissed  without  a  hearing,  no  docket  fee  was  formerly 
allowed.  1**  The  voluntary  dismissal  of  an  amended  libel  filed 
after  the  submission  to  the  court  of  exceptions  to  the  original 
libel  which  were  sustained,  did  not  deprive  the  respondent  of  a 
docket  fee.i^  In  a  case  where,  after  an  interlocutory  decree  re- 
quiring the  defendant  to  act,  the  plaintiff  moved  for  a  dismissal 
of  his  bill  latter  was  obliged  to  pay  the  former  a  docket  fee  as 
well  as  other  costs.^^  No  docket  fee  is  allowed  upon  the  dis- 
missal of  a  bill  for  want  of  prosecution ;  ^^  nor  when  a  libel  is  dis- 
missed without  prejudice  at  the  motion  of  the  libellant  without 
opposition ;  i*  nor  when  judgment  is  entered  upon  an  offer  of 
judgment  before  trial, ^^  or  by  consent.^®  Nor  for  a  reference 
npon  a  motion  for  an  interlocutory  injunction ;  ^'  nor  for  a 
hearing  upon  a  petition  for  leave  to  intervene ;  "  nor  when  the 
complainant  has  the  bill  dismissed  upon  his  own  motion  before 
a  final  hearing ;  ^^  nor  for  a  trial  at  which  the  jury  disagreed.^" 


"Doughty  V.  West  B.  &  C.  Mfg. 
Co.,  8  Blatchf.  107;  Central  Tr.  Co. 
V.  Wabash,  St.  L.  &  P.  E.  Co.,  32 
Fed.  684. 

9  Andrews  v.  Cole,  20  Fed.  410. 
Contra,  Peerless  Light  Co.  v.  Levi- 
ton,  247  Fed.  606. 

10  Wooster  v.  Handy,  23  Fed.  49 ; 
Goodyear  D.  V.  Co.  v.  Osgood,  2 
B.  &  A.  Pat.  Cas.  529;  Coy  v.  Per- 
kins, 13  Fed.  Ill;  Yale  L.  Mfg.  Co., 
V.  Colvin,  14  Fed.  269.  Contra, 
Goodyear  v.  Sawyer,  17  Fed.  2. 

11  Albion  Lumber  Co.  v.  Inter- 
Ocean  Transp.  Co.,  240  Fed.  1019. 

12  Goodyear  v.  Sawyer,  17  Fed.  2. 

13  Wooster  v.  Handy,  23  Fed.  49; 
Wighton  V.  Brainard,  28  Fed.  29. 

14  Albion  Lumber  Co.  v.  Inter- 
Ocean  Transp.  Co.,  240  Fed.  1019. 

16  Swan  v.  Wiley,  Harker  &  Camp. 
Co.,  161  Fed.  236.  The  prevailinj: 
party    may    tax    the    disbursements 


necessarily  made   in   order   to   enter 
judgment  upon  the   offer.     Ibid. 

16  The  Dwinsk,  227  Fed.  958. 

17  Doughty  V.  W.  B.  &  C.  Mfg. 
Co.,  8  Blatchf.  107. 

18  Central  Tr.  Co.  v.  Wabash,  St. 
L.  &  P.  Ry.  Co.,  32  Fed.  684;  Mo. 
Pac.  Ey.  Co.  v.  Texas  &  P.  Ry.  Co., 
38  Fed.  775.  But  see  U.  S.  v. 
Payne,  147  U.  S.  687,  37  L.  ed.  332. 
Cf.  U.  S.  V.  King,  147  U.  S.  676,  37 
L.   ed.   328. 

19  Coy  V.  Perkins,  13  Fed.  Ill; 
Yale  Lock  Mfg.  Co.  v.  Colvin,  14 
Fed.  269;  Wooster  v.  Handy,  23 
Fed.  49;  Cahn  v.  Qung  Wah  Lung, 
28  Fed.  396;  Eyan  v.  Gould,  32 
Fed.  754;  N.  Y.  B.  &  B.  Co.  v.  N. 
J.  C.  S.  &  E.  Co.,  32  Fed.  755. 
Contra,  Goodyear  v.  Sawyer,  17 
Fed.   2. 

20  Cleaver  v.  Traders '  Ins.  Co.,  40 
Fed.     863;     Dedekam     v.     Vose,     3 


§  416dJ 


ATTORNEYS     DOCKET   FEES 


2025 


But  two  docket  fees  are  taxable  in  admiralty  when  a  libel  and 
cross-libel  are  tried  together.^^  In  a  suit  to  enforce  the  claims 
of  materialmen  ajjainst  the  surety  upon  a  bond  of  a  contraetor,^^ 
and  upon  a  hearing  before  a  master  of  disputed  claims  against 
receivcrs,^^  each  claimant  who  appears  by  a  separate  attorney  is 
entitled  to  a  docket  fee.  In  a  proceeding  in  admiralty  for  the 
limitation  of  liability,  where  there  has  been  an  appraisal  and 
a  stipulation  for  value,  the  petitioner  is  entitled  to  a  single 
docket  fee ;  ^*  and  he  may  deduct  from  the  fund  the  expenses 
of  the  administration,  but  not  the  cost  of  procuring  the  stipula- 
tion, nor  the  expense  of  the  stipulation  or  the  appraisal.^^  In 
such  proceeding,  each  person  claiming" damages  and  recovering 
the  same  is  entitled  to  a  separate  proctor's  fee,  payable  by  the 
stipulators  for  costs,  and  not  out  of  the  fund  ^^  unless  the  same 
proctor  appears  for  several  claimants,  in  which  case  his  clients 
can  tax  but  one  docket  fee.^' 

The  docket  fee,  it  has  been  said,  "is  taxable  whenever  the  trial 
is  entered  upon  by  the  swearing  of  a  jury  in  a  common-law  case, 
or  by  the  introduction  of  testimony  or  the  final  opening  of  the 
argument  upon  a  final  hearing  in  equity  or  admiralty.  The  fee 
is  not  made  by  the  statute  to  depend  upon  a  judgment  or  decree, 
but  is  taxable  on  a  trial  or  final  hearing.  As  the  labor  for  which 
the  docket  fee  is  supposed  to  be  a  compensation  is  performed  on 
or  before  the  trial,  equitably  the  party  ought  not  to  lose  the 


Blatehf.  77,  153;  Troy  I.  &  N.  Fac- 
tory V.  Coming,  7  Blatehf.  16; 
Strafcr  v.  Carr,  6  Fed.  466;  Hunt- 
ress V.  Town  of  Epson,  15  Fed.  732. 
But  see  Schmieder  v.  Barney,  19 
Blatehf.  143;  s.  c,  7  Fed.  451; 
Wooster  v.  Handy,  23  Fed.  49.  It 
•was  formerly  held  that  in  such  a 
case  a  district  attorney  might  col- 
lect the  docket  fee  from  the  United 
States.  Van  Hoorebeke  v.  U.  S.,  46 
Fed.  456. 

21  British  &  South  A.  S.  N.  Co. 
V.  Delaware,  L.  &  W.  R.  Co.,  195 
Fed.  984. 

22  Title  Guaranty  &  Tr.  Co.  v. 
Crane  Co.,  219  U.  S.  24,  55  L.  ed. 
72. 


23  Ely  V.  Van  Kannel  Eevolving 
Door  Co.,  184  Fed.  459. 

2iEe  Excelsior  Coal  Co.,  136  Fed. 
271;  aff'd  C.  C.  A.,  112  Fed.  724. 
74  C.  C.  A.  56.  But  see  Norwich 
&  N,  Y.  Transp.  Co.,  10  Benedict, 
193,  18  Fed.   Cas.   No.   10,361. 

26  Be  Excelsior  Coal  Co.,  136  Fed. 
271;  aff'd  C.  C.  A.,  112  Fed.  724, 
74  C.  C.   A.  56. 

26  The  L.  F.  Munson,  127  Fed. 
767;   The  Bencliff,  158  Fed.  377. 

27  Boston  Marine  Ins.  Co.  v.  Met- 
ropolitan Eedwood  Lumber  Co.,  C. 
C.  A.,  197  Fed.  703. 


2026 


COSTS 


[§  416e 


benefit  of  it  by  a  discontinuance  entered  after  the  trial  or  Hear- 
ing has  begun.  "28  Where  several  libels  are  consolidated  for 
trial,  but  one  docket  fee  can  be  taxed. ^^ 

It  has  been  held  that  in  actions  by  the  United  States,  if  the 
Government  is  successful,  a  docket  fee  of  fortj^  dollars,  which 
will  be  paid  into  the  treasury,  may  be  taxed. ^® 

In  the  Southern  district  of  IMississippi  where  several  suits  by 
the  same  plaintitfs  against  different  defendants  were  submitted 
and  tried  together  before  referees,  a  docket  fee  in  each  case  was 
a  11  owed. ^^  In  the  Second  Circuit  where  two  patent  cases  were 
tried  together  and  argued  together  upon  one  transcript  on  ap- 
peal, a  single  docket  fee  was  granted.^^ 

It  has  been  said  that  no  docket  fee  should  be  allowed  when  the 
attorney  who  appeared  and  acted  for  the  successful  party 
throughout  the  ease  was  not  admitted  to  practice  in  the  court 
where  the  case  was  pending  nor  admitted  to  practice  in  the  Su- 
preme Court  of  the  United  States  before  the  filing  of  the  general 
replication.^^  No  docket  fee  is  allowed  to  a  party,  not  an  attor- 
ney, M'ho  conducts  his  own  case.^* 

In  criminal  cases  the  defendant  is  not  chargeable  with  the  at- 
torney's docket  fees  in  the  Supreme  Court  and  the  Circuit  Court 
of  Appeals. 3^ 

By  analogy,  five  dollars  for  a  discontinuance  is  taxed  in  equity 
in  the  Second  Circuit.^^  Where,  pending  a  jury  trial,  a  case  was 
settled  by  stipulation  before  its  submission,  the  fee  for  discon- 
tinuance was  not  allowed.'"'' 

§  416e.  Attorneys'  fees  upon  depositions.  The  fee  for  taking 
a  deposition  is  allowed  for  a  deposition  taken  de  bene  esse}  or 


28  The  Bay  City,  3  Fed.  47,  per 
Mr.  .Justice  Brown.  Contra,  How- 
ler V.  Chicago,  M.  &  St.  P.  Ey.  Co., 
Ififi  Fed.  828. 

89  The  Stanley  Dollar,  C.  C.  A., 
160   Fed.   911. 

30  U.  S.  V.  Southern  Pae.  Co.,  172 
Fed.  909;  citing  U.  S.  "R.  S.,  §§824, 
8.S7,  Comp.  St.  pp.  632,  644;  29  St. 
at  L.  179,  §17,  Comp.  St.  p.  611. 

31  Switzer  v.  Home  Ins.  Co.,  46 
Fed.  .50. 

SZStefPens  v.  Steiner,  C.  C.  A., 
232  Fed.  862. 


33  Goodyear  D.  V.  Co.  v.  Osgood, 
13  Off.  Gaz.  325. 

34  Gorse  v.  Parker,  36  Fed.  840. 

35  IT.   S.   V.   Miller,   223   Fed.   183. 
36Kaenipfer    v.    Taylor,    78    Fed. 

795. 

37  Howler  v.  Chicago,  M.  &  St.  P. 
Ry.  Co.,  166  Fed.  828. 

§416e.  IWoostor  v.  Handy,  23 
Fed.  49;  Missouri  v.  Illinois,  202 
IT.  S.  598,  50  L.  ed.  1160;  Ingham 
V.  Pierce,  37  Fed.  647. 


416eJ 


ATTUKNKNS      FKE8    ll'ox    DKl'UhilTK  i.NS 


2027 


before  an  examiner,^  oi-,  aecordijig  to  some  authorities,  liefore  a 
master,^  for  use  on  the  final  liearing.  It  lias  been  held:  that  the 
fee  eannot  be  taxed  for  the  examination  of  a  witness  before  a 
master  upon  a  refei-ence  to  compute  damages  and  profits;*  nor 
for  a  deposition  taken  for  use  upon  an  interloeutoi y  api)lication, 
such  as  an  application  for  leave  to  intervene  or  a  hearing  upon 
the  intervcnor's  elaim,^  or  an  application  for  an  interlocutory  in- 
junction,^ or  an  application  to  punish  a  person  for  a  contempt,'' 
unless  it  is  subsequently  i)ut  in  evidence  at  tlic  hearing  of  the 
cause  upon  issue  joined,*  nor  for  oral  testimony  in  coui't.® 
Where  witnesses  are  recalled  ujjon  a  subsequent  day  for  further 
examination,  an  additional  attorney's  fee  cannot  be  charged  fm- 
such  second  deposition. ^° 

Jt  has  been  held  in  admiralty  that  no  fee  can  be  charged  for 
the  deposition  of  a  witness  whose  testimony  is  immaterial. ^^  The 
authorities  conflict  as  the  whether  a  party  can  tax  the  costs  of 
a  deposition  taken  in  good  faith  whicli  was  not  offered  in  evi- 
dence upon  the  trial  or  hearing.^^  'pj^g  libellant's  proctor  is  not 
entitled  to  fees  for  the  deposition  of  a  witness  whose  testimony 
was  immaterial.^^  When  the  testimony  of  several  witnesses  is 
taken  by  the  same  officer  and  returned  to  court  nnder  the  same 
enclosure,  the  testimony  of  each  witness  is  considered  as  a  sep- 
arate deposition. 1*     As  to  the  taxation  of  the  fee  for  taking  a 

2  Missouri   v.    Illinois,    202    U.    S.  9  Troy   I.   &  N.   Factory   v.   Corn- 

598,  50  L.  ed.  1160;  Hake  v.  Brown, 
44  Fed.  734. 

8  Ferguson  v.  Dent,  46  Fed.  88; 
Matheson  v.  Hanna-Sehoelkopf  Co., 
128  Fed.  162. 

4  Be  Strauss  v.  Meyer,  22  Fed. 
467 ;  Tuck  v.  Olds,  29  Fed.  883 ;  Mo. 
Pac.  Ry.  Co.  v.  Texas  &  P.  Ry.  Co., 
38  Fed.  775. 

6  Central  T.  Co.  v.  Wabash,  St. 
L.  &  P.  Ry.  Co.,  32  Fed.  684;  Mo. 
Pac.  Ry.  Co.  v.  Texas  &  P.  Ry.  Co., 
38  Fed.   775. 

6  Simpson  v.  Brooks,  3  Blatihf. 
456. 

7  Spill  V.  Celluloid  M.  Co.,  28 
Fed.  870. 

8  Indianapolis  W.  Co.  v.  Ameri- 
can S.  B.  Co.,  65  Fed.  534. 


ing,     7     Blatchf.     16;     Eriekson     v. 
Grandfield,  193  Fed.  296. 

10  Keasbey  &  Mattison  Co.  v.  Am. 
Magnesia  &  Covering  Co.,  149  Fed. 
439. 

11  Alaska  S.  S.  Co.  v.  Gilbert,  C. 
C.  A.,  236  Fed.  716. 

12  It  was  held  that  ho  can,  in 
Sloss  I.  &  S.  Co.  V.  South  Carolina 
&  G.  R.  Co.,  75  Fed.  106;  Hunter 
V.  International  Ry.  Imp.  Co.,  28 
Fed.  842;  Nead  v.  Millersburg  H. 
W.  Co.,  79  Fed.  129.  Contra,  Pin- 
son  V.  Atchison,  T.  &  S.  F.  R.  Co., 
54  Fed.  464;  The  Persiana,  158  Fed. 
912. 

13  The  Mary,  233  Fe<l.   121. 
14Broyles   v.   Buck,   37   Fed.    137. 


2028 


COSTS 


[§417 


deposition  which  is  admitted  in  evidence  in  several  suits,  the 
decisions  are  not  harmonious.  It  seems  settled  that  when,  bv 
stipulation,  a  deposition  is  taken  once  for  use  in  several  suits, 
in  each  of  which  it  is  entitled,  and  in  each  of  which  the  witness 
is  sworn,  a  deposition  fee  may  be  taxed  in  each  suit.^*  Where, 
however,  a  deposition  taken  in  one  suit  is  by  stipulation  read  in 
another,  the  rule,  except  in  the  district  of  Tennessee  ^^  and  per- 
haps in  that  of  New  Jersey,^'''  would  seem  to  be  that  the  fee  can 
only  be  taxed  in  the  first  suit.^^  i 

The  expenses  of  taking  the  deposition  cannot  be  deducted  from 
the  attorney's  fee.^^ 

It  has  been  held  that  the  fee  cannot  be  taxed  in  favor  of  a 
party  who  did  not  appear  by  an  attorney  at  the  taking  of  the 
dejiosition.'^*' 

§  417.  Fees  of  clerk  of  Supreme  Court.  The  fees  of  the  clerk 
of  the  Supreme  Court  are  fixed  by  rule  as  follows:  "For  docket- 
ing a  case  and  filing  and  indorsing  the  transcript  of  the  record, 
five  dollars.  For  entering  an  appearance,  twenty-five  cents.  For 
entering  a  continuance,  tw^enty-five  cents.  For  filing  a  motion, 
order,  or  other  paper,  twenty-five  cents.  For  entering  any  rule, 
or  for  making  or  copying  anj^  record  or  other  paper,  twenty 
cents  per  folio  of  each  one  hundred  words.  For  transferring 
each  case  to  a  subsequent  docket  and  indexing  the  same,  one 
dollar.  For  entering  a  judgment  or  decree,  one  dollar.  For 
every  search  of  the  records  of  the  court,  one  dollar.  For  a  cer- 
tificate and  seal,  two  dollars.  For  receiving,  keeping,  and  paying 
money  in  pursuance  of  any  statute  or  order  of  court,  two  per 
cent,  on  the  amount  so  received,  kept,  and  paid.     For  an  ad- 


ISWooster  v.  Handy,  23  Fed.  49, 
63;  Archer  v.  Hartford  P.  Ins.  Co., 
31  Fed.  660;  Green  v.  French,  5  N. 
J.  L.  J.  228;  L.  E.  Waterman  Co. 
V.  Lockwood,  128  Fed.  174;  British 
&  South  Am.  Steam  Nav.  Co.  v. 
Delaware,  L.  &  W.  R.  Co.,  195  Fed. 
984. 

IflJerman  v.  Stewart,  12  Fed. 
271 ;  Archer  v.  Hartford  F.  Ins.  Co., 
31  Fed.  660. 

17  Green  v.  French,  5  N.  J.  L.  J. 
228. 


ISWooster  v.  Handy,  23  Fed.  49, 
58;  Am.  Diamond  R.  B.  Co.  v.  Shel- 
don, 28- Fed.  217;  Winegar  v.  Cahn, 
29  Fed.  676;  Carey  v.  LoveU  Mfg. 
Co.,  39  Fed.  163;  British  &  South 
Am.  Steam  Nav.  Co.  v.  Delaware, 
L.  &  W.  R.  Co.,  195  Fed.  984.  See 
Be  Hughes,  257  Fed.  986. 

ISBroyles  v.   Buck,   37  Fed.    137. 

20  Winegar  v.  Cahn,  29  Fed.  676. 


§  417 J  FEES  OP  CLERK  OF  SUPREME  COURT  2029 

mission  to  the  bar  and  certificate  under  seal,  ten  dollars.  For 
l)reparing  the  record  or  a  transcript  thereof  for  the  printer, 
indexing  the  same,  supervising  the  printing,  and  distributing 
the  printed  copies  to  the  justices,  the  reporter,  the  law  library, 
and  the  parties  or  their  counsel,  fifteen  cents  per  folio;  but  when 
the  necessary  printed  copies  of  the  record,  as  printed  for  the 
use  of  the  lower  court,  shall  be  furnished,  the  fee  for  supervising 
shall  be  five  cents  per  folio.  For  making  a  manuscript  cop}-  of 
the  pecord,  when  required  under  Rule  10,  twenty  cents  per  folio, 
but  nothing  in  addition  for  supervising  the  printing.  For  issu- 
ing a  writ  of  error  and  accompanying  papers,  five  dollars.  For 
a  mandate  or  other  process,  five  dollars.  For  filing  briefs,  five 
dollars  for  each  party  appearing.  For  every  printed  copy  of  any 
opinion  of  the  court  or  any  justice  thereof,  certified  under  seal, 
two  dollars."  ^  Upon  moneys  paid  into  court  the  clerk  is  allowed 
a  commission  of  one  per  centum. ^ 

The  compensation  of  the  clerk  of  the  Supreme  Court  is  limited 
to  six  thousand  dollars  a  year.  The  balance  of  his  fees  and  dis- 
bursements over  and  above  his  necessary  clerk  hire  and  incidental 
expenses,  as  certified  by  the  Supreme  Court  or  a  justice  thereof 
appointed  by  it  for  the  purpose,  must  be  paid  into  the 
Treasury.' 

"1.  In  all  cases  the  plaintiff  in  error  or  appellant,  on  docket- 
ing a  case  and  filing  the  record,  shall  make  such  cash  deposit 
with  the  clerk,  for  the  payment  of  his  fees,  as  he  may  reriuire 
or  otherwise  satisfy  him  in  that  behalf.  2.  The  clerk  shall 
cause  aii  estimate  to  be  made  of  the  cost  of  printing  the  record, 
and  of  his  fee  for  preparing  it  for  the  printer  and  supervising 
the  printing,  and  shall  notify  to  the  party  docketing  the  case 
the  amount  of  the  estimate.  If  he  shall  not  i)ay  it  within  a 
reasonable  time,  and  for  want  of  such  payment  the  record  shall 
not  have  been  printed  when  a  ease  is  reached  in  the  regular 
call  of  the  docket,  the  case  shall  be  dismissed.  3.  Upon  pay- 
ment by  either  party  of  the  amount  estimated  by  the  clerk, 
thirty  copies  of  the  record  shall  be  printed,  under  his  super- 
vision, for  the  use  of  the  court  and  of  counsel.     4.  In  cases  of 

§417.     1  Supreme  Court  Rule  24;  8  22  St.  at  L.  60.-^.     See  U.  S.  R. 

22  St.  at  L.,  eh.  44.'i,  p.  631.  S.,  §  844. 

2  Florida    v.    Anderson,   91    U.    S. 
667,  23  L.  ed.  290. 


2030  COSTS  [§  417 

appellate  jiirisdietion  the  original  transcript  on  file  shall  be 
taken  by  the  clerk  to  the  printer.  But  the  clerk  shall  cause 
copies  to  be  made  for  the  printer  of  such  original  papers,  sent 
up  under  Rule  8,  section  4,  as  are  necessary  to  be  printed  and 
of  the  whole  record  in  cases  of  original  jurisdiction.  5.  The 
clerk  shall  supervise  the  printing,  and  see  that  the  printed  copy 
is  ])roperly  indexed.  He  shall  distribute  the  printed  copies  to 
the  justices  and  to  the  reporter,  from  time  to  time,  as  required, 
and  a  copy  to  the  counsel  for  the  respective  parties.  6.  If  the 
actual  cost  of  printing  the  record,  together  with  the  fee  of  the 
clerk,  shall  be  less  than  the  amount  estimated  and  paid,  the 
amount  of  the  difference  shall  be  refunded  by  the  clerk  to  the 
party  paying  it.  If  the  actual  cost  and  clerk's  fee  shall  exceed 
the  estimate,  the  amount  of  the  excess  shall  be  paid  to  the  clerk 
before  the  delivery  of  a  printed  copy  to  either  party  or  his  coun- 
sel. 7.  In  case  of  reversal,  affirmance  or  dismissal,  with  costs, 
the  amount  of  the  cost  of  printing  the  record,  and  of  the  clerk 'sf 
fee,  shall  be  taxed  against  the  party  against  whom  costs  are  given, 
and  shall  be  inserted  in  the  body  of  the  mandate  or  other  proper 
process.  8.  Upon  the  clerk's  producing  satisfactory  evidence, 
by  affidavit  or  the  acknowledgment  of  the  parties  or  their  sure- 
ties, of  having  served  a  copy  of  the  bill  of  fees  due  by  them,  re- 
spectively, in  this  court,  on  such  parties  or  their  sureties,  and 
attachment  shall  issue  against  such  parties  or  sureties,  respec- 
tively, to  compel  payment  of  the  said  fees."*  In  cases  of  dis- 
missal for  want  of  jurisdiction,  such  fees  are  taxed  against  the 
part.y  bringing  the  cause  into  court,  unless  the  court  otherwise 
.  directs.^  When  a  party  has  printed  the  transcript  of  the  record 
at  his  own  expense,  he  may  docket  the  case  without  giving  secur- 
ity for  the  clerk's  fees;^  but  before  the  printed  copies  are  de- 
livered to  the  Justices  or  the  parties  for  use  on  the  final  hearing, 
or  on  any  motion  in  the  progress  of  the  cause,  the  clerk  can  re- 
(|uire  the  payment  of  fifteen  cents  a  folio  for  attending  to  the 
correctness  and  proper  indexing  of  the  printed  copies  of  the 
record.''  The  same  practice  prevails  when  the  appellant  or 
plaintiff  in  error  has  furnished  the  clerk  with  twenty-five  copies 
of  part  of  the  record,  which  was  used  in  the  court  below.  State 

4  Supreme  Court  Rule   10.  6  Supreme  Court  Rule  10. 

5  Be    Amendments    to    Rules,    108  7  Bean    v.    Petterson,    110    U.    S. 
U.  S.  1,  4,  27  L.  ed.  629,  630.                   401,  28  L.  ed.  190. 


§  417a]       clerks'  kees  in  ciiu  iit  courts  ok  appeals  2031 

or  J^'ederal.  11'  llio  e-lork  (Icuiaiid  the  fees  in  advance,  lliey  must 
be  paid.*  Wlien  the  clerk  has  no  security  i'ur  fees  due  to  him 
from  a  party  entitled  to  a  mandate,  he  may  withhold  the  man- 
date until  his  fees  are  paid,  or  he  is  otiierwise  satisfied  in  that 
behalf.9 

§417a.  Fees  of  clerks  of  Circuit  Courts  of  Appeals.  The 
salaries  of  the  clerks  of  the  Circuit  Courts  of  Appeals  are  three 
thousand  dollars  a  year,  payable  in  equal  quarterly  instalments.^ 
They  must  account  for  and  pay  to  the  Tnited  States  the  fees 
collected  by  theni.'^  It  has  been  held  that  such  a  clerk  may  re- 
tain for  such  fees  five  hundred  dollars  a  year  in  addition  to 
his  salary. ^ 

Their  fees  have  been  fixed  by  the  Supreme  Court  under  stat- 
utory authority,*  as  follows:  "Docketing  a  case  and  filing  the 
record,  five  dollars.  Entering  an  appearance,  twent^'-five  cents. 
Transferring  a  case  to  the  printed  calendar,  one  dollar.  Entei-- 
ing  a  continuance,  twenty-five  cents.  Filing  a  motion,  order  or 
other  paper,  twenty-five  cents.  Entering  any  i-ule  or  making  or 
copying  any  record  or  other  paper,  for  each  one  hundred  words, 
twent}^  cents.  Entering  a  judgment  or  decree,  one  dollar.  Every 
search  of  the  records  of  the  court  and  certifying  the  same,  one 
dollar.  Afilixing  a  certificate  and  a  seal  lo  any  paper,  one  dol- 
lar. Receiving,  keeping  and  paying  money,  in  pursuance  to  any 
statute  or  order  of  court,  one  per  cent,  on  the  amount  so  re- 
ceived, kept  and  paid.  Preparing  the  record  for  the  printer, 
indexing  same,  supervising  and  printing  antl  distributing  the 
copies,  for  each  printed  page  of  the  record  and  index,  twenty- 
five  cents.  Making  a  manuscript  copy  of  the  record,  when  re- 
quired l)y  the  rules,  for  each  one  hundred  words,  but  nothing 
in  addition  for  supervising  llu-  printing,  Iwenly  cents.  Issuing 
a  writ  of  eri-or  and  accompanying  papers  or  a  nuuidate  or  other 
process,  five  dollars.  Filing  l)riefs  for  each  party  appearing, 
five  dollars.  Copy  of  an  opinion  of  the  court,  certified  under 
seal,  for  each  printed  page,  but  not  to  exceed  five  dollars  in  the 

SSteever   v.   Rieknian,    109    U,  S.  2  Ibid. 

74,  27  L.  ed.  861.  3  Morton   v.   U.   S.,   59   Fed.   349; 

9  0sborn  v.  U.  S.,  131  U.  S.  U.  S.  v.  Morton,  C.  C.  A.,  65  Fed. 
cxxxvii,  23  L.  ed.  871.  204. 

§  417a.     1  26  St.  at  L.  826.  4  29  St.  at  L.  536. 


2032  COSTS  [§417a 

whole  for  any  copy,  one  dollar. ' ' '  When  a  rule  of  a  Circuit 
Court  required  the  records  in  equity  cases,  upon  demurrers  and 
upon  rules  to  show  cause  to  be  printed  under  the  clerk's  super- 
vision, and  the  clerk  was  accustomed  in  each  case  to  procure 
extra  copies  of  the  record  as  so  printed  and  to  use  one  of  them 
for  the  transcript  returned  to  the  Circuit  Court  of  Appeals,  he 
was  obliged  to  account  to  the  Government  for  all  received  from 
litigants  for  such  transcripts.^ 

By  the  Act  of  February  13,  1911:  "In  any  cause  or  pro- 
ceeding wherein  the  final  judgment  or  decree  is  sought  to  be  re- 
viewed on  appeal  to,  or  "by  writ  of  error  from,  a  United  States 
Circuit  Court  of  Appeals  the  appellant  or  plaintiff  in  error 
shall  cause  to  be  printed  under  such  rules  as  the  lower  court 
shall  prescribe,  and  shall  file  in  the  office  of  the  clerk  of  such 
Circuit  Court  of  Appeals,  at  least  twenty-five  printed  transcripts 
of  the  record  of  the  lower  court,  and  of  such  part  or  abstract  of 
the  proofs  as  the  rules  of  such  Circuit  Court  of  Appeals  may 
require,  and  in  such  form  as  the  Supreme  Court  of  the  United 
States  shall  by  rule  prescribe,  one  of  which  printed  transcripts 
shall  be  certified  under  the  hand  of  the  clerk  of  the  lower  court 
and  under  seal  thereof,  and  shall  furnish  three  copies  of  such 
printed  transcript  to  the  adverse  party  at  least  twenty  days 
before  such  argument:  Provided,  That  either  the  court  below 
or  the  Circuit  Court  of  Appeals  may  order  any  original  docu- 
ment or  other  evidence  to  be  sent  up  in  addition  to  the  printed 
copies  of  the  record  or  in  lieu  of  printed  copies  of  a  part  thereof ; 
and  no  written  or  typewritten  transcript  of  the  record  shall 
be  required. ' '  ' 

"In  any  cause  or  proceeding  wherein  the  final  judgment  or 
decree  is  sought  to  be  reviewed  on  appeal  to  or  by  writ  of  error 
or  of  certiorari  from  the  Supreme  Court  of  the  United  States, 
in  which  the  record  has  been  printed  and  used  upon  the  hear- 
ing in  the  court  below  and  which  substantially  conforms  to 
the  printed  record  in  said  Supreme  Court,  if  there  have  been 
at  the  time  of  filing  the  record  in  the  court  below  twenty-five 
copies  of  said  printed  record,  in  addition  to  those  provided  in 
the  preceding  section,  lodged  with  the  clerk  of  the  court  below, 

6168  U.  S.  720;  150  Fed.  cxxxix.  7  July  10,  1911,  36  St.  at  L.  901. 

6U.  S.  V.  Oliphant,  C.  C.  A.,  230 
Fed.  1. 


§  417a]       clerks'  pees  ix  circuit  cofrts  op  appeals  2033 

one  copy  thereof  shall  he  used  hy  the  clerk  of  the  court  below 
in  the  preparation  and  as  a  part  of  the  transcript  of  the  record 
of  the  court  below;  and  no  fee  shall  he  allowed  the  clerk  of  the 
court  below  in  the  preparation  of  the  transcript  for  such  part 
thereof  as  is  included  in  said  printed  record  so  lodgred  with  him. 
And  the  clerk  of  the  court  below  in  transmittinor  the  transcript 
of  record  to  the  Supreme  Court  of  the  United  States  for  review 
shall  at  the  same  time  transmit  the  remaining  uncertitied  copies 
of  the  printed  record  so  lodged  with  him,  which  shall  be  used 
in  the  preparation  and  as  a  part  of  the  printed  record  in  the 
Supreme  Court  of  the  United  States,  and  the  clerk's  fee  for  pre- 
paring the  record  for  the  printer,  indexing  the  same,  supervising 
the  printing  and  binding  and  distributing  the  copies  shall  be 
at  such  rate  per  folio  thereof,  exclusive  of  the  printed  record  so 
furnished  by  the  clerk  of  the  court  below,  as  the  Supreme  Court 
of  the  United  States  may  from  time  to  time  by  rule  prescribe; 
and  no  written  or  typewritten  transcript  of  so  much  of  the 
record  shall  have  been  printed  as  herein  provided  shall  he  I'e- 
quired."* 

This  statute  abrogates  the  fee  bill  prescri])ed  by  the  Supreme 
Court  to  the  extent  to  which  it  applies.^  The  statute  applies 
to  a  decree  for  an  injunction  and  an  accounting,^®  althougli  it 
may  not  apply  to  appeals  from  every  interlocutory  decree. ^^ 
It  has  been  held  in  the  Sixth  (Mrcuit  not  to  apply  to  an  api)eal 
fi-om  an  order  granting  a  preliminary  injunction  upou  afti- 
davit.^'^  It  applies  to  appeals  from  and  writs  of  error  to  adjudi- 
cations in  bankruptcy-  ^^  and  to  appeals  and  petitions  of  revision 
in  bankruptcy  proceedings.^* 

The  statute  abolishes  the  fee  of  twenty-five  cents  a  folio  for 
preparing  an  index  when  tlie  index  has  been  i)repared  by  the 
clerk  below  in  pursuance  of  a  rule  in  the  District  Court. ^^ 

8  Ibid.,    §  2,   see   Toledo   St.   L.   &  12  Ibid. 

K.  C.  Ry.  Co.  V.  Continental  Tr.  Co.,  13  Ibid. 

176  U.  S.  219,  44  L.  ed.  442.  1*  Re  Burr  Mfg.  Co.,  C.  C.  A..  215 

9Rainey   v.    W.   R.    Grace   &    Co.,  Fed.  898. 
2;{1  U.  S.  704.  1^  Rainey   v.   W.   R.   Grace  &   Co., 

lOLovell    McConnell    Mfg.    Co.    v.  2.31  U.  S.  704;  Smith  v.  Farbenfab- 

Auto   Supply    Mfg.    Co.,    2.35    U.    S.  riken    of    Elberfeld    Co.,    C.    C.    A., 

383;    Smith    v.    Farbenfrabriken    of  97   Fed.   894.     Contra,  Colts  Patent 

Elberfeld  Co.,  C.  C.  A.,  197  Fe.l.  894.  Firearms  Mfg.  Co.  v.  N.  Y.  S.  Goods 

11  Ibid.  Co.,  C.  C.  A.,  186  Fed.  625. 


2034  COSTS  L§4i7b 

§  417b.  Fees  of  clerk  of  Court  of  Customs  Appeals.     The 

Supreme  Court  has  ordered:  "that  the  following  table  of  fees  to 
be  charged  in  the  United  States  Court  of  Customs  Appeals  be, 
and  the  same  is  hereby,  adopted  and  approved,  viz. :  The  fees 
of  the  clerk  of  the  court  shall  be  six  dollars  in  each  case.  No 
fee  shall  be  exacted  in  cases  on  appeal  to  other  Federal  Courts 
and  transferred  to  tbis  court  for  tinal  determination.  There 
shall  be  paid  for  each  certificate  of  admission  of  an  attorney  to 
practice  one  dollar,  and  for  making  or  copying  any  record  or 
otber  paper  and  certifying  the  same  fifteen  cents  per  folio  of 
one  bundred  words.  An  amount  sufficient  to  cover  the  cost  of 
printing  the  record  shall  be  deposited  with  the  clerk  on  his  de- 
mand, provided  that  when  an  appeal  is  taken  by  the  United 
States  no  payment  of  fees  shall  be  required.  In  all  other  cases 
fees  shall  be  paid  in  advance.  It  is  further  ordered  that  the 
fees  and  costs  to  be  allowed  to  the  marshal  shall  be,  and  hereby 
are,  fixed  the  same  as  those  allowed  to  the  marshal  of  the  Su- 
preme Court  of  the  Ignited  States.''  ^ 

§  417c.  Fees  of  clerks  of  District  Courts.  By  the  Act  of  June 
12,  1917,  for  the  calendar  year  nineteen  hnndred  and  seventeen, 
and  thereafter,  "the  maximum  personal  compensation  of  clerks 
of  United  States  District  Courts  shall  in  no  case  exceed  $3,500 
per  annum,  and  tliat  single  fees  only  shall  be  charged  by  United 
States  marshals  and  clerks  of  United  States  District  Courts 
against  the  United  States  and  against  private  litigants  in  every 
judicial  district."  ^ 

The  fees  of  the  clerks  of  the  District  Courts  are  fixed  by  stat- 
nte  as  follows:  "Foi-  issuing  and  entering  every  process,  com- 
mission, summons,  capias,  execution,  warrant,  attachment  or 
other  writ,  except  a  writ  of  venire,  or  a  summons  or  subpoena 
for  a  witness,  one  dollar.^  For  issuing  a  writ  of  summons  or 
snbiMvna.  twenty-five  cents.3     Foi-  filing  and  entering  every  dec- 

§4171).     1  Order   of   V.    S.    S.    C.,  rich  v.  U.  S.,  47  Fed.  267;   Jones  v. 

May  :n,  1910,  217  U.  S.  611.  U.  S.,  39  Fed.  410. 

§417c.     140  St.  at  L.  157;  Comp.  3  U.   S.   R.   S.,    §828.     See  Erwin 

St.  §  1404a.     As  to  fees  in  natural!-  v.  U.  S.,  2  L.E.A.  229,  37  Fed.  470; 

zation   proceedings   see   Robb   v.    U.  V.  S.  v.  Van  Duzee,  140  U.  S.   169, 

S.,  C.  C.  A.,  233  Fed.  525.  176,   35   L.   ed.   399,   401;    Jones   v. 

2U.   S.   R.   S.,    §828.      See   (!ood-  U.  S.,  39  Fed.  410. 


§  417c] 


clerks'  fees  in  district  courts 


2035 


laration.  plea,  or  other  i)aper,  ten  cents.*  For  administering  an 
oath  or  at^Hrination,  except  to  a  juror,  ten  cents.*  For  taking  an 
acknowledgment,  twenty-tive  cents. ^ 

For  taking  and  certifying  depositions  1o  tile,  twenty  i-ents  for 
each  folio  of  one  hundred  words.''  For  a  copy  of  such  deposition 
furnished  to  a  party  on   reciucst,  ten  cents  a  folio."'*     A  party 


4  U.    S.   R.   S.,    §  828.      So    far   as 
the   clerk 's    fees   are   concerned,    no 
paper    is    considered    filed    unless    it 
has   the   proper   indorsement   by   the 
clerk;    and    the    mere    placing   of   a 
paper    in    the    court    papers    is    no 
filing.     Erwin  v.  IT.  S.,  2  L.R.A.  229, 
37  Fed.  470,  484;  Henry  Amy  &  Co. 
V.  Shelby  County,  1  Flip.  104.     But 
the  failure  of  the  clerk  to  mark  as 
filed   a  paper   left   in   his   office    for 
that    purpose    cannot    prejudice    the 
party    who    has    given    it    to    him. 
Phinney    v.    Mutual    Life    Ins.    Co., 
178  U.  S.  327,  336,  44  L.  ed.  1088, 
1092.     "When   it  is  necessary  to  en- 
ter on  the  calendar  a  note  of  such 
filing,   an   additional    fee   of   fifteen 
cents  is  allowed.     Erwin  v.  TJ.  S.  2 
L.R.A.  229,  37  Fed.  470,  484.     The 
clerk   is   not    entitled    to   a    fee   for 
filing   vouchers    attached    to    an    ac 
count.      IT.    S.   V.   Jones,   147   U.    S. 
672,  37  L.  ed.  325;  U.  S.  v.  Payne, 
147  TJ.  S.   687,  37  L.  ed.  332.     Sec 
TJ.  S.  V.  Van  Duzee,  140  U.  S.  169, 
35  L.  ed.  399;  TJ.  S.  v.  McCandless. 
147  TJ.  S.  692,  37  L.  ed.  334;  U.  S. 
V.  Taylor,  147  TJ.  S.  695,  37  L.  ed. 
335;  Goodrich  v.  IT.  S.,  47  Fed.  267; 
Dimmick  v.  U.   S.,  36   Fed.  82.     If 
two    or    more    depositions    are    em- 
braced in  a  single  paper  or  a  series 
of    sheets    attached    together    tliey 
form  but  a   single  paper  within  the 
meaning  of  the  law.     T^.  S.  v.  Bar- 
ber,  140   U.   S.   164,  168,   35   L.  ed. 
396.    398,    per    Mr.    .lusti.-o    Brown. 
Tt    has    l>een    held    that    wliere    tlu' 


statutes  are  silent  as  to  what  pa 
pers  shall  be  filcil,  that  rests  in  the 
discretion  of  the  judge  of  the  court 
of  first  instance  and  his  decision  will 
not  be  reviewed  upon  appeal.  There 
the  clerk,  under  the  direction  of  the 
judge,  filed  separately  15,621  vouch- 
ers filed  with  the  reports  of  re- 
ceivers, and  charged  10c  apiece,  in 
the  aggregate  $1,562.10,  for  such 
filing.  The  judge  overruled  the  ob- 
jection of  the  parties:  that  the 
vouchers  should  not  be  filed,  or,  if 
filed  since  they  were  in  bundles, 
should  be  filed  in  a  bundle  as  one 
paper.  Pennsylvania  Co.  for  Insur- 
ance etc.  V.  Jacksonville,  T.  &  K. 
W.  Ry.  Co.,  66  Fed.  421. 

5  U.  S.  R.  S.,  §  828.  See  U.  S. 
V.  Taylor,  147  U.  S.  695,  37  L.  ed. 
335;  TJ.  S.  v.  Van  Duzee,  140  TJ.  S. 
169,  35  L.  ed.  399;  Fuller  v.  TJ.  S., 
58  Fed.  329. 

6U.  S.  R.  S.,  §828;  U.  S.  v. 
Barber,  140  U.  S.  17,  35  L.  ed.  398. 

7  U.  S.  R.  S.,  §  828.  Where  a 
suit  is  voluntarily  dismissed  by  tlie 
complainant,  without  a  submission 
or  hearing,  on  a  settlement  of  the 
case  ait  complainant's  cost,  with 
consent  of  the  defendant  and  the 
attorneys  of  both  parties,  the  so- 
licitor 's  fees  for  taking  depositions 
are  not  allowable;  but  the  clerk's 
fees  are  a  proper  charge  under  a 
decree  dismissing  the  case  at  com- 
]>lainant  's  cost.  Calm  v.  Qung  Wah 
Lung,  28  Fed.  396. 

8  U.  S.  R.  S.,  §  828. 


2036 


COSTS 


[§417c 


may  tax  the  fee  paid  for  a  copy  of  his  own  deposition,  for  use 
in  printing  the  evidence,  as  required  by  a  rule.^ 

"For  entering  any  return,  rule,  order,  continuance,  judgment, 
decree,  or  recognizance,  or  drawing  any  bond,  or  making  any 
record,  certificate,  return,  or  report,  for  each  folio,  fifteen 
cents. ' '  ^^  Where  the  number  of  words  is  less  than  one  hundred, 
they  are  counted  a  folio  and  as  such  entry  is,  in  fact,  a  record, 
it  was  held  that  the  departmental  construction  is  the  proper  one, 
which  gives  the  clerk  ten  cents  for  filing  a  paper,  and  fifteen 
cents  for  the  record  entry  in  the  calendar.^^ 

A  judgment  is  an  order  of  the  court  within  the  meaning  of 
the  fee  bilL^^ 

An  entry  on  the  calendar  ^^  and  a  list  of  jurors  required  by 
the  practice  to  be  posted  or  preserved  ^*  is  the  making  of  a 
record  for  which  a  fee  may  be  chargeil.  In  addition  to  the  stat- 
utory fee  for  receiving,  keeping  and  paying  out  mone.y  the  clerk 
can  make  this  charge  per  folio  for  each  order  or  receipt  entered 
or  filed  in  connection  with  such  receipt  or  payment. ^^  This 
fee  is  also  given  for  making  a  return  to  the  court  of  review.^^ 


9  Brewster  v.  Shiiler,  38  Fed.  549 ; 
U.   S.   V.   Wilson,   193   Fed.    1007. 

10  U.  S.  R.  S.,  §  828.  See  Erwin 
V.  U.  S.,  2  L.E.A.  229,  37  Fed.  470. 

11  Amy  V.  Shelby  County,  1  Flip. 
104.  But  see  U.  S.  v.  Kurtz,  164 
U.    S.   49,   41    L.    ed.    346. 

12  Blake  v.  Hawkins,  19  Fed. 
204.  See  Davis  v.  U.  S.,  45  Fed. 
162;  Goodrich  v.  U.  S.,  42  Fed.  392; 
U.  S.  V.  Taylor,  147  U.  S.  696,  37 
L.  ed.  336;  U.  S.  v.  Payne,  147  U. 
S.  687,  37  L.  ed.  332;  U.  S.  v.  Van 
Duzee,  140  U.  S.  169,  35  L.  ed.  399; 
Marvin  v.  U.  S.,  44  Fed.  405;  Er- 
win V.  TJ.  S.,  2  L.R.A.  229,  37  Fed. 
470;  Jones  v.  U.  S.,  39  Fed.  410; 
U.  S.  V.  Converse,  63  Fed.  423 ;  Ful- 
ler V.  U.  S.,  58  Fed.  329.  The  clerk 
of  the  United  States  District  Court 
for  the  District  of  New  Jersey  is 
entitled  to  collect  from  the  plain- 
tiff, in  an  action  at  law,  fees  for 
recording  the  proceedings  and  judg- 


ments therein  in  favor  of  plaintiff; 
because  U.  S.  R.  S.,  §  914,  provides 
that  the  pleadings  and  forms  and 
modes  of  proceedings  in  civil  causes, 
other  than  equity  and  admiralty,  in 
the  District  Courts  of  the  United 
States,  shall  conform  as  nearly  as 
may  be  to  the  forms  and  modes  of 
procedure  in  like  causes  in  the  States 
where  such  courts  are  held,  and 
§  76  of  the  New  Jersey  General 
Statutes  provides  that  when  any 
civil  action  shall  have  been  deter- 
mined, the  clerk  of  the  court  shall 
enter  all  the  proceedings,  including 
the  judgment,  in  a  book  of  records 
to  be  kept  for  that  purpose.  Mor- 
rison V.  Bernard  's  Tp.,  35  Fed.  400. 

13  Amy  v.  Shelby  County,  1  Flip- 
pin   104. 

14  Ibid. 

15  U.   S.   V.  Kurtz,   164   U.   S.   49, 
52. 

16  Mohrstadt  v.   Mutual  Life  Ins. 


§417c] 


CI.EKKS     FEES  IN  DISTRICT  COURTS 


2037 


Where  an  api)ellant  lias  filed  a  supersedeas  bond,  the  clerk  can- 
not, as  a  condition  of  his  certifyingr  and  forwardinjr  the  Iran- 
script,  re(iuire  him  to  pay  the  fees  which  were  dne  1o  him  and  the 
marshal  before  the  appeal. i' 

The  Act  of  Fpl)rnary  13,  1911,  i)revionsly  (juoted.^^  docs  not 
deprive  the  clerk  of  this  fee  for  certifying  to  a  })rinted  transcript 
for  the  appellant  or  plaintifl'  in  error.^^  Where  an  excessive 
fee  is  collected  for  such  a  service,  the  clerk  nnist  account  there- 
for and  pay  it  to  the  treasurer.^® 

The  clerk  may  charge  fees  in  an  equity  cause,  as  to  absent  de- 
fendants, as  to  whom  the  case  is  continned.^^  Where  a  case, 
after  being  referred  to  an  auditor,  is,  with  the  sanction  of  the 
court,  settled  by  the  parties,  and  entry  made,  "Dismissed,  at  de- 
fendant's costs  by  consent,"  the  process  and  pleadings  in  the 
State  court,  together  with  the  proceedings  for  removal  sent  up 
in  the  transcript,  and  the  pi-oceedings  in  the  Federal  court, 
should  be  entered  upon  the  final  record;  and  the  clerk  may  prop- 
erly charge  fifteen  cents  per  folio  for  each  entry. ^^  ^he  clerk  is 
entitled  to  ten  and  not  to  fifteen  cents  per  folio  for  transcripts 
of  a  record.'^^    A  transcript  is  a  copy.^* 

Upon  the  admission  of  an  attorney  to  the  bar,  not  more  than 
one  dollar.^^ 

"For  making  dockets  and  indexes,  issuing  venire,  taxing  costs,' 
and  all  other  services,  on  the  trial  or  argument  of  a  cause  where 
issue  is  joined  and  testimony  is  given  three  dollars. ^^    For  mak- 


Co.,  145  Fed.  751;  Hoystradt  v. 
Delaware,  L.  &  W.  K.  R.,  182  Fed. 
880. 

17  Jennings  v.  Johnson,  C.  C.  A., 
148    Fed.    a.-??. 

18:^6  St.  at  L.  901,  supra,  §417a. 

19  Sarfert  Co.  v.  Chipman,  205 
Fed.  93;  U.  S.  v.  Oliphant,  C.  C. 
A.,  2.30  Fed.  1. 

20  U.  S.  V.  Oliphant,  C.  C.  A.,  2.30 
Fed.  1. 

21  Ex  parte  Lee,  4  Cranch,  C.  C. 
197. 

22  Blain  v.  Home  Ins.  Co.,  30  Fed. 
667. 

23  Cavender  v.  Cavender,  3  Mc- 
Crary,  383.     See  Erwin  v.  U.   S.,  2 

Fed.  Prai-.  Vol.  11—58 


L.R.A.  229,  37  Fed.  470,  490;  Jones 
V.  U.  S.,  39  Fed.  410;  U.  S.  v.  Van 
Duzee,  140  U.  S.  169,  35  L.  ed.  399; 
U.  S.  V.  MeCandless,  147  U.  S.  rt92, 
37  L.  ed.  334;  U.  S.  v.  Taylor,  147 
T'.  S.  695,  37  L.  ed.  335. 

24  Ibid. 

26  32  St.  at   L.   476. 

26  U.  S.  R.  S.,  §  828.  See  U.  S. 
V.  Payne,  147  U.  S.  687,  37  L.  ed. 
332;  U.  S.  V.  King,  147  U.  S.  676, 
37  L.  ed.  328;  U.  S.  v.  Van  Duzee, 
140  U.  S.  169,  35  L.  ed.  399;  U.  S. 
V.  MeCandless,  147  F.  S.  692,  37  L. 
ed.  334;  Erwin  v.  U.  S.,  2  L.R.A. 
229.  37  Fed.  470. 


2038 


COSTS 


[§417c 


ing  dockets  and  indexing,  taxing  costs,  and  all  other  services,  in 
a  cause  where  issue  is  joined,  but  no  testimony  is  given,  two 
dollars."'^'  It  has  been  held  in  the  Ninth  Circuit  that  the  peti- 
tioner in  an  application  for  the  writ  of  Jwheas  corpus  may  be 
obliged  to  pay  eleven  dollars  for  all  services  in  the  proceedings ; 
but  that  the  court  has  discretion  to  allow  no  costs  or  fees  in  such 


a  case 


28 


For  making  dockets  and  indexes,  taxing  costs,  and  other  serv- 
ices, in  a  cause  which  is  dismissed  or  discontinued,  or  where 
judgment  or  decree  is  made  or  rendered  without  issue,  one  dol- 
Iar.2^  For  making  dockets  and  taxing  costs,  in  cases  removed  by 
writ  of  error,  or  appeal,  one  dollar.^''  For  affixing  the  r.eal  of 
the  court  to  any  instrument,  when  required,  twenty  cents.'^ 

For  every  search  for  any  particular  mortgage,  judgment,  or 
other  lien,  fifteen  cents.^^  For  searching  the  record  of  the  court 
for  judgments,  decrees  or  other  instruments  constituting  a  gen- 
eral lien  on  real  estate,  and  certifying  the  result  of  such  search, 
fifteen  cents  for  each  person  against  whom  such  search  is  re- 
quired to  be  made."  ^^ 

It  has  been  held  that  the  clerk  is  liable  for  the  damages  which 
are  the  proximate  result  of  a  negligent  search  by  him.^* 

As  the  statutes  do  not  expressly  provide  for  compensation  to 
the  clerk  searching  for  petitions  in  bankruptcy,  it  has  been  held 
that  a  reasonable  compensation  for  such  services  is  fifteen  cents 
for  each  name  against  which  search  is  made.^^  The  clerk  of  the 
District  Court,  instead  of  certifying  the  result  of  a  search  for 
liens  on  the  original  requisition  delivered  to  him,  may,  and  per- 


87  U.  S.  R.  S.,  §  828. 

2iEe  Moy  Chee  Kee,  33  Fed.  377. 

29  U.  S.  R.  S.,  §828;  U.  S.  v. 
Kurtz,  164  U.  S.  49,  41  L.  ed.  346; 
U.  S.  V.  Van  Duzee,  140  U.  S.  169, 
35  L.  ed.  399;  Van  Duzee  v.  U.  S., 
41   Fed.   571. 

30  U.  S.  R.  S.,  §828.  The  clerk's 
fee  of  one  dollar  for  filing  the  note 
of  issue  when  placing  an  appeal  in 
admiralty  on  the  calendar  was  tax- 
able, and  the  clerk  could  charge  for 
including  the  evidence  in  the  record 
on    the    final    decree    in    admiralty. 


The  Alice  Tainter,  14  Blatchf.  225, 
227. 

81 U.  S.  R.  S.,  §  828.  See  Taylor 
V.  IT.  S.,  45  Fed.  531 ;  U.  S.  v.  Van 
Duzee,  140  U.  S.  169,  35  L.  ed.  399 ; 
Marvin  v.  XJ.  S.,  44  Fed.  405;  Fuller 
V.  U.  S.,  58  Fed.  329. 

32  U.  S.  R.  S.,  §  828. 

33  U.  S.  R.  S.,  §828;  Be  Wood- 
bury, 7  Fed.  705;  Marvin  v.  U.  S., 
44  Fed.  405. 

34  Selover  v.  Sheardown,  73  Minn. 
393,  72  Am.  St.  Rep.  627;  s.  c,  76 
N.  W.  50. 

36  Matter  of  Vermeule,  10  Ben.  1. 


^41(cJ  CLKUKS"   FKKS   IX   DISTUICT  COLKT8  2().jJ) 

Imps  should,  file  siurli  re<|nisition,  and  give  the  certificate  of  the 
result  of  the  search  on  aimthci-  paper.  A  cliai'<re  of  ten  cents  for 
filing  such  paper  is  proper. ^^  ;ind  so  also  is  a  charge  of  fifteen 
cents  for  each  person  against  whom  a  search  is  required  to  be 
made,  as  compensation  for  making  the  search,  and  for  the  act  of 
signing  the  certificate  and  certifying  the  result.^'  A  compen.sa- 
tion  of  fifteen  cents  per  folio  for  making  the  certificate  is  proper; 
but  not  a  charge  for  affixing  the  seal  of  the  court  to  such  certifi- 
cate, unless  required.^* 

"For  receiving,  keeping,  and  paying  out  money,  in  pursuance 
of  any  statute  or  order  of  court,  one  per  centum  on  the  amount 
so  received,  kept,  and  paid."^^  Where  an  intervenor  recovers 
part  of  a  fund  in  court  the  clerk's  poundage  on  the  part  so  re- 
covered is  properly  deducted  1heref)-om.*®  The  clerk  is  entitled 
to  the  fee  n])on  money  dc])Osited  for  bail  under  a  criminal  in- 
dictment.*^ It  has  been  held  that  this  charge  covers  money  col- 
lected by  the  marshal  on  executions. ^^  These  commissions,  when 
due  out  of  a  fund  in  ihc  liaiuls  of  a  pul)lic  officer,  must  be  paid 
in  the  first  instance  into  the  treasury.*^ 

It  has  been  held:  that  this  charge  cannot  be  made  for  the  serv- 
ices of  tlie  clerk  when  he  acts  as  disti-ibuting  agent  under  the 
direction  of  the  court.** 

Where  a  tru.stee  in  bankruptcy  files  a  bill  in  the  District  Court 
to  settle  conflicting  claims  to  the  proceeds  of  a  sale,  it  is  not 
his  duty  to  pay  the  proceeds  into  the  registry  of  the  court ; 
and  consequently  the  clerk  is  not  entitled  to  commissions  on 
such  money.*^  ]\loney  deposited  for  distribution  upon  a  com- 
position in  bankruptcy  need  not  be  deposited  with  the  clerk  nor 
is  he  then  entitled  to  commissions  thereupon.*^  It  has  been  held 
that  the  fact  that  the  money  is  sub.iect  to  the  decree  of  the 
court,  it  not   being  in  the  court's  i-egistry,  is  not  enough  to  give 

SeEx    parte    Wooilhiny,    7    lV(f.  40  Leary   v.   U.   S.,   C.   C.   A.,   257 

705.  Fed.  246. 

37  Ibid.  41  Beekman    v.    U.    S.,   250    U.    S. 

3&Ex    parte    Woodbury     7     Fed.  114. 

705;   U.  S.  V.  Van  Diizoe,  140  U.  S.  42  Fajraii  v.  Ciilleu,  28  Fed.  84.1. 

169,  85  L.  ed.  .'{99.  48  U.   S.   v.  Wolters,  51  Fed.  896. 

89  U.  S.  R.  S.,   §828.     In  Cafifor-  Contra,  U.  S.  v.  Cigars,  2  Fed.  494. 

nia   two   per   centum.     U.   S.   R.   S.,  44  He  Newl)old,  244  Fed.  888, 

8  840;    U.    S.    v.    Walters,    51    Fed.  46  Leacfi  v.  Kay.  2  Flip.  C.  C.  590. 

896.  46  The  Adula,  127  Fed.  849. 


2040  COSTS  [§  417c 

the  clerk  a  right  to  commissions.*"^  But  a  subsequent  decision 
holds  that  money  deposited  in  a  bank,  under  a  decree  of  the  court, 
and  subject  to  its  order,  is  within  the  meaning  of  chapter  20  of 
the  acts  of  1793,  which  provides  that  the  clerk  shall  be  entitled 
to  a  percentage  on  "all  money  deposited  in  court.""  He  is 
not  entitled  to  this  commission  upon  a  fund  paid  by  a  master 
into  a  United  States  depository,  subject  to  the  order  of  the 
eourt.*^  Nor  upon  funds  paid  to  and  disbursed  by  court  com- 
missioners ;  5®  or  by  receivers  who  have  deposited  the  same  sub- 
ject to  the  order  of  the  court  in  a  bank  which  is  not  a  United 
States  depository.51  Railroad  bonds  deposited  in  a  Circuit  Court 
as  collateral  security  by  its  order,  and  kept  in  a  bank  vault  to 
which  the  clerk  keeps  the  key,  are  not  "money,"  and  the  clerk 
is  not  entitled  to  a  commission  thereon,  when  by  order  of  the 
court  he  takes  them  from  the  bank  and  surrenders  them  to  the 
depositor;  nor  is  there  any  authority  outside  of  the  statute  for 
the  allowance  of  such  a  commission.^^  t}^^  money  must  either 
actually  or  constructively  pass  through  the  clerk's  hands.^' 
Money  received  by  a  master  in  chancery  in  payment  for  prop- 
erty sold  upon  the  foreclosure  of  a  mortgage,  may  be  deposited 
with  a  designated  depository  of  the  United  States,  and  the  clerk 
is  then  entitled  to  his  commission  thereon.^*  But  money  paid  by 
a  bidder  at  such  a  sale  as  security  for  his  compliance  with  his 
bid  may  by  order  of  the  court  be  paid  in  a  certified  check  on  a 
bank,  and  deposited  in  a  trust  company,  and  then  the  clerk  is 
not  entitled  to  a  commission  thereon.^* 

A  clerk  who  receives,  keeps,  and  paj's  out  money  under  a  judg- 
ment is  entitled  to  a  commission  of  one  per  cent,  on  the  amount 
so  received  the  same  to  be  paid  by  the  defendant  as  a  part  of 
the  costs.^^  The  court  allowed  the  clerk  extra  compensation  to 
the  amount  of  one-half  of  one  per  cent.,  for  transferring  a  large 
fund  from  the  depository  of  the  mint  to  a  trust  compan}-.^''' 

"For  traveling  from  the  office  of  clerk  where  he  is  required  to 

47  Ex  parte  Plitt,  2  Wall.  Jr.  453.  62  Ibid. 

48  Ex  parte  Preseott,  2  Gall.   146.  63  Leech  v.  Kay,  4  Fed.  72. 

49  Michigan  Cent.  K.  Co.  v.  54  Thomas  v.  Chicago  &  C.  S.  Ry. 
Harsha,  C.  C.  A.,  134  Fed.  217.  Co.,  37  Fed.  548. 

60S.   Morgan   Smith  Co.   v.  Rock-  65  Easton  v.  H.  &  T.  C.  Ry.  Co., 

ingham  Power  Co.,  173  Fed.  923.  44  Fed.  718. 

61  Edwards  v.  Bay  State  Gas  Co.,  66  Blake  v.  Hawkins,  19  Fed.  204. 

177  Fed.  573.       '  67  The  Advance,  60  Fed.  422. 


§418]  marshals'   FEES  2041 

reside  to  the  place  of  holding  any  court  as  required  by  law  to  be 
held,  five  cents  a  mile  for  going,  and  five  cents  a  mile  for  return- 
ing, and  five  dollars  a  day  for  his  attendance  on  the  court  while 
actually  in  session. "  ^^ 

"In  bankruptcy  proceedings  clerks  shall  respectively  receive 
as  full  compensation  for  their  service  to  each  estate  a  filing 
fee  of  ten  dollars,  except  when  a  fee  is  not  required  from  a  volun- 
tary bankrupt.  "S^  They  also  receive  for  certificates  of  search 
for  petitions  and  discharges  in  bankruptcy  the  same  fees  as  for 
certificates  for  judgments.^o 

It  has  been  held  that  the  taxable  costs  earned  by  clerks,  mar- 
shals and  commissioners  are  their  individual  property,  not  that 
of  the  parties  to  the  cause,"  and  that  the  parties  cannot  by  an 
agreement  as  to  set-off,  or  otherwise,  deprive  the  clerk  or  other 
creditors  of  any  lien  or  right  to  collect  their  paid  fees.^a  It  has 
been  said :  that  the  legal  title  to  costs,  including  the  fees  of  clerks 
and  other  officers,  is  in  the  successful  party;  but  that  he  holds 
the  same  as  trustee,  and  the  officers  may  recover  them  in  his 
name.^3  Where  the  clerk,  through  a  mistake,  collected  less  than 
his  legal  fees  from  a  party  who  afterwards  succeeded  in  the 
case,  he  subsequently  was  allowed  to  collect  the  remainder  from 
the  unsuccessful  party,  but  not  from  him  who  had  originally  re- 
quested the  service.^* 

§418.  Marshals'  fees.  "The  marshal  of  the  Supreme  (Jourt 
of  the  United  States  shall  be  entitled  to  receive  for  the  service 
of  any  warrant,  attachment,  summons,  capias,  or  other  writ,  ex- 
cept execution,  venire,  or  a  summons,  or  subpoena  for  a  witness, 
one  dollar  for  each  person  on  whom  such  service  may  be  made. 
His  fees  for  all  other  services  shall  be  the  same  as  are  herein 

68  U.  S.  E.  S.,  §  828.     But  see  24  69  30  St.  at  L.  544,  559,  §  52. 

St.  at  L.  253,  541;   Erwin  v.  U.  S.  60  32  St.  at  L.  419,  476. 

2  L.E.A.  229,  37  Fed.  470;  Morrow  61  Aiken    v.    Smith,    C.    C.    A.,   57 

V   U    S.,  44  Fed.  405;  U.  S.  v.  Pit-  Fed.    423,   425;    Hoysradt    v.    Dela- 

man,  147  U.  S.  669,  37  L.  ed.  324;  ware,  L.  &  W.  R.  E.,  182  Fed.  880. 

Goodrich    V.    U.    S.,    35    Fed.    193;  62Aiken    v.    Smith,    C.    C.    A.,    57 

Pleasants    v.    U.    S.,    35    Fed.    770;  Fed.  423,  425. 

Jones  V.  U.  S.,  21  Ct.  01.  1 ;  U.  S.  63  Hoysradt  v.  Delaware,  L.  &  W. 

V.   King,   147  U.   S.   676,   37   L.   ed.  E.  E.,  182  Fed.  880. 

328.     See  also  U.  S.  E.  S.,  §§839-  64  Ibid. 
846;  18  St.  at  L.  333;  U.  S.  v.  Hill, 
120  U.  S.  169,  30  L.  ed.  627. 


2042 


COSTS 


[§418 


allowed  to  other  marshals;  but  he  shall  \)ay  into  the  Treasury 
of  the  United  States  all  fees  received  by  him,  and  render  a  true 
account  thereof  at  the  close  of  each  term  to  the  Attorney- 
General"! 

The  fees  of  the  other  United  States  marshals,  which  are  paid 
by  private  litigants,  are  fixed  by  statute  as  follows:  "For  serv- 
ice of  any  warrant,  attachment,  summons,  capias,  or  other  writ, 
except  execution,  venire,  or  a  summons  or  subpoena  for  a  witness, 
two  dollars  for  each  person  on  whom  service  is  made. ' '  ^  The 
marshal  has  a  right  to  demand  in  advance  the  payment  of  fees 
for  the  service  of  process,*  and  may  have  an  attachment  to  en- 
force payment  against  suitors  in  the  court,*  or  against  an  in- 
dorser  on  the  writ  who,  by  local  law,  is  liable  to  respond  for  the 
costs. 5  *'For  the  keeping  of  personal  property  attached  on 
mesne  process,  such  compensation  as  the  court,  on  petition  setting 
forth  the  facts  under  oath,  may  allow.^  For  holding  a  court  of 
inquiry  or  other  proceedings  before  a  jury,  including  the  sum- 
moning of  a  jury,  five  dollars.''  For  serving  a  writ  of  subpoena 
on  a  witness,  fifty  cents ;  and  no  further  compensation  shall  be 
allowed  for  any  copy,  summons,  or  notice  for  a  witness."  ^ 

"For  sei'ving  a  writ  of  possession,  partition,  execution,  or  any 
final  process,  the  same  mileage  as  is  allowed  for  the  service  of 
any  other  writ ;  and  for  making  the  service,  seizing  or  levying 
on   property,    advertising   and   disposing   of  the   same   by   sale. 


§  418.     1  U.  S.  R.  S.,  §  832. 

2  U.  S.  E.  S.,  §  829.  See  Bur- 
roughs Bros.  Mfg.  Co.  V.  Dulauey, 
288  Ted.  255. 

3  Ray  v.  Knowlton,  11  Biss.  C.  C. 
360;  Duy  v.  Knowlton,  14  Fed.  107. 

4  Anonymous,  2  Gall.  101. 
6  Ibid. 

6  U.  S.  R.  S.,  §  829.  The  marshal  'a 
fees  for  the  custody  of  goods  in 
eases  of  seizure,  and  other  proceed- 
ings in  rem,  are  not  discretionary, 
but  are  dependent  upon  the  precise 
regulations  of  law,  or,  in  the  ab- 
sence of  such  regulations,  are  to  be 
allowed  upon  the  principle  of  a  quan- 
tum meruit,  graduated  by  the  or- 
dinary value  of  similar  services  and 


dependent  upon  the  circumstances 
of  each  particular  case.  Where 
such  fees  are  not  regulated  by  law, 
an  auditor  should  pass  upon  them. 
Bottomley  v.  U.  S.,  1  Story  (Mass.) 
135,  153.  The  marshal  is  entitled  t» 
be  paid  his  fees  at  the  time  he  de- 
livers up  the  property  to  the  person 
entitled  to  receive  it.  The  George- 
anna,  31  Fed.  405.  The  court  will 
not  allow  pay  for  extra  men  em- 
ployed by  the  marshal  to  prevent 
the  collector  of  customs  from  taking 
by  force  property  from  his  custody. 
The  Perseverance,  22  Fed.  462. 

7  U.  S.  E.  S.,  §  829. 

8  U.    S.    R.    S.,    §  829. 


§418] 


MARSHALS      FEES 


2043 


set-off,  or  otherwise  according  to  law,  receiving  and  paying  over 
the  money,  the  same  fees  and  poundage  as  are  or  shall  be  al- 
lowed for  similar  services  to  the  sheriffs  of  the  States,  respec- 
tively, in  which  the  service  is  rendered.'"^  The  fees  for  serv- 
ices of  a  deputy  marshal  l)elong  legally  to  the  marshal,  and  he 
controls  tlicm,  and  his  receipt  must  operate  as  a  discharge  of  the 
fees.^''  No  fee  is  allowed  foi-  sei-vicc  of  a  writ  or  warrant  unless 
actually  executed.^^ 

The  marshal  may  charge  poundage  on  the  debt,  if  authorized 
by  State  laws,  where  an  insolvent  is  disdiarged  from  imprison- 
ment by  the  Secretary  of  the  Treasui-y  on  payment  of  costs.^' 
Where  a  marshal  who  levied  the  execution  has  received  his  half 
commissions,  his  successor  will  be  entitled  to  no  more  than  his 
half  commissions,  for  collecting  and  paying  it  over.^'    Where  the 


9U.  S.  K.  S.,  §829;  Pomeroy  v. 
Barter,  1  McLean  (Tnd.)  448. 

10  Wintermute  v.  Smith,  1  Bond 
210. 

11  Ex  parte  Paris,  6  W.  &  M.  227. 
12Townsend  v.  U.  S.,  1  U.  S.  L. 

J.  534b.  For  cases  in  which  the 
marshal  is  entitled  to  poundage,  see 
IT.  S.  V.  Einggold,  8  Pet.  loO; 
Causin  v.  Chubb,  1  Cranch,  C.  C. 
267;  Einggold  v.  Glover,  2  Cranch, 
C.  C.  427;  IT.  S.  v.  Smith,  3  Cranch, 
C.  C.  66;  Mason  v.  Muncaster,  3 
Cranch,  C.  C.  403;  Ringgold  v. 
Lewis,  3  Cranch,  C.  C.  367;  Swann 
V.  Ringgold,  4  Cranch,  C.  C.  238. 

13  1.5  Op.  Aty.  Gon.  346.  The 
marshal  is  not  entitled  to  fees  where 
no  property  is  sold  nor  any  money 
received  under  an  execution.  Irwin 
V.  Cummings,  Hcmpst.  703.  Other- 
wise where  money  is  paid,  though 
no  sale  is  necessary.  Pomeroy  v. 
Harter,  1  McLean  (Vud.)  448.  The 
marshal  cannot  charge  interest  on 
his  fees,  although  he  may  on  his 
disbursements.  T\e  Donahue.  S 
Bankr.  Reg.  453.  If  the  State  Court 
compensates  services  similar  to 
those   performed   by   a   marshal,   al- 


though not  performed  there  by  a 
like  officer,  the  marshal  is  entitled 
to  the  same  compensation.  Pomeroy 
v.  Harter,  1  McLean  (Ind.)  448; 
The  Trial,  1  Blatchf.  &  H.  94.  When 
an  execution  against  the  person  was 
issued  in  the  county  of  New  York, 
the  defendant  held  under  arrest  for 
some  time,  and  the  action  subse- 
quently settled  by  a  compromise,  the 
defendants  paying  a  smaller  sum 
than  that  specified  in  the  execution, 
it  was  held  that  the  marshal  was 
entitled  to  poundage  on  the  whole 
amount  for  which  the  execution  is- 
sued ;  and  that  the  rate  of  poundage 
should  be  that  allowed  the  sheriffs 
in  the  different  counties  throughout 
the  State,  and  not  the  special  rate 
allowed  in  the  county  of  New  York. 
U.  S.  v.  Haas,  5  Fed.  29.  In  the 
Southern  District  of  New  York, 
where  an  execution  was  stayed  and 
set  aside  for  a  defect  appearing 
upon  its  face,  it  was  hehl  that  the 
marshal  who  had  made  a  levy  was 
entitled  to  his  fees,  but  to  no  pound 
age.  Amato  v.  Jacobus,  C.  C.  A.,  58 
Fed.  855,  in  whicii  the  autiior  was 
counsel.       When     the     marslial     ex- 


2044  COSTS  [§418 

case  was  removed  after  the  levy  of  an  attachment,  it  was  held 
that  the  poundage  should  be  equally  divided  between  the  sheriff 
and  the  marshal.^* 

' '  For  each  bail-bond,  fifty  cents.^^  For  summoning  appraisers, 
fifty  cents  each.^^ 

"For  executing  a  deed  by  a  party  or  his  attorney,  one  dollar.^''' 
For  drawing  and  executing  a  deed,  five  dollars. ' '  ^®  The  marshal 
cannot  object  to  the  purchaser's  drawing  his  own  deed  if  he 
choose.^® 

"For  copies  of  writs  or  papers  furnished  at  the  request  of 
any  partj^,  ten  cents  a  folio.^*^ 

"For  every  proclamation  in  admiralty,  thirty  cents.'^^ 

"For  serving  an  attachment  m  rem  or  a  libel  in  admiralt}^,  two 
dollars.  "22  The  marshal  may  charge  for  copies  of  libels  in 
admiralty,  service  in  newspapers  and  by  posting,  at  the  rates 
charged  for  similar  service  by  officers  of  the  State  courts.^^ 
Where  process  in  rem  is  issued  against  a  vessel,  but  before 
process  is  served  the  claimant,  waiving  service,  gives  a  bond  un- 
der section  941  of  the  Revised  Statutes,  and  the  case  proceeds  to 
final  decree,  no  actual  seizure  having  been  made  by  the  marshal, 
he  is  still  entitled  to  his  fees  on  the  settlement  of  the  case.^*  It 
is  not  necessary  that  there  should  be  a  sale  in  order  to  entitle 
him  to  his  fees.^^ 

"For  the  necessary  expenses  of  keeping  boats,  vessels,  or  other 
property  attached  or  libeled  in  admiralty,  not  exceeding  two  dol- 
lars and  fifty  cents  a  day. ' '  ^^ 

An  agreement  with  the  marshal  to  pay  more  than  the  stat- 
utory fee  for  such  services  is  against  public  policy  and  cannot 
be  enforced. 2' 

tends    an    execution    on    real    estate  19  The  John  E.  Mulford,  18  Fed. 

for    the    government    he    is    entitled  455. 

to  his  fees,  though  the  land  is  not  20  U.  S.   R.  S.,   §  829. 

yet  sold  or  redeemed,  nor  in  any  way  21  U.   S.  R.   S.,   §  829. 

converted    into    money.      U.    S.    v.  22  U.   S.  R.   S.,   §  829. 

Smith,  44  Fed.  405.  23  Lovering  v.  U.  S.,  117  Fed.  565. 

14  Duryee   v.   International   Mach.  24  The    city    of    Washington,    13 

&   Eng.    Co.    (D.    C,    S.   D.   N.    Y.)  Blatchf.  410. 

January,  1912.  25  The  Captain  John,  41  Fed.  147. 

16  U.  S.  R.  S.,  §  829.  26  U.  S.  R.  S.,  §  829. 

16  U.  S.  E.  S.,  §  829.  27  The  Neptune,  C.  C.  A.,  252  Fed. 

17  U.  S.  R.  S.,  §  829.  129. 

18  U.    S.   R.    S.,    §  829. 


I 


§418]  marshals'  FEES  2045 

On  delivering  up  the  property  the  marshal  may  demand  his 
fees  of  the  person  entitled  to  recover  it.^*  He  must  take  actual 
possession  of  the  vessel,  or  he  is  not  entitled  to  fees.^®  He  may 
take  such  possession  as  to  render  him  liable  to  the  parties,  and 
yet  not  be  entitled  to  fees.^** 

The  marshal's  actual  expenses  for  ship-keepino:  must,  by 
vouchers,  &c.,  be  established  to  be  necessary  to  the  satisfaction  of 
the  court. ^^  The  approval  by  the  district  attorney  of  the  em- 
ployment of  extra  keepers  will  not  be  sufficient  to  establish  the 
right  of  the  marshal  to  an  allowance  for  the  employment  of  such 
extra  keepers. ^^  Notwithstanding  the  limit  named  in  this  clause, 
the  marshal  will  be  allowed  the  extra  cost  of  dockage  of  a  vessel 
seized  while  on  a  marine  railway'  from  which  she  could  not  be  re- 
moved without  danger  of  sinking.^^ 

The  libelant  must  get  an  order  from  the  court  directing  the 
withdrawal  of  the  keeper,  if  he  would  not  be  liable  for  keeper's 
fees  should  he  lose  the  suit.  ]\Iere  notice  to  the  marshal  is  not 
enough.^*  If  the  parties  agree  that  the  vessel  shall  be  four 
months  in  the  marshal's  charge,  the  sum  actually  paid  a  watch- 
man by  him  is  taxable  as  part  of  the  costs,  even  though  the  claim- 
ant also  had  a  keeper  on  the  vessel.'^  Entry  by  the  marshal  into 
the  bonded  warehouse  where  the  goods  are  stored,  and  levying 
of  process  against  and  affixing  a  notice  of  seizure  upon  such  prop- 
erty, is  an  attachment  upon  the  property  within  the  meaning 
of  the  statute;  and  the  custody  fees  of  a  keeper  who  visited  the 
storehouse  three  times  a  day,  though  he  did  not  enter,  are  taxable 
as  costs.^^  The  court  will  not  allow  pay  for  extra  men  employed 
by  the  marslud  to  prevent  the  collector  of  customs  from  taking 
by  force  property  from  his  custody.*'''  Nor  will  the  court  allow 
the  marshal  five  dollars  a  day  on  the  ground  that  two  men  were 
employed  to  watch, — one  by  day  and  one  by  night. *^  P>ut  two 
dollars  and  fifty  cents  a  day  is  not  the  absolute  limit,  and  more 
will  be  allowed  in  the  ease  of  danger  from  thieves,  and  in  other 

28  The   Georgeanna,   .31   Fed.   40.'3.  33  The  Novelty,  9  Ben.  19.1. 

29  The    Hibernia,    1    Sprague,    78.  84  The    Independent,    9   Ben.   489. 
80  Ibid.                                                            36  The  San  Jacinto,  30  Fed.  266. 

31  The  Free  Trader,  1  Brown,  36  Jorgenson  v.  Casks  of  Cement. 
Adm.    72.  40  Fed.  606. 

32  The  Captain  John,  41  Fed.  147,  37  The  Perseverance,  22  Fed.  462. 
149;  The  Perseverance,  22  Fed.  462.  38  Ibid. 


2046 


COSTS  [§418 


emergencies  requiring  more  than  one  man  to  guard  the  prop- 
erty ;  since  the  marshal  is  bound  to  protect  from  damage  a  vessel 
in  his  custody.^* 

When  a  marshal  has  done  his  work  in  a  defective  manner,  and 
additional  labor  becomes  necessary  in  consequence,  no  compensa- 
tion for  the  latter  should  be  allowed." 

A  marshal,  being  the  party  served,  is  not  entitled  to  fees  for 
serving  a  warrant  for  the  delivery  of  a  vessel  to  the  claimant 
issued  upon  a  stipulation  of  the  parties ;  but  he  is  entitled  to  be 
reimbursed  for  any  expenses  he  is  put  to  on  account  of  having 
been  served  with  such  warrant. *i 

When  a  vessel  sinks  without  the  fault  of  the  marshal  after  it 
has  been  attached  he  can  charge  the  cost  of  raising  and  beaeh- 
ing.«  The  proper  charge  for  this  should  ordinarily  be  deter- 
mined upon  a  reference  and  not  upon  affidavit. *3  ^he  cost  of 
pumping  out  a  vessel  in  charge  of  the  marshal  is  properly  al- 
lowed against  the  claimants  in  admiralty.** 

If,  in  the  estimation  of  the  court,  it  was,  under  the  circum- 
stances, prudent  for  the  marshal  to  remove  and  insure  property 
in  his  possession,  he  will  be  allowed  the  expenses  necessarily 
incurred  thereby.***  And  he  should  insure  it  with  reference  to  its 
actual  market  value,  irrespective  of  its  original  cost.*^  The  mar- 
shal is  also  entitled  to  be  reimbursed  for  his  expenses  in  hiring 
wharfage  for  a  vessel  in  his  custody,  when  such  a  course  appears 
to  have  been  necessary.*' 

If  several  processes  are  issued  against  one  vessel,  and  the 
marshal  has  possession  under  all  the  processes,  the  per  diem 
custody  fees  should  be  apportioned  equally  among  the  claimants, 
saving  to  tlie  marshal,  in  case  any  party  fails  to  pay  his  proper 
proportion,  a  remedy  against  the  other  parties  for  the  amount.** 
"When  the  debt  or  claim  in  admiralty  is  settled  by  the  parties 

8*  Ibid.  46  Ibid. 

40  The   Nellie   Peck,   25   Fed.  463.  47  The    Novelty     (Steamboat),    9 

41  The  Jeanie  Landles,  17  Fed.  91.  Ben,  195.     But  see  The  F.  Merwin, 

42  The    Neptune,    C.    C.    A.,    252  10  Ben.  403. 

Fed.   129.  48  The    Circassian,    6    Ben.    512; 

*'Ibid.  The  John  Walls,  Jr.,  1   Spr.   178. 

44  The  Captain  John,  41  Fed.  147. 

46  TJ.    S.   V.    Three    Hundred    Bar- 
rels of  Alcohol,  1  Ben.  72. 


§418]  marshals'  fees  2047 

without  a  sale  of  the  property,  the  marshal  shall  be  entitled  to 
a  eominission  of  one  per  centum  on  the  first  five  hundred  dollars, 
of  the  elaim  or  decree,  and  one-half  of  one  per  eentuni  on  the 
excess  of  any  sum  thereof  over  five  hundred  dollars:  Provided, 
that,  when  the  value  of  the  property  is  less  than  the  claim,  such 
commission  shall  be  allowed  only  on  the  appraised  value 
thereof. "^^  The  word  "claim"  as  here  used  applies  equally  to 
"a  claim  of  forfeiture  to  the  United  States,  in  a  proceeding  in 
rem  against  a  vessel,"  as  well  as  to  cases  where  the  demand  or 
claim  is  personal  in  its  nature. ^'^  The  sum  paid  a  libelant  in  set- 
tlement of  his  claim,  and  not  the  amount  claimed  in  the  libel,  is 
the  basis  upon  which  the  marshal's  commissions  are  to  be  deter- 
mined.^^  The  issuing  of  a  i)rocess  and  the  giving  of  a  bond  under 
section  941  of  the  Revised  Statutes  to  the  marshal  will  entitle 
him  to  his  commissions  in  a  suit  in  rem  against  a  vessel  under 
this  clause,  although  the  service  of  the  process  be  waived  and 
seizure  of  the  vessel  be  not  actually  made.  If  the  amount  of  the 
final  decree  is  paid  before  execution,  that  is  such  a  settlement  of 
the  claim  as  will  entitled  the  marshal  to  his  commissions.^^  So 
if  part  of  the  goods  are  sold  or  there  is  a  part-payment  in  settle- 
ment, the  marshal  will  be  entitled  to  his  commissions  pro  rata}* 

Where  a  vessel  is  sold  by  a  trustee  under  the  limited  liability 
act,  the  marshal  is  not  entitled  to  a  commission. ^^ 

"For  sale  of  vessels  or  other  property  under  process  in  ad- 
miralty or  under  the  order  of  a  court  of  admiralty,  and  for  re- 
ceiving and  paying  over  the  money,  two  and  one-half  per  centum 
on  any  sum  under  five  hundred  dollars,  aud  one  and  one-quarter 

per  centum  on  the  excess  of  aiiy  sum  over  five  hundred  dol- 
lars."" 

The  marshal  is  entitled  to  have  the  commissions  included  in 
the  decree  as  part  of  the  costs. ^^ 

The  marshal  is  not  authorized  by  law  to  emj)loy  an  auctioneer 

49  U.  S.  R.  S.,  §829.  The   Clintonia,    11    Fed.    740,   citing 

60  The  Captain  John,  41  Fed.  147.  the  Eussia,  -5  Ben.  84;  Robison 
151.  V.  Bags  of  Sugar,  .15  Fed.  603. 

61  Rohison  v.  Bags  of  Sugar,  ^.l  63  Swann  v.  Ringgold,  Craneh,  C 
Fed.    60.i;    The    Clintonia.    11     ViH\.       C.   246. 

740.  64  The  Vernon,  .^e  Fed.   li:!. 

62  The    City    of    Washington,     i:!  56  IT.  S.   R.   S..  §829. 

Blatchf.  410.     Compare  Bone  v.  The  66  The   Enos,   C.   C.   A.,   251   Fed. 

Norma,  Newb.  Adm.  533.     And  see       45;    s.   c.   245   Fed.   814. 


2048  COSTS  [§418 

to  make  sales  under  process  or  decree  in  admiralty;  and  if  he 
employs  one,  he  can  make  no  charge  for  the  services  of  such 
auctioneer  which  he  could  not  otherwise  have  charged.  Nor  can 
he  make  such  charge  by  a  notice  prior  to  the  sale,  that  an  auc- 
tioneer's fee  will  be  required  of  the  purchaser  in  addition  to  his 
bid."  Where  a  marshal  has  been  paid  his  fees  and  commissions 
on  the  sale  of  a  vessel  under  decree,  and  a  claimant  files  a  peti- 
tion on  which  monition  is  issued,  asking  that  the  balance  of  the 
proceeds  be  paid  to  him,  and  the  court  so  orders,  the  marshal  can- 
not claim  an  additional  commission  on  the  amount  paid  by  the 
claimant."  Upon  an  interlocutory  sale  of  prize  property,  the 
marshal  is  entitled  to  full  commissions.^^  So  if  the  property  is 
removed  to  and  sold  in  another  district.^®  The  marshal 's  title  to 
commissions  accrues  at  the  time  of  the  sale,  and  he  is  entitled 
to  deduct  his  fees  at  the  time  when  he  pays  the  proceeds  into 
eourt.^i  If,  by  agreement  of  parties,  the  vessel  is  sold  outside  of 
the  territorial  limits  of  the  marshal's  authority,  he  is,  neverthe- 
less, entitled  to  his  fees.62  The  marshal  may  be  allowed  compen- 
sation, in  addition  to  hiTs  statutory  fees,  for  services  rendered  in 
transferring  a  prize  to  another  district  under  the  order  of  the 
court.^' 

"For  travel,  in  going  only,  to  serve  any  process,  warrant,  at- 
tachment, or  other  writ,  including  writs  of  subpoena  in  civil  or 
criminal  cases,  six  cents  a  mile,  to  be  computed  from  the  place 
where  the  process  is  returned  to  the  place  of  service,  or  when 
more  than  one  person  is  served  therewith,  to  the  place  of  service 
which  is  most  remote,  adding  thereto  the  extra  travel  which  is 
necessary  to  serve  it  on  the  others.^*  But  when  more  than  two 
writs  of  any  kind  required  to  be  served  in  behalf  of  the  same 
party  on  the  same  person  might  be  served  at  the  same  time,  the 
marshal  shall  be  entitled  to  compensation  for  travel  on  only  two 

67  The  John   C.  Mulford,   18  Fed.  63  The  Adula,  127  Ted.   839.     Cf. 

455;   Crofut  v.  Brandt,  13  Abb.  Pr.  U.    S.   E.   S.,    §4629. 

(N.  S.)    132.  64  U.   S.   R.   S.,   §829.     The   mar- 

6»The    Colorado,    21    Fed.    592.  shal   is    allowed   mileage    for   actual 

69  The  Avery,  2  Gall.  308.  travel    in   enabling  him    to   make    a 

60  The  San  Jose  Indiano,  2   Gall.  return       of     nulla     bona.       Anon., 
311-  Hempst,  450. 

61  The  Avery,  2  Gall.  308. 

62  The   San  Jose  Indiano,  2   Gall. 
311. 


§  418a] 


FEES   OP    U.    S.    COMMISSIONERS 


12049 


of  such  writs;  and  to  save  unnecessary  expense,  it  shall  be  the 
duty  of  the  clerk  to  insert  the  names  of  as  many  witnesses  in  a 
cause  in  such  subpoena  as  convenience  in  serving  the  same  will 
permit. "^^  i\Iileag:e  is  to  be  computed  from  the  place  where 
the  process  is  returned  to  the  place  of  service.  The  "place  of  re- 
turn" is  the  place  where  the  process  is  issued. ^^  Mileage  is 
computed  upon  the  ordinary  railroad  route,  if  traversed  by  the 
marshal,  although  there  is  a  shorter  railroad,  upon  which  trains 
run  much  less  often. ^''^  The  prevailing  party  cannot  tax  the  fees 
of  the  marshal  for  serving  subpoenas  on  witnesses  residing  with- 
out the  district  and  more  than  100  miles  from  the  place  of  trial. ^' 
"Tn  all  cases  where  mileage  is  allowed  to  the  marshal  he  may 
elect  to  receive  the  same  or  his  actual  traveling  ex})enses,  to  be 
proved  on  his  oath  to  llie  satisfaction  of  the  court."  ^^ 

§418a.  Fees  of  United  States  commissioners.  l>y  the  act  of 
May  28,  1896,  which  ]irovides  for  the  appointment  of  United 
States  Commissioners:  "The  terms  of  office  of  all  commissioners 
of  the  circuit  courts  heretofore  appointed  shall  expire  on  the 
thirtieth  day  of  Jiuie,  eighteen  hundred  and  ninety-seven ;  and 
such  office  shall  on  that  day  cease  to  exist,  and  said  commission- 
ers shall  then  deposit  all  the  records  and  other  official  papers 
appertaining  to  their  offices  in  the  office  of  the  clerk  of  the  circuit 
court  by  which  they  were  appointed.  All  proceedings  pending, 
I'cturnable,  unexecuted  or  untinished  at  said  date  before  any  such 


66  U.  S.  K.  S.,  §  829.  See  U.  S.  v. 
Harmon,  147  U.  S.  268,  .37  L.  ed. 
164;  U.  S.  V.  Fletcher,  147  U.  S. 
664,  .'57  L.  cd.  .322.  He  is  not  en- 
titled to  constructive  mileage,  and 
his  actual  traveling  expenses  must 
be  divided  among  the  causes  in  his 
hands  to  serve  at  the  same  time. 
Re  Donahue,  8  Bankr.  453.  Should 
the  marshal  arrest  the  wrong  per- 
son, he  is  not  entitled  to  fees  of  any 
kind;  nor  Tvill  he  be  allowed  addi- 
tional mileage  for  transporting  a 
prisoner  to  a  particular  place  by 
any  other  than  the  usual  route  of 
travel  to  that  place.  Matter  of 
Crittenden,  2  Flippin,  212.  lie  may 
charge  actual  expenses  for  serving  a 


monition  instead  of  the  statutory 
mileage.  The  Wavelet,  25  Fed.  733. 
This  statute  applies  to  civil,  as  well 
as  criminal,  cases.  National  Bank 
of  Commerce  v,  Cleveland,  156  Fed. 
251. 

66  Matter  of  Crittenden,  2  Flip. 
212. 

67  Levering  v.  U.  S.,  117  Fed.  565. 

68  U.  S.  V.  Southern  Pac.  Co.,  172 
Fed.  909. 

69  IT.  S.  R.  S.,  §829.  Generally 
the  marshal  should  not  be  allowed 
any  charges  that  are  not  expressly 
granted  by  statute.  The  John  F. 
Mulford,  18  Fed.  4.55;  Crofut  v. 
Brandt,  13  Abb.  Pr.  (N.  S.)  132. 


2050  COSTS  [§  418a 

commissioner  shall  be  continued  and  disposed  of  according  to  law 
by  such  commissioner  appointed  as  herein  provided  as  may  be 
designated  by  the  district  court  for  that  purpose.  It  shall  be  the 
duty  of  the  district  court  of  each  judicial  district  to  appoint  such 
number  of  persons,  to  be  known  as  United  States  commissioners, 
at  such  places  in  the  district  as  may  be  designated  by  the  district 
court,  which  United  States  commissioners  shall  have  the  same 
powers  and  perform  the  same  duties  as  are  now  imposed  upon 
commissioners  of  the  circuit  court.  The  appointment  of  such 
United  States  commissioners  shall  he  entered  of  record  in  the 
district  courts,  and  notice  thereof  at  once  given  by  the  clerk 
to  the  Attorney-General.  That  such  United  States  commission- 
ers shall  hold  their  offices,  respectively,  for  the  term  of  four 
years  but  they  shall  be  at  any  time  subject  to  removal  by  the 
district  court;  and  no  person  shall  at  any  time  be  a  clerk  or 
deputy  clerk  of  a  United  States  court  and  a  United  States  com- 
missioner without  the  approval  of  the  Attorney-General :  Pro- 
vided, That  all  Acts  and  parts  of  Acts  applicable  to  commis- 
sioners of  the  circuit  courts,  except  as  to  appointment  and  fees, 
shall  be  applicable  to  United  States  commissioners  appointed  un- 
der this  Act.  Warrants  of  arrest  for  violations  of  internal-rev- 
enue laws  may  be  issued  by  United  States  commissioners  upon 
the  sworn  complaint  of  a  United  States  district  attorney,  assist- 
ant United  States  district  attorney,  collector  or  deputy  collec- 
tor of  internal  revenue,  or  revenue  agent,  or  private  citizen ;  but 
no  such  warrant  of  arrest  shall  be  issued  upon  the  sworn  com- 
plaint of  a  private  citizen  unless  first  approved  in  writing  by  a 
United  States  district  attorney.  That  United  States  commis- 
sioners and  all  clerks  and  all  deputy  clerks  of  United  States 
courts  are  hereby  authorized  to  administer  oaths.  "^ 

"Each  United  States  commissioner  shall  be  entitled  to  the  fol- 
lowing-named fees,  and  none  other :  Drawing  a  complaint,  with 
oath  and  jurat  to  same,  fifty  cents;  copy  of  complaint,  with  cer- 
tificate to  same,  thirty  cents ;  issuing  warrant  of  arrest,  seventy- 
five  cents ;  issuing  a  commitment  and  making  copy  of  same,  one 
dollar;  entering  a  return,  fifteen  cents;  issuing  subpoena  or  sub- 
poenas in  any  one  case,  with  5  cents  for  each  necessary  witness 
in  addition  to  the  first,  twenty-five  cents;  drawing  a  bond  of  de- 

§  418a.  1  Act  of  May  28,  1896,  Comp.  St. '  §§  13.33,  1677,  see  infra, 
ch.    252,    §  19,    29    St.    at    L.,    184      Chapter  xxxi. 


§  418a]  FEES  OF  r.  s.  com.missionkr.s  '20'A 

fendant  and  .sureties,  taking  acknowledgment  of  same  and  justi- 
fication of  sureties,  seventy-five  cents;  for  administering  an  oath 
(except  to  witness  as  to  attendance  and  travel),  ten  cents;  recog- 
nizance of  all  witnesses  in  a  ease,  when  the  defendant  or  de- 
fendants are  held  for  court,  fifty  cents ;  transcripts  of  proceed- 
ings, when  required  by  oi'der  of  court  and  transmission  of  orig- 
inal papers  to  court,  sixty  cents;  copy  of  warrant  of  arrest,  with 
certificate  to  same,  when  defendant  is  held  for  court,  and  the  orig- 
inal papers  are  not  sent  to  court,  forty  cents ;  order  in  duplicate 
to  pay  all  witnesses  in  a  case :  For  first  witness,  thirty  cents,  and 
for  each  additional  witness,  five  cents,  and  for  oath  to  each  wit- 
ness as  to  attendance  and  travel,  five  cents;  for  hearing  and  de- 
ciding on  criminal  charges  and  reducing  the  testimony  to  writing 
when  required  by  law  or  order  of  court,  five  dollars  a  day  for 
the  time  necessai'ily  employed  :  Provided,  That  not  more  than  one 
per  diem  sliall  be  allowed  in  a  ease,  unless  the  account  shall  show 
that  the  hearing  could  not  be  completed  in  one  day,  when  one 
additional  per  diem  may  be  specially  approved  and  allowed  by 
the  court :  Provided  further.  That  not  more  than  one  per  diem 
shall  be  allowed  for  any  one  day :  Provided  further.  That  no  per 
diem  shall  be  allowed  for  taking  a  bond  or  recognizance  and 
passing  on  the  sufficiency  of  the  bond  or  recognizance  and  the 
sureties  thereon  when  the  bond  or  recognizance  was  taken  after 
the  defendant  had  been  committed  to  prison  upon  a  final  commit- 
ment, or  has  given  bond  or  been  recognized  for  his  appearance 
at  court,  or  when  the  defendant  has  been  arrested  on  a  capias 
or  bench  warrant,  or  was  in  custody  under  any  process  or  order 
of  a  court  of  record.  For  the  examination  and  certificate  in  cases 
of  application  for  discharge  of  poor  convicts  imprisoned  for  non- 
payment of  fine  or  fine  and  costs,  and  all  services  connected  there- 
with, three  dollars;  for  attending  to  a  reference  in  a  litigated 
matter,  in  a  civil  cause  at  law,  in  equity,  or  in  admiralty,  in  pur- 
suance of  an  order  of  the  court,  three  dollars  a  day ;  for  taking 
and  certifj'ing  depositions  to  file  in  civil  cases,  ten  cents  for  each 
folio;  for  each  coi)y  of  the  same  furnished  to  a  party  on  request, 
ten  cents  for  eacli  folio;  for  issuing  any  warrant  under  the  tenth 
article  of  the  treaty  of  August  ninth,  eighteen  hundred  and  forty- 
two,  between  the  United  States  and  the  Queen  of  the  United 
Kingdom  of  (Jrcat  l^ritain  and  Ireland,  against  any  parties 
charged  with  anv  crime  or  offense  set  forth  in  said  article,  two 


2052  COSTS  [§418b 

dollars ;  for  issuing  any  warrant  under  the  provision  of  the  con- 
vention for  the  surrender  of  criminals  between  the  United  States 
and  the  King  of  the  French,  concluded  at  Washington,  November 
ninth,  eighteen  hundred  and  forty-three,  two  dollars;  for  hearing 
and  deciding  upon  the  case  of  any  person  charged  with  any  crime 
or  offense,  and  arrested  under  the  provisions  of  said  treaty  or  of 
said  convention,  five  dollars  a  day  for  the  time  necessarily 
employed. 

"Such  commissioners  shall  keep  a  complete  record  of  all  pro- 
ceedings before  them  in  criminal  cases,  in  a  well-bound  book, 
which  record  book  shall  be  delivered  to  and  preserved  by  the 
clerk  of  the  District  Court  for  such  district  on  the  death,  resigna- 
tion, removal,  or  expiration  of  term  of  the  commissioner,  for 
which  record  the  commissioners  shall  receive  no  compensation. ' '  ^ 

This  statute  does  not  repeal  by  implication  the  authority  of 
notaries  puljlic  to  take  depositions  in  the  same  manner  as  Com- 
missioners of  the  United  States  Circuit  Courts  '  and  to  charge 
twenty  cents  a  folio  for  the  original  transcript.* 

Upon  delivering  to  the  District  Court  the  wages  and  effects  of 
a  seaman  who  has  died  a  Shipping  Commissioner  is  entitled  to 
a  fee  of  two  dollars  and  a  commission  of  one  per  cent,  upon  the 
amount  of  such  wages.^ 

§  418b.  Fees  of  masters,  referees,  commissioners,  examiners, 
notaries,  auditors  and  consuls.  The  legal  fees  paid  to 
masters, 1  referees,^  examiners,^  commissioners,*  and  auditors  * 
can  be  taxed.  The  compensation  of  masters  has  been  previously 
explained.  In  taxing  the  fees  of  a  referee  in  an  action  at  common 
law  as  well  as  in  a  suit  in  equity,  the  Federal  Court  is  not  bound 
to  follow  the  State  Statute  upon  the  subject;  but  may  allow  a 
reasonable  compensation,  in  estimating  which  it  should  consider 

2  29  St.  at  L.  184.  §  21  Comp.  St.  «  Edison  El.  Lt.  Co.  v.  Mather  El. 
§§  652,   1451.                                                 Co.,  63  Fed.  559;  Indianapolis  Water 

3  19  St.  at  L.  206,  see  U.  S.  R.  S.,       Co.  v.  Am.  S.  B.  Co.,  65  Fed.  5.34. 

§  847.  4  Tesla  El.  Co.  v.  Scott,  101  Fed. 

4  Am.  Bank  Protection  Co.  v.  City       524. 

Nat.  Bank.,  20.3  Fed.  715.  5  Fenno  v.  Primrose,  C.  C.  A.,  119 

6Ee  Johnson,  251  Fed.  .319.  Fed.  801,  807;   Hulihan  v.  Corpora- 

§418b.  1  Supra,  §392.  tion   of   St.   Anthony   in   New   Bed- 

2N.  J.  Terminal  Dock  &  Imp.  Co.  ford,  173  Fed.  496. 

V.  Estates  of  Long  Beach,  179  Fed. 

973. 


§  41 8e] 


STENOGRAPHERS     PEES 


2053 


the  amount  involved  and  the  benefit  to  both  parties,  as  well  as  the 
time  devoted  to  the  case  and  the  anionnt  that  eould  be  charged 
a  client  for  the  same  laboi-.^  In  the  Second  Circuit  examiners' 
fees  are  three  doUai-s  a  day,  and  thirtj'  cents  a  folio  for  typewrit- 
ing the  testimony^  Where  witnesses  were  sworn  in  three  cases 
and  testified  but  once;  in  the  Kirst  Circuit  the  master  was  al- 
lowed a  fee  of  three  dollai's  a  day  for  attendance,  twenty  cents  a 
folio  for  eertifying  and  filing  in  one  case  and  in  other  cases  ten 
cents  a  folio.^  In  the  District  of  Indiana,  where  a  stenographer 
had  been  appointed  special  examiner  he  was  allowed  the  fees  paid 
under  the  State  practice  for  similar  services.^  In  the  First  (cir- 
cuit the  examiner  is  allowed  ten  cents  a  folio  for  a  copy  of  the 
testimony  for  the  use  of  counsel. ^•^ 

When  a  deposition  is  taken  by  consent  before  a  consul,  the 
consular  fees  as  fixed  by  statute,  not  merely  those  allowed  to  a 
commissioner,  are  taxed. ^^ 

§418c.  Stenographers'  fees.  "AYhen  deemed  necessary  by 
the  e<iuity  court  oi-  officer  taking  testimony,  a  stenographer 
maj'  be  api)ointcd  who  shall  take  down  testimony  in  shorthand 
and,  if  requii-ed,  transcribe  the  same.  His  fee  shall  be  fixed  bj- 
the  court  and  taxed  ultimately  as  costs.  The  expense  of  taking  a 
deposition,  or  the  cost  of  a  transcript,  shall  be  advanced  by  the 
party  calling  the  witness  or  ordering  the  transcript."^  The 
same  rule  applies  to  a  proceeding  before  an  auditor  or  referee  in 
an  action  at  common  law,  whether  the  stenographer  is  selected  by 
the  auditor  or  by  the  parties. ^ 


6  N.  J.  Terminal  Dock  &  Imp.  Co. 
V.  Estates  of  Long  Beach,  179  Fed. 
973,  where  the  referee's  fees  were 
taxed  at  $1,000. 

7  Edison  El.  Lt.  Co.  v.  Mather 
El.  Co.,  63  Fed.  559. 

8  L.  E.  Waterman  Co.  v.  Lock- 
wood,  128  Fed.  174,  176. 

9  Indianapolis  Water  Co.  v.  Am. 
R.  B.  Co.,  65  Fed.  534.  But  see 
Cerman   v.  Stewart,   12   Fed.   271. 

1*  L.  E.  Waterman  Co.  v.  Lock- 
wood,  128  Fed.  174,  176. 

11  Duplex  Metals  Co.  v.  Standard 
Underground  Co.,  218  Fed.  269. 

§418e.     lEq.  Rule  50. 
Fed.  Prac.  Vol.  11—59 


2  Be  Peterson,  S.  C.  V.  S.,  June  1. 
1920.  It  seems  that  this  State 
practice  should  be  followed  in  tak- 
ing such  an  item  in  an  action  at 
common  law.  Ihid,  Cor])oration  of 
St.  Anthony  in  New  Bedford  v. 
Houlihan,  C.  C.  A.,  184  Fed.  252. 
In  the  Second  Circuit,  where  the 
plaintiffs  therein  had  paid  for  the 
stenographer's  miiuites,  he  was  di- 
rected to  report  them  to  tlie  court 
for  filing,  but  a  uuitioii  to  make 
tlunn  a  ])art  of  the  judgment  rule 
was  denied  unless  the  defendants 
should  advance  the  fees  therefor. 
Alder  v.  Edenborn,  198  Fed.  928. 


2054 


COSTS 


[§  418c 


The  former  practice  was  that  before  the  final  determination 
of  the  suit  each  party  was  obliged  to  advance  the  costs  and  ex- 
penses made  by  himself,  namely,  master's  and  stenographer's 
fees,  the  direct  and  redirect  examination  of  his  witnesses,  and  the 
cross  and  recross  examination  of  those  called  by  his  opponent 
and  his  own  adjournments.^  In  the  Second  Circuit,  it  is  custo- 
mary for  the  parties  to  divide  the  expense  of  the  services  of  the 
stenographer  upon  a  trial  at  common  law  and  for  the  party  who 
obtains  a  copy  of  the  minutes  to  pay  the  additional  charge  for 
transcribing  the  same,*  and  if  this  is  done  by  agreement  the  suc- 
cessful party  can  tax  what  he  has  advanced  for  this  purpose.*^ 
Otherwise  they  cannot  be  taxed,^  except  when  there  is  a  writ 
of  error.  In  the  latter  case  the  stenographer's  fees  for  a  copy 
of  the  minutes  used  not  on  the  trial  but  in  preparing  the  bill  of 
exceptions  or  transcript  may  be  taxed  in  the  court  of  review.' 

It  has  been  said  that  even  in  an  equity  case,  if  the  unsuccess- 
ful party  wishes  the  testimony  for  an  appeal,  he  must  secure  that 
for  himself.*  Except  by  consent,  the  cost  of  copies  of  stenog- 
rapher's minutes  obtained  for  the  use  of  counsel  in  preparation 
for  trial  or  for  cross-examination  or  for  argument  can  not  be 
taxed. ^  These  unfortunate  decisions  which  seem  to  be  justified 
by  the  precedents  in  the  State  courts  should  be  abrogated  by  a 
rule  permitting  the  court  in  its  discretion  to  tax  such  a  disburse- 
ment; since  at  the  present  time  parties  who  are  poor  are  thus 
hampered  in  bringing  out  the  truth  by  cross-examination  and 
consequently  the  court  and  jury  too  often  receive  a  full  presen- 


3  MaeDonald  v.  Shepard,  10  Ved. 
919;  Brickill  v.  Mayor,  55  Fed. 
565;  U.  S.  Printing  Co.  v.  Am. 
Playing  Card  Co.,  81  Fed.  506; 
Panoulias  v.  Nat.  Equipment  Co., 
227  Fed.  1008;  but  see  Urner  v. 
Kayton,   77   Fed.   539. 

4Sedlacek  v.  Bryan,  192  Fed. 
?.61.  Where  the  successful  party 
furnished  a  copy  of  the  evidence  to 
the  other,  it  was  held  that  he  might 
tax  ten  cents  a  folio  for  the  same. 

6  L.  E.  Waterman  Co.  v.  Lock- 
wood,  128  Fed.  174;  Sedlacek  v. 
Bryan,    192   Fed.    361. 

6  Ibid. 


7  White  V.  Upper  Hudson  Stone 
Co.,  C.  C.  A.,  2nd  Ct.  Jan.  2,  1918, 
not  reported.  Co-ntra,  Manahan  v. 
Godkin,   100   Fed.    196. 

8  L.  E.  Waterman  Co.  v.  Lock- 
wood,   128   Fed.    174. 

9  The  William  Branfoote,  C.  C.  A., 
52  Fed.  390;  Atwood  v.  Jacques, 
63  Fed.  561;  Koundtree  v.  Reinbert, 
71  Fed.  255;  Kelly  v.  Springfield 
Ry.  Co.,  83  Fed.  183;  Tesla  El.  Co. 
V-  Scott,  101  Fed.  524;  Sedlacek  v. 
Bryan,  192  Fed.  361;  Stallo  v.  Wag- 
ner, C.  C.  A.,  245  Fed.  636,  641. 
For  the  construction  of  a  stipulation, 
see  Be  Pearce,  235  Fed.  917. 


§  419]  WITNESS  p^EEs  2055 

tat  ion  of  no  evidence  except  that  which  supports  the  case  of  the 
defendant,  in  the  Southern  District  of  New  York  stenogra- 
pher's fees  for  reporting  testimony  in  admiralty  are  taxable  when 
ordered  by  the  court. ^® 

§419.  Witness  fees.  The  fees  of  a  witn<'ss  are,  "for  each 
day's  attendance  in  i-ouit.  or  before  any  officer  pursuant  lo  hiw, 
one  dollar  and  fifty  cents,  and  five  cents  a  mile  for  going  from  his 
place  of  residence  to  the  place  of  trial  or  hearing,  and  five  cents 
a  mile  for  returning."  ^ 

By  the  act  of  .May  27,  1908:  ''Jurors  and  witnesses  in  the 
United  States  courts,  in  the  States  of  Wyoming,  Montana.  Wash- 
ington, Oregon,  California,  Nevada,  Idaho,  Colorado  and  Utah, 
and  in  the  territories  of  New  Mexico  and  Arizona  shall  be  en- 
titled to  receive  for  actual  attendance  at  any  court  or  courts  and 
for  the  time  necessarily  occupied  in  going  to  and  returning  from 
the  same,  three  dollars  a  day,  and  fifteen  cents  for  each  mile 
necessarily  traveled  over  any  stage  line,  or  by  private  convey- 
ance, and  five  cents  for  each  mile  by  any  railway  or  steamship  in 
going  to  and  returning  from  said  courts :  Provided,  that  no  con- 
structive or  double  mileage  fee  shall  be  allowed  by  reason  of  any 
person  being  summoned  as  both  a  witness  and  juror,  or  as  a  wit- 
ness in  two  or  more  cases  pending  in  the  .same  court  and  triable 
at  the  same  term  thereof. "  ^  it  has  been  held  that  this  fee  cannot 
be  taxed  for  the  attendance  of  a  witness  before  a  commissioner 
upon  the  taking  of  his  deposition  in  admiralty. ^ 

Jurors  and  witnesses  in  the  District  Court  of  the  United  States 
for  Porto  Rico  shall  be  cnlitled  to  and  receive  15  cents  for  each 
mile  necessarily  traveled  over  any  stage  line  or  by  private  con- 
veyance and  10  cents  for  each  mile  over  any  railway  in  going  to 
and  returning  from  said  courts.  But  no  constructive  or  double 
mileage  fees  shall  be  allowed  by  reason  of  any  person  being  sum- 
moned both  as  witness  and  juror  or  as  witness  in  two  or  more 
cases  pending  in  the  same  court  and  triable  at  the  same  term 

10  The    E.    Luckenbac'k,    19    Fetl.  lounivy  uwdrv  a  tiedimus  potestatem ; 

847;  Rogers  v.  Brown,  1:56  Fed.  81.:.  Agius  v.    IVikins  Co.,  151    Fed.  9.j8. 

An  oral  order  in  open  rourt  is  sntW-  2  Act   of   May    27,    1908,   ch.   200, 

cient.     Ibid.  SI,    .35    St.    at    L.    377,    Comp.    St. 

S  419.     1  U.  S.  R.  S.,  S  848.     This  §  145.3. 

includes     attendani'e     in     a     foreign  3  Tlie   Mary,   2:;.'>   Fed.    121. 


2056 


COSTS 


[§419 


thereof.    Such  jurors  shall  be  paid  $3  per  day  and  such  witnesses 
$1.50  per  day  while  in  attendance  upon  the  court.* 

Pajanents  for  examining  property  as  to  which  they  testify  ^  or 
for  services  as  experts  ^  cannot  be  taxed. 

When  a  witness  is  detained  in  prison  for  want  of  security  for 
his  appearance,  he  is  entitled,  in  addition  to  his  subsistence,  to 
a  compensation  of  one  dollar  a  day.' 

When  a  witness  is  subpoenaed  in  more  than  one  cause  between 
the  same  parties,  at  the  same  court,  only  one  travel  fee  and  one 
per  diem  compensation  are  allowed  for  attendance.^  Both  are 
taxed  in  the  case  first  disposed  of,  after  which  the  fee  for  per 
diem  attendance  alone  is  taxed  in  the  other  cases  in  the  order  in 
which  they  are  disposed  of.^  It  has  been  held  that  he  doesn't 
suffer  any  abatement  of  his  compensation  because  he  is  summoned 
to  attend  at  the  same  time  to  testify  in  several  suits,  when  some 
but  not  all  the  parties  are  the  same ;  ^^  and  even  if  the  parties  are 
the  same,  when  both  suits  are  tried  together,  and  the  witness  is 
examined  but  once,  he  is  entitled  to  fees  in  each  ease ;  provided 
no  order  consolidating  the  suits  has  been  obtained. ^^  It  has  been 
held  that  in  all  such  cases  the  fees,  if  paid,  can  be  taxed,  provided 
the  witnesses  were  in  good  faith  asked  to  attend. ^^ 

When  the  trial  is  postponed  because  of  the  illness  of  counsel,^' 
or  delay  in  the  transmission  of  a  deposition  taken  b^^  the  other, 
side,^*  and  the  witnesses  are  required  to  remain  during  the  post- 
ponement, they  must  be  paid  for  the  intervening  time.  So,  also, 
when  the  witnesses  are  required  to  remain  after  their  examina- 
tion to  the  end  of  the  hearing.^^ 

Fees  for  travel  of  a  witness  in  going  and  returning  can  only 


4  Act  of  Maroh  2,  3917,  ch.  145, 
§  47,  Comp.  St.  §  3803. 

6  Tuck  V.  Olds,  29  Fed.  883. 

6  Bone  v.  Walsh  Const.  Co.,  235 
Fed.  901. 

7  U.  S.  E.  S.,   §  848. 

8  U.  S.  E.  S.,  §  848. 

9  U.  S.  E.  S.,  §  848. 

10  Parker  v.  Bigler,  1  Fish.  285; 
The  Vernon,  36  Fed.  113;  Archer  v. 
Hartford  F.  Ins.  Co.,  31  Fed.  660. 
But  see  Sini])kiiis  v.  Atchison  T.  & 
S.  F.  By.  Co.,  61  Fed.  9911. 


11 L.  E.  Waterman  Co.  v.  Lock- 
wood,  128  Fed.  174.  Contra,  The 
Vera,  C.  C.  A.,  229  Fed.  557. 

12  The  Vernon,  36  Fed.  113;  Ar- 
cher V.  Hartford  F.  Ins.  Co.,  31  Fed. 
660;   U.  S.  V.  Miller,  223  Fed.  183. 

13  Whipple  V.  Cumberland  C.  Mfg. 
Co.,  3  Story,  84. 

14  Hunter  v.  Eussell,  59  Fed.  964. 
16  Whipple  V.  Cumberland  C.  Mfg. 

Co.,  3  Story,  84. 


§419] 


WITNESS   FEES 


2057 


be  taxed  once  for  each  occasion  of  taking  Icsliniony,  although 
each  occasion  embraces  a  number  of  da ys ;  ^^  unless  his  second 
attendance  was  re(|uired  by  an  adjournment  caused  by  the  fault 
of  the  unsuccessful  party,  when  his  traveling  fees  may  l)e  taxed 
for  his  attendance  at  such  adjourned  day  if  incurred.^''' 

Witnesses  summoned  and  attending  court  are  entitled  1o  their 
mileage  and  per  dirm  fees  if  the  cause  was  docketed  and  could 
have  been  tried  at  the  term  at  which  the  witnesses  attended.^* 

If  a  witness  is  subpn^naed  at  the  place  of  trial  on  the  day 
when  the  subpoena  requires  him  to  attend,  he  is  not  entitled  to 
any  mileage.^^ 

Where  witnesses  were  subpoenaed  to  testify  to  a  particular 
point,  although  ihc  opposite  party  admitted  the  point,  mileage 
and  per  diem  fees  up  to  the  \'nw  of  such  admission  were  al- 
lowed;^® and  a  second  trial  being  had,  and  no  stipulation  or 
entry  made  on  the  record  that  the  point  would  be  admitted  at 
the  second  trial,  such  per  diem  and  mileage  fees  were  allowed 
for  attendance  at  the  latter  trial  also.^^ 

But  it  has  been  held,  on  the  othei-  hand,  that  a  party  may 
not  tax  the  fees  of  a  witness  whom  he  has  subp(rnaed,  but  whose 
testimony  is  either  abandoned  or  stricken  out.^^  Nor  the  fees  of 
witnesses  upon  a  distinct  and  unrelated  count  ^^  cause  of  action  ^^ 
upon  which  the  party  in  whose  name  judgment  was  entered  did 
not  succeed.  Nor  may  he  tax  the  fees  of  more  than  three  wit- 
nesses to  a  single  fact;  ^^  nor  fees  and  mileage  for  himself  when 
he  testified  in  his  own  behalf;  ^^  nor  fees  which  he  has  not  paid.^"^ 
The  master  and  crew  of  a  vessel  mav  be  allowed  their  witness 


16  Spill  V.  Celluloid  Mfg.  Co.,  28 
Fed.   870. 

17  Hake  v.  Brown,  44  Fed.  T.\A. 

18  Young  V.  Merchants '  Ins.  Co., 
29  Fed.   27:i. 

19  The  Sunnyside,  5  Ben.   162. 

80  Young  V.  Merchants '  Ins.  Co., 
29  Fed.  27:^. 

81  Ibid. 

22  Troy  I.  &  N.  Factory  v.  Corn- 
ing, 7  Blatchf.  16;  The  Persiana, 
158  Fed.  912. 

28  U.  S.  V.  Miller,  233  Fed.  183. 

24  IT.  a.  V.  Minneai)olis,  St.  V.  & 
8.  S.  M.  Ry.  Co.,  2;?5  Fed.  9.51. 


26  Buasard  v.  Catalino,  2  Cranch, 
C.  C.  521. 

26  Nichols  V.  Brunswick  (I). 
Mass.),  3  Cliff,  88;  Roundtree  v. 
Rembert  (D.  S.  C),  71  Fed.  255; 
L.  E.  Waterman  Co.  v.  Lockwood 
(D.  Mass.),  128  Fed.  174.  Contra. 
Tuck  V.  Olds,  29  Fed.  883,  W.  D. 
Michigan. 

27Leary  v.  Miranda,  40  Fed.  607: 
O'Neil  V.  Kansas  City  S.  &  M.  R. 
Co.,  31  Fed.  663. 


2058  COSTS  [§419. 

fees  in  a  suit  for  collision  when  their  only  interest  is  the  value 
of  their  personal  effects  which  were  lost.^® 

It  has  been  held  that  fees  and  mileage  may  be  taxed  for  the 
attendance  as  witnesses  of  ofificers  of  a  corporate  defendant  ,^^ 
but  not  where  a  defendant  corporation  was  ordered  to  account 
before  a  master  in  a  suit  for  an  infringement  of  a  patent.^® 

Only  the  necessary  expenses  of  a  government  clerk  sent  away 
from  his  place  of  business  as  a  witness  for  the  government  will  be 
paid  to  him,  and  nothing  can  be  taxed  in  the  bill  of  costs  for  his 
travel  or  attendance.^^  The  same  rule  applies  to  deputy-clerks,  as 
they  are  also  officers  of  the  court. ^^  But  clerks  employed  by  the 
marshal  in  his  office,  keeping  his  accounts,  are  not  officers  of  the 
court,  and  are  entitled  to  fees  and  mileage. ^^  A  deputy-marshal 
is  an  officer  of  the  court ;  but  unless  he  is  actually  engaged  in  at- 
tendance upon  the  court,  he  is  entitled  to  per  diem  fees  and  mile- 
age, if  summoned  as  a  witness  by  the  government.^*  It  has  been 
held  that  the  United  States  vtiaj  tax  the  necessary  expenses  of  an 
employee  who  attended  as  a  Government  witness  at  a  place  dis- 
tant from  his  office,  irrespective  of  the  distance  traveled  by  him.^^ 

The  mile  is  computed  upon  the  shortest,  most  practical  and 
ordinary  route,  although  the  witness  traversed  a  longer  dis- 
tanced^ A  witness  can  be  subpoenaed  and  must  be  allowed  mile- 
age from  and  to  his  residence,  in  any  part  of  a  district  to  attend 
a  court  held  with  that  district,^'''  or  from  another  district  if  he 
does  not  reside  more  than  one  hundred  miles  from  the  place  of 
trial. ^^  The  authorities  conflict  upon  the  question,  whether  when 
a  witness  in  a  civil  case  who  resides  more  than  one  hundred  miles 
from  the  place  of  trial  voluntarily  attends  his  mileage  for  more 

28  The  Teaser,  C.  C.  A.,  22  Fed.  36  .Jennings  v.  Menaugh,  118  Fed. 
13.  612;   Hunter  v.  Russell,  .59  Fed.  964. 

29  Wead  V.  Millersburg  H.  W.  Co.,  37  The  Syracuse,  36  Fed.  830; 
79  Fed.  129.  Sims  v.  Schult,  40  Fed.  143;  Hunter 

30  Am.  Diamond  Drill  Co.  v.  Sul-  v.  Russell,  59  Fed.  964.  But  see 
livan  Mach.  Co.,   32  Fed.   552.  Smith  v.  Chicago  &  N.  W.  Ry.  Co., 

31  U.  S.  R.  S.,  §850;  IT.  S.  R.  S.,  38  Fed.  321;  Holmes  v.  Sheridan,  1 
§849;  U.  S.  V.  Sanborn,  28  Fed.  Dill,  421,  note.  See  Manufacturing 
299.  Co.  V.  Saliers,  6  Cent.  L.  J.  82. 

32£'a-  parie  Burdell,  32  Fed.  681.  38  U.   S.   R.   S.,    §876;    The  Syra- 

33  Ibid.  cuse,  36  Fed.  830. 

34  Ibid. 

36  U.    S.    V.   National   Surety    Co., 
168  Fed.  314. 


§419j 


WITNESS   FEES 


2059 


tlian  one  hundred  miles  can  bo  taxed.^^  A  witness  does  not  lose 
his  right  to  his  fees  merely  because  he  was  not  subprpuaed,  if  his 
attendance  and  examination  were  procured  iii  good  t'aith.*° 

Where  a  party  has  paid  some  witnesses  more  and  soau-  less 
than  the  legal  fees,  he  cannot  group  together  the  amounts  so 
paid  and  collect  the  legal  fees  for  all>i 

Witness  fees  incurred,  but  not  paid,  have  been  taxed." 


89  According  to  the  rulings  in  the 
First   Circuit,   a  witness   is   entitled 
to    mileage    from    his    residence,    no 
matter  how   far   distant   it  may  be, 
Prouty    V.    Draper,    2    Story,    199; 
Whipple  V.  Cumberland  Cotton  Mfg. 
Co.,     3     Story,     84;     Hatliaway     v. 
Roach  2  W.  &  M.  6.3;  U.  S.  v.  San- 
born, 28  Fed.  299;  The  City  of  Au- 
gusta, C.   C.   A.,   80  Fed.  297,   303; 
Davis  V.  Smith,  199  Fed.  538.     But 
see   The   Gov.   Ames,   C.   C.   A.,   187 
Fed.  40,  49.     Even  when  he  has  not 
been  served  with  a  supoena.    U.  S.  v. 
Sanborn,  28  Fed.  299.     It  was  held 
by    the    District    Court    for    South 
Carolina    that    a    witness    for    the 
United    States,    voluntarily    coming 
to  and  attending  court  on   the   ver- 
bal   instructions   of    the    district    at 
torney,   is   entitled   to   the  per   diem 
and  mileage  fees,  although  his  resi- 
dence   is    out    of    the    district,    and 
more  than   one   hundred   miles   from 
the  place  at  which  the  court  is  held. 
Ee  Williams,   37   Fed.   325.     It  has 
been    held    that,    when    the    witness 
lives    without    the    district,    mileage 
for   only  one  hundred  miles   can  be 
taxed:   in  the  Second  Circuit  Anon., 
5  Blatchf.  134;   Eastman  v.  Sherry, 
37  Fed.   844;   The  Vernon,  36  Fed. 
113;  Haines  v.  McLaughlin,  29  Fed. 
70 ;  Buffalo  Ins.  Co.  v.  Prov.  &  Ston- 
ington  S.  S.  Co.,  29  Fed.  237;  Woo- 
ster  V.  Hill,  44  Fed.  819;  the  Third 
Circuit,  The  Progesso,  48  Fed.  239; 
The  Fourth   Circuit   in  a  civil  case, 
Sloss  I.  &  S.  Co.  V.  South  Carolina 


&  G.  R.  Co.,  75  Fed.  106;  the  Sixth 
Circuit,  Woodruff  v.  Barney,  1  Bond 
528,  Fed.  ('as.  17,  9sfi;  The  Vernon, 
36  Fed.  113,  Burrows  v.  Kansas  C. 
Ft.  S.  &  M.  R.  Co.,  54  Fed.  278. 
In  the  Seventh  Circuit,  Marks  v. 
Merrial  Paper  Co.,  C.  C.  A.,  203 
Fed.  16.  (In  Drcskill  v.  Parish,  5 
McLean  213,  it  was  held  that  in 
such  a  case  no  fees  or  mileage  could 
be  taxed,  see  Smith  v.  Chicago  & 
N.  W.  Ry.  Co.,  38  Fed.  321);  in 
tlie  Eighth  Circuit,  Pinson  v.  Atchi- 
son T.  &  S.  F.  R.  Co.,  54  Fed.  464; 
U.  S.  V.  Green,  196  Fed.  255;  and 
the  Ninth  Circuit,  Spaulding  v. 
Tucker,  2  Sawyer  50;  Haines  v. 
McLaughlin,  29  Fed.  70;  U.  S.  v. 
Southern  Pac.  Co.,  172  Fed.  909; 
II".  S.  V.  Southern  Pac.  Co.,  230  Fed. 
270. 

4*  Anderson  v.  Moe,  1  Abb.  (IT. 
S.)  299;  U.  S.  v.  Sanborn,  28  Fed. 
290;  The  Vernon,  36  Fed.  113;  The 
Syracuse,  36  Fed,  830;  Eastman  v. 
Sherry,  37  Fed.  844;  Simpkins  v. 
Atchison  T.  &  S.  F.  R.  Co.,  61 
Fed.  999;  Sloss  I.  &  S.  Co.  v.  S.  C. 
&■  G.  R.  Co.,  75  Fed.  106;  Hanchett 
V.  Hum])hrey,  93  Fed.  805;  Am. 
Bank  Protection  Co.  v.  City  Nat. 
Bank,  203  Fed.  715;  U.  S.  v.  Soutli- 
ern  Pac.  Co.,  230  Fed.  270.  Contra, 
Haines  v.  McLaughlin,  12  Sawyer, 
126;  Lillienthal  v.  Southern  Cal. 
Ry.  Co.,  61  Fed.  622. 

41  Burrow  v.  Kansas  City,  F.  S. 
&  M.  R.  Co.,  54  Fed.  278. 

42  Primrose    v.    Fennn.    113    Fell. 


2060 


COSTS 


[§419a 


A  witness  subpoenaed  by  the  prevailing  party  to  the  suit  can- 
not, upon  his  own  motion,  have  his  fees  that  remain  unpaid  taxed 
in  the  bill  of  costs  against  the  losing  party .*^  But  it  has  been 
held  that  witnesses  do  not  lose  their  right  to  mileage  and  per 
diem  fees  by  not  insisting  upon  prepayment ;  nor  by  the  fact  that 
they  were  in  attendance  ou  the  court  in  another  cause  between 
different  parties,  and  received  per  diem  and  mileage  fees  there- 
for.*^ When  a  person  has  been  served  with  a  subpoena  and  has 
received  money  for  traveling  expenses,  he  cannot  refuse  to  obey 
such  subpoena  because  the  proper  amount  of  mileage  has  not  been 
paid;  and  person  subpoenaed  as  witnesses  in  the  courts  of  the 
United  States,  if  they  have  the  means,  are  obliged  to  obey 
whether  their  fees  are  advanced  or  not.*^ 

§419a.  Disbursements  for  copies  of  papers.  The  Revised 
Statutes  expressly  provide  for  the  taxation  of  the  "lawful  fees 
for  exemplifications  and  copies  of  papers  necessarily  obtained  for 
use  on  trials. ' '  ^ 

When  copies  of  papers,  necessarily  obtained  for  use  on  the 
trial,  are  put  in  evidence,  and  no  order  is  made  rejecting  them, 
it  is  the  duty  of  the  clerk  to  allow,  on  taxation,  the  disburse- 
ments paid  for  them.^  So  when  obtained  and  the  complainant 
dismissed  his  bill  on  the  eve  of  trial.^* 

It  has  been  held  that  fees  paid  for  certified  copies  of  a  party's 
own  muniments  of  title  cannot  be  taxed,  since  he  is  presumed  to 
have  the  originals  in  his  possession,  unless  he  proves  the  con- 
trary ;  but  that  he  may  tax  fees  paid  for  transcripts  of  the  record 
of  suits  and  other  papers  on  which  he  relied  to  defeat  his  adver- 
sary's claim  of  title.^'' 

The  expense  of  a  certified  copy  of  the  file  label  and  application 
for  a  patent  in  suit  or  a  copy  of  the  opinion  and  of  the  decree  of 


375.     Contra,  O'Neil  v.  Kansas  City 
S.  &  M.   E.   Co.,  31  Fed.   663. 

43  O'Neil  V.  Kansas  City  S.  &  M. 
R.  Co.,  31  Fed.  663. 

44  Young  V.  Merchants '  Ins.  Co., 
29  Fed.  273. 

45  Norris  v.  Hassler,  23  Fed.  581 ; 
U.  S.  V.  Curling,  4  Biss.  509,  510; 
Hake  v.  Brown,  44  Fed.  734. 

•§419a.     lU.  S.  E.  S.,  983. 


2Wooster  v.   Handy,   23   Fed.  49. 

2a  Bone  v.  Walsh  Constr.  Co.,  235 
Fed.  901. 

2b  Ford  v.  Louisville,  N.  O.  &  T, 
Ey.  Co.,  45  Fed.  210.  The  cost  of 
copies  of  testimony  obtained  solely 
for  the  use  of  counsel  in  preparing 
for  trial,  Tesla  El.  Co.  v.  Scott,  101 
Fed.  524;  Atwood  v.  Jaques,  63  Fed. 
561. 


419b] 


BILLS    FOR   PRINTING    AND    LITHOGRAPHING 


2061 


the  court  in  the  case  may  be  allowed.^  Fees  paid  for  copies  of 
depositions  *  or  for  certified  copies  of  patents  when  opposing 
counsel  does  not  insist  that  certified  copies  should  be  offered  ^ 
cannot  be  taxed.  Nor  payments  for  certified  copies  of  the  opin- 
ions of  other  courts  or  of  officers  in  the  Patent  Office  which  were 
published  in  the  Federal  Reporter,  or  the  Official  Gazette,  or  any 
other  standard  or  official  publication.*^  It  has  been  said  that 
when  the  taxation  of  the  expense  of  certified  copies  of  foreip^n 
patents,  or  translations  thereof,  is  required,  a  certificate  of  the 
necessity  by  the  trial  judp:e,  or  by  some  other  judge  in  his  ali- 
sence,  should  be  submitted  to  the  clerk.'' 

Copies  of  papers  obtained  for  use  on  interlocutory  or  prelim- 
inary or  incidental  motions  or  hearings  are  not  obtained  for  use 
on  trials,  and  disbursements  in  procuring  them  have  been  dis- 
allowed.^ In  the  Second  Circuit  fees  paid  for  copies  of  opinions 
for  use  in  preparing  orders  are  usually  taxed.  In  the  Sixth  Cir- 
cuit the  notarial  fees  paid  for  affidavits  on  a  motion  are  taxed, 
but  not  the  expense  of  writing  the  affidavits  in  the  form  of  depo- 
sitions.^ The  taxation  of  transcripts  of  stenographers'  minutes 
is  previously  discussed.^** 

§  419b.  Bills  for  printing  and  lithographing-.  The  Revised 
Statutes  expressly  provide  for  the  taxation  of  the  ''amount  paid 
printers."^  Disbursements  for  printing  the  record,  evidence, 
and  other  papers  in  a  suit  in  equity  in  a  District  Court,  when 
requii-ed  by  rule,  in  the  First  ^  and  Second  '  Circuits,  the  Dis- 
trict of  Maryland,*  and  any  district  where  it  is  an  established 


8  Motion  Picture  Patents  Co.  v. 
Universal  Film  Mfg.  Co.,  232  Fed. 
263. 

4  Christensen  v.  General  Electric 
Co.,  248  Fed.  284. 

6  Motion  Picture  Patents  Co.  v. 
Universal  Film  Mfg.  Co.,  232  Fed. 
263. 

6  Ibid. 

7  Ibid. 

SWooster  v.   Handy,   23   Fed.   49. 

9  Atwooil   V.  Jaques.  fi.'i  Fed.  ofil. 

10  Supra,  §  418e. 

§419b.     lU.  S.  R.  S.,  §983. 
2  Jordan  v.  Agawam  Woollen  Co., 
3  Cliff.  239. 


3  Dennis  v.  Eddy,  2  Blatchf.  195; 
Hake  v.  Brown,  44  Fed.  734.  Where 
such  costs  had  been  taxed  against 
the  defendant,  who  subsequently  ap- 
pealed, it  was  held  that  he  must  pay 
them  to  the  respondent  before  he 
could  be  entitled  to  receive  from 
the  latter  copies  of  such  record  for 
use  in  making  up  the  transcript  up- 
on his  appeal.  Parsons  Xon-Skid 
Co.  V.  E.  J.  Willis  Co.,  176  Fed. 
176;  Christensen  v.  Gen.  Electric 
Co.,  248  Fed.  284. 

4  Detroit  Heating  &  Lighting  Co. 
V.  Kemp,  182  Fed.  847. 


I 


2062 


COSTS 


[§  419b 


practice  to  print  the  same  before  tlie  final  hearing,^  but  not  in 
the  District  of  South  Carolina,^  are  taxable  as  costs.  Disburse- 
ments for  printing  testimony  and  other  papei-s,  when  not  re- 
quired b}'  rule  or  special  order  or  by  the  established  practice,' 
cannot  be  taxed.  Thus,  in  the  Second  »  and  in  the  Third  ^  Cir- 
cuits, the  expense  of  printing  exhibits  in  the  District  Court  can- 
not be  taxed ;  although  it  seems  tliat  such  a  disbursement  may  be 
taxed  for  printing  them  in  the  Circuit  Court  of  Appeals.^'' 

In  the  Third  Circuit  the  reasonable  cost  of  making  photo-litho- 
graphs of  exhibits,  when  necessarily  made,  in  the  court  of  first 
instance  may  be  taxed. ^^ 

When  printing  or  lithographing,  otherwise  taxable,  is  done 
by  the  successful  party  he  may  tax  the  reasonable  cost  but  not 
any  overhead  charge. ^^ 

The  expense  of  printing  superfluous  papers  should  be  disal- 
lowed, but  in  such  a  case  it  is  the  safer  practice  to  apply  to  the 
court  before  the  printing  that^tliese  be  omitted  from  the  tran- 
script or  the  printed  papers.^^ 

The  appellant  or  plaintitf  in  error,  when  allowed  costs,  may 
tax  his  disbursements  for  clerk's  fees  and  for  printing  the  rec- 
ord.^* Where,  upon  an  appeal  from  a  decree  dismissing  a  bill 
which  was  affirmed  with  costs,  the  defendant  had  taken  a  cross- 
appeal  from  the  dismissal  of  his  cross-bill,  which  appeal  was  dis- 
missed, the  cross-appellant  was  allowed  to  tax  the  fees  paid  for 
one-half  the  cost  of  printing  the  record.^^  AVhere  the  costs  of 
printing  the  record  on  an  appeal  had  been  paid  by  a  receiver 
under  an  order  out  of  the  fund  in  his  hands,  the  defendant,  who 
finally  succeeded  was  allowed  to  tax  these  disbursements,^^  but 


*  Detroit  Heating  &  Lighting  Co. 
V.  Kemp,  182  Fed.  847. 

eLee  V.   Simpson,  42   Fed.  434. 

7  Detroit  Heating  &  Lighting  Co. 
V.  Kemp,  182  Fed.  847;  Atwood  v. 
Jaques,  63  Fed.  561;  Spaulding  v. 
Tucker,  2   Saw.  50. 

•  Edison  v.  Am.  Mutoscope  Co., 
117  Fed.  192. 

9  Keasbey  &  Mattison  Co.  v.  Am. 
Magnesia  &  Covering  Co.,  149  Fed. 
439. 

10  Edison  v.  Am.  Mutoscope  Co., 
117  Fed.  192. 

11  Duplex  Metals  Co.  v.  Standard 


Underground    Cable    Co.,    218    Fed. 
269. 

12  Ibid. 

13  Tompkins  v.  St.  Begis  Paper 
Co.,  240  Fed.  838.  Costs  of  unneces- 
sary printing  were  enforced  in  B. 
&  S.  F.  Co.  V.  Kraetze,  150  U.  S. 
Ill,  37  L.  ed.  1019. 

14  Supreme  Court  Eule  10;  Cir- 
cuit  Court   of  Appeals   Eule   23. 

16  Nichols,  Shepard  &  Co.  t. 
Marsh,  131  U.  S.  401. 

16  Ferguson  v.  Dent,  46  Fed.  88, 
94. 


§  419e] 


PREMIUMS    PAID    SURETY    COMPANIES 


2063 


not  tlie  receiver's  fees  and  llic  necessary  disbursements  inei- 
dental  to  the  receivership.^'  Disbursements  for  printing  objec- 
tions to  a  petition  to  the  Supreme  Court  in  its  original  jurisdic- 
tion for  a  writ  of  mandamus  are  taxable. ^^ 

Disbursements  for  priiitinji'  briefs  on  appeal,  in  error,  or  in 
original  proceedings  in  1he  Supreme  Court  or  Circuit  Courts 
of  Appeals,  are  not  taxable,^®  except  on  admiralty  appeals  to 
the  Circuit  Court  of  Appeals  when  in  the  Second  Circuit  they 
are  taxed.  Disbursements  for  printing  briefs  which  the  rules 
require  to  be  printed  are  taxable  in  the  District  Courts  in  the 
Second  Circuit,^''  even  when  the  brief  is  printed  after  the  argu- 
ment.^^ 

§419c.  Premiums  paid  surety  companies.  In  the  Second  ^ 
and  Third  ^  Circuits,  premiums  on  bomls  and  stipulations  for 
costs  in  admiralty;  in  tlie  Second,^  Third,*  and  Fifth  ^  Circuits, 
but  not  in  the  Sixth  Circuit,^  nor  in  bankruptcy  in  the  Fourth 
Circuit  '  premiums  on  supersedeas  bonds ;  premiums  on  appeal 
and  supersedeas  bonds  in  the  Second,*  and  Ninth  ^  Circuits  but 
not  in  the  First,^^  Third  ^^  or  Sixth.^^  Circuits;  premiums  on 
bonds  or  stipulations  given  to  secure  the  release  of  vessels ;  and 


17  Ferguson  v.  Dent,  46  Fed.  88, 
96;  Elk  F.  O.  &  G.  Co.  v.  Jennings, 
90  Fed.  767. 

IS  Ex  parte  Hughes,  114  U.  S. 
548,  29  L.  ed.  281;  Gird  v.  Cali- 
fornia Oil  Co.,  60  Fed.  1011. 

19  Ibid. 

20  Hake  V.  Brown,  44  Fed.  734; 
Dennis  v.  Eddy,  12  Blatchf.  195. 
Such  an  item  was  taxed  in  the 
Third  Circuit,  Bailey  v.  Mississippi 
Home  Tel.  Co.,  254  Fed.  359.  Not 
in  the  Ninth  Circuit,  where  the  rules 
do  not  direct  that  briefs  be  printed. 
Gird  V.  California  Oil  Co.,  60  Fed. 
1011. 

21  Sackett  v.  Smith,  46  Fed.  39. 

§  419c.  1  Edison  v.  Am.  Muto- 
scope  Co.  (S.  D.  N.  Y.),  117  Fed. 
192. 

2  The  BencliflP  (E.  D.  Pa.),  158 
Fed.   377. 


3  Edison  v.  Am.  Mutoscope  Co., 
117   Fed.    192. 

4  Jones  t.  Edward  B.  Smith  Co., 
183  Fed.  990. 

5  Smythe  v.  New  Orleans  Land 
Co.,  C.  C.  A.,  184  Fed.  892. 

6  Lee  Injector  Mfg.  Co.  v.  Pen- 
berthy  Injector  Co.,  C.  C.  A.,  109 
Fed.  964. 

Tlie  Hoyt,  119  Fed.  987. 

8  The  Volund,  C.  C.  A.,  181  Fed. 
643. 

9  The  Europe,  C.  C.  A.,  190  Fed. 
475. 

10  The  Gov.  Ames,  199  Fed.  587; 
aff'd  C.  C.  A.,  187  Fed.  40,  48. 

11  The  Texas,  C.  C.  A.,  22(5  Fed. 
897. 

12  Parkerson  v.  Borst,  C.  C.  A., 
256  Fed.   827. 


2064  COSTS  [§  420 

in  the  Second  Circuit  the  amounts  paid  individuals  in  a  foreign 
country  for  giving  such  security ;  have  been  taxed. ^^ 

§420.  Miscellaneous  disbursements.  The  Revised  Statutes 
provide  that  "the  bill  of  fees  of  the  clerk,  marshal,  and  attor- 
ney, and  the  amount  paid  printers  and  witnesses,  and  lawful 
fees  for  exemplifications  and  copies  of  papers  necessarily  ob- 
tained for  use  on  trials  in  cases  where  by  law  costs  are  recover- 
able in  favor  of  the  prevailing  party,  shall  be  taxed  by  a  judge 
or  clerk  of  the  court,  and  be  included  in  and  form  a  portion  of 
a  judgment  or  decree  against  the  losing  party.  Such  taxed  bills 
shall  be  filed  witli  the  papers  in  the  cause. "  ^  The  Federal  courts 
are  not  absolutely  limited  in  the  taxation  of  costs  to  such  items 
as  are  specifically  named  in  the  statute."  It  has  been  held  that, 
as  to  other  matters,  the  State  practice  should  be  followed,  except 
where  that  would  produce  injustice.^  Fees  paid  an  attorney  for 
the  examination  of  a  witness  before  a  master  or  special  examiner,* 
payments  to  an  attorney  for  traveling  expenses,^  payments  to 
messengers,^  cannot  be  taxed. 

Disbursements  for  surveys  and  plans  necessitated  by  an  order 
to  make  a  pleading  more  definite  and  certain,  cannot  be,'  but  the 
cost  of  maps  necessarily  used  on  a  trial  have  been  taxed.'  In 
admiralty,  the  expense  of  taking  photographs  showing  injuries  to 
a  vessel  and  for  interpreters'  fees  necessary  to  obtain  the  testi- 
mony of  foreign  witnesses  were  taxed.*  Disbursements  for  copies 
of  models  in  the  Patent  Office  used  as  evidence  are  taxable, i**  but 
not  disbursements  for  other  models. ^^ 

13  The  Hurstdale,  171  Fed.  607.  4  Strauss  v.  Meyer,  22  Fed.  467. 

§  420.     1 U.  S.  E.  S.,  §  983.  6  Wooster   y.   Handy,   23   Fed.   49. 

2  Spanlding  v.   Tucker,   2  Sawyer,  6  Ibid. 

50;    Gunther  v.   Liverpool,   L.   &   G.  7  New   Hampshire   L.    Co.    v.    Til- 
Ins.  Co.,  10  Fed.  830;  U.  S.  v.  Min-  ton,  29  Fed.  764. 
neapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.,  8  Lilienthal   v.    Southern   Cal.   Ry. 
235  Fed.  951.  Co.,  61  Fed.  622. 

3  Huntress  v.  Epsom,  15  Fed.  732,  9  The  S.  V.  Luckenbach,  C.  C.  A., 
expense    of    a    review   by    the    jury.  197  Fed.  888. 

Primrose    v.    Fenno,    113    Fed.    375,  10  Wooster  v.  Handy,  23  Fed.  49. 

377;   where  auditors'  fees  were  ap-  11  Ibid.     Kelly  v.   Springfield  Ry. 

portioned.     In  Whipple  v.   Cumber-       Co.,  83  Fed.  183,  186;  Bone  v.  Walsh 
land  Mfg.  Co.,  3  Story,  84;  the  cost       Const.  Co.,  235  Fed.  901. 
of   a   survey  was   apportioned.      See 
B«  Peterson,   II.   S.    Sup.    Ct.,   June 
1,  1920. 


§420] 


MISCELLANEOUS    DISBURSEMENTS 


2065 


It  has  been  held  that  notarial  fees  for  presentment  and  protest 
of  a  note,  althoujjh  paid  before  suit  was  brought,  are  considered 
as  costs,  not  as  damages. ^^  When  the  defendant  finally  pre- 
vailed, and  a  decree  directing  him  to  account  was  set  aside,  he 
was  allowed  to  include  in  his  l)ill  of  costs  the  fees  which  he  had 
been  obliged  to  pny  the  mastei'.^^  A  party  who  Hnally  prevails 
cannot  tax  the  eosts  he  has  paid  upon  the  over-ruling  of  his  de- 
murrer ^*  or  for  unsuccessful  intermediate  appeals. ^^  Where  a 
j)arty  obtains  a  i)reliminary  injunction  against  the  proseen- 
tion  of  an  action  at  law,  a  continuance  of  which,  ui)on  a  final 
hearing,  is  denied,  it  is  ])r()per  to  charge  in  the  decree  in  equity 
with  the  costs  of  th-e  action  at  law.^'''  In  the  distribution  of  the 
assets  of  an  insolvent  corporation,  the  costs  in  actions  brougiit 
before  the  insolvency  proceedings,  which  were  allowed  to  eon- 
tinue  so  as  to  establish  the  claims  against  the  assets,  were  taxed 
as  part  of  the  costs  of  the  case  in  which  the  distribution  took 
place. 1'  Where  a  gas  company,  as  a  condition  for  an  injunction 
enjoining  the  enforcement  of  a  statute  redueing  the  ])rice  of  gas, 
dei)osited  with  the  master  the  excess  collected  above  the  former 
rate  and  was  finally  unsuccessful,  it  was  held  that  the  interest 
u})()n  this  fund  should  be  applied  to  the  cost  of  the  administra- 
tion, til  us  relieving  the  gas  company  from  this  expense  and  giv- 
ing to  the  gas  payers  no  indemnity  for  their  loss  of  interest.*® 
Where  a  judgment  was  reversed,  with  costs  to  the  plaintiff  in 
error,   and  the  defendant    in   (»ri-or  succeeded   upon   the  second 


I 


12  Baker  v.  Howoll,  44  Fod.  11:5; 
supra,  §  6. 

13  American  T).  I).  Co.  v.  Sulli- 
van  M.  Co.,  :^2   Fed.  5.j2. 

16  New  York  B.  &  P.  Co.  v.  X. 
J.  C.  S.  &  R.  Co.,  ;52  Fed.  755.  For 
the  eosts  of  a  receivership,  see  Kelt 
V.  Trenchard,  C.  C.  A.,  146  Fed.  245, 
NUi>ra.  SS  .'{24,  409. 

16  Troxell  v.  Delaware  L.  &  W. 
R.  Co.,  205  Fed.  8:50;  Cincinnati 
H.  &  D.  Ry.  Co.  V.  Sheriff  of  City 
of  N.  Y.,  C.  C.  A.,  207  Fed.  768; 
Aiello  V.  Crampton,  C.  C.  A.,  20:i 
Fed.  695. 

17  Spring  Garden  Ins.  Co.  v. 
Anuisenient  Syndicate  Co.,  C.  C.  A., 


178  Fed.  519.  Where  a  suit  was 
brought  to  enjoin  actions  at  law 
upon  the  ground  that,  in  equity,  the 
plaintiff  had  no  causes  of  action, 
with  an  alternative  prayer  for  an 
apportionment  of  the  damages 
against  the  several  complainants  in 
case  the  court  slioiild  hold  that  the 
plaintiffs  had  a  right  to  sue;  it  was 
held  that  the  eosts  of  the  actions 
at  law  might  be  included  in  the 
judgment  in  equity  against  the 
comjilainants. 

18  Robinson     v.     Mutual     Reserve 
Life  Ins.  Co.,  182  Fed.  850. 

19  Central  Tr.  Co.  v.  New  Amster- 
dam Gas  Co.,  167  Fed.  98;{. 


2066 


COSTS 


[§421 


trial,  he  was  not  allowed  to  tax  as  a  disbursejnent  the  amount  he 
had  paid  in  settlement  of  the  judgment  for  the  costs  of  error.^" 

An  allowance  of  costs  in  a  decree  or  mandate  refers  to  the  ordi- 
nary costs  incident  to  the  litigation  and  does  not  include  the  ex- 
penses of  a  receiver.21  But  where  it  was  stipulated  that  the 
costs  and  expenses  should  be  taxed  one-half  against  the  parties 
and  intervening  creditors  and  one-half  against  the  bankrupt,  the 
loss  incurred  by  the  receiver  in  a  litigated  transaction  was  therein 
included.  ^'^ 

§  421.  Costs  out  of  the  fund.  Costs  are  paid  out  of  a  fund 
or  estate  in  the  course  of  distribution  by  a  court  of  equity,  to 
trustees  who  have  been  obliged  to  engage  in  litigation  for  the 
benefit  of  the  estate,  and  to  persons  who  have  been  successful  in 
suits  brought  by  them  on  behalf  of  themselves  and  others  simi- 
larly situated.^  The  expression  "trustees"  is  used  here  in  the 
broadest  sense  of  the  word,  as  including  not  only  those  appointed 
by  a  deed  of  trust,  but  also  agents,  receivers,^  and  personal  rep- 
resentatives of  a  decedent.^  All  of  these,  when  under  a  bill  for 
an  accounting  they  account  fairly  and  pay  the  balance  due  from 
them  into  court,  are  entitled  to  their  costs,*  provided  that  they 
have  not  acted  unconscientiously  in  the  suit  *  or  in  the  previous 
administration  of  their  trust.^  The  same  is  true  when  a  suit  is 
honestly  commenced  by  one  of  them  for  tlie  directions  of  the 
court  concerning  his  trusteeship^ 


20  Jennings  v.  Burton,  177  Fed. 
603. 

21  Keel  T.  Trenchard,  C.  C.  A., 
146  Fed.  245. 

22  King  Hardware  Co.  v.  J.  T. 
Christopher  Co.,  C.  C.  A.,  222  Fed. 
224. 

§  421.  1  Cowdrey  v.  Galveston, 
H.  &  H.  R.  Co.,  93  U.  S.  352,  23  L. 
ed.  950;  Trustees  v.  Greenough,  105 
U.  S.  527,  26  L.  ed.  1157;  Central 
R.  &  B.  Co.  V.  Pettus,  113  U.  S. 
116,  28  L.  ed.  915. 

2  Atty.  Gen.  v.  City  of  London,  1 
Ves.  Jr.  243;  s.  c,  3  Bro.  C.  C.  171; 
Curteis  v.  Candler,  Mad.  &  Geld. 
123;  Stuart  v.  Boulware,  133  U.  S. 
78,  33  L.  ed.  568. 


3  Rashleigh  v.  Master,  1  Ves.  Jr. 
201;   Samuel  v.  Jones,  2  Hare,  246. 

4  Atty.  Gen.  v.  City  of  London,  1 
Ves.  Jr.  243;  S.  C,  3  Bro.  C.  C.  171; 
Rashleigh  v.  Master,  1  Ves.  Jr.  201; 
Sanauel  v.  Jones,  2  Hare,  246;  Cur- 
teis V.  Candler,  Mad.  &  Geld.  123. 

8  Henley  v.  Philips,  2  Atk.  48; 
Lloyd  V.  Spillat,  3  P.  Wma.  344, 
346. 

6  Howard  v.  Rhodea,  1  Keen,  581 ; 
0  'Callahan  v.  Cooper,  5  Ves.  11, 
129;   Hide  v.  Haywood,  2  Atk.  12. 

7  Hicks  V.  Wrench,  Mad.  &  Geld. 
93;    Henley   v.    Philips,    2    Atk.    48. 


§421J 


COSTS    OUT    OF    THE    FUND 


2067 


When  a  foreclosure  suit  is  bi'ouglit  at  the  i-e(iuest  of  certain 
hondliolders,  the  expenses  of  the  trustee  and  ils  counsel,  should 
be  charged  upon  the  proceeds  of  the  sale  and  not  against  those 
at  whose  instances  the  suit  was  brought.^ 

Counsel  for  a  trustee  are  not  ordinarily  entitled  to  compen- 
sation out  of  the  funds  collected  by  a  receiver  for  services  ren- 
dered after  the  receivership  was  constituted.^  A  mere  depositary 
should  be  allowed  no  costs  or  counsel  fees  beyond  the  expense  of 
a  watching  retainer  to  his  attorney,  which,  however,  should  also 
include  the  expense  of  preparing  his  answer. ^^  lint  in  suits 
brought  by  or  against  any  of  them,  except  possibly  receivers,  to 
which  a  stranger  is  a  party,  they  are  usually,  if  unsuccessful, 
liable  personally  to  him  for  the  costs  as  between  party  and 
party,!^  which  costs,  together  with  the  expenses  of  the  suit,  will 
be  allowed  them  upon  their  accounting,!^  if  the  suit  was  prose- 
cuted or  defended  in  good  faith  for  the  benefit  of  their  trust." 
The  trustee  is  not  entitled  to  compensation  where  he  has  acted 
in  the  interest  of  one  of  the  parties  to  a  controversy  concerning 
a  right  to  share  in  the  trust  funds.^*  A  trustee  of  a  mortgage 
was  refused  compensation,  out  of  a  fund  collected  by  him,  for 
his  expenses  in  defending  a  suit  brought  by  a  party,  to  whom 
the  fund  belonged.!^ 

Costs  will  also  be  paid  out  of  a  fund  under  the  control  of  a 
court  of  equity  to  persons  who  have  been  successful  in  a  suit 
concerning  it,  brought  by  them  in  behalf  of  themselves  and  others 
similarly    situated   with    them.^^      Instances   of    this    are    suits 


•  Fidelity  Tr.  Co.  v.  Hutchinson 
Chem.  &  Alkali  Co.,  C.  C.  A.,  221 
Fed.  63. 

9  Guaranty  Tr.  Co.  v.  Chicago 
Rys.  Co.,  C.  C.  A.,  185  Fed.  411. 
But  see  Burden  Central  Sugar-Re- 
fining  Co.  v.  Ferris  Sugar-Mfg.  Co., 
C.  C.  A.,  87  Fed.  810;  Haight  & 
Freese  Co.  v.  Weiss,  C.  C.  A.,  165 
Fed.  4.30,  164  Fed.  688. 

lOFullerton  v.  Bigelow,  C.  C.  A., 
177  Fed.  359. 

11  Edwards  v.  Harvey,  G.  Cooper, 
40;  Poole  V.  Franks,  1  MoHoy.  78; 
Westley  v.  Williamson,  2  Molloy, 
458.     See   §  313.     But  see   Tug.  R. 


C.  &  S.  Co.  V.  Brigel,  C.  C.  A.,  70 
Fed.  647,  cited  supra,  S  409. 

12  Cowdrey  v.  Galveston,  H.  &  H. 
R.  Co.,  93  U.  S.  352,  23  L.  ed.  950; 
Humphrys  v.   Moore,  2   Atk.   108. 

13  Henley  v.  Philips,  2  Atk.  48; 
Lloyd  V.  Spillat,  3  P.  Wms.  344, 
346;  Central  Tr.  Co.  v.  Valley  R. 
Co.,  55  Fed.  903. 

14  Pike  V.  Cincinnati  Realty  Co., 
C.  C.   A..  179   Fed.  97. 

16  Western  Union  Tel.  Co.  v.  Bos- 
ton S.  T).  &  Tr.  Co.,  C.  C.  A.,  112 
Fed.  37. 

16  Trustees  v.  Greenough,  105  U. 
S.  527,  26  L.  cd.  1157;  Central  R.  & 


2068 


COSTS 


[§421 


brought  b}-  a  single  creditor  for  a  general  administration  of  as- 
sets,^' by  a  legatee  against  an  executor  for  the  benefit  of  the  es- 
tate,^* by  a  single  beneficiary  of  a  trust  to  prevent  a  loss  to  the 
trust  estate,^^  and  by  a  stockholder  for  the  benefit  of  the  corpora- 
tion.^" Disbursements  paid  by  a  part  of  the  creditors  for  the 
investigation  by  an  accountant  of  the  books  of  an  insolvent 
corporation,  which  resulted  in  the  realization  of  a  large  sura  to 
the  receivership  were  repaid  out  of  the  fund.^^  Creditors  who 
are  allowed  to  intervene  in  such  a  suit  are  not  ordinarily  en- 


B.  Co.  V.  Pettus,  113  U.  S.  116,  28 
L.  ed.  915;  Ex  parte,  Jaffray,  Be 
Waite  &  Crocker,  1  Low.  321;  Ex 
parte  Plitt,  2  Wall.  Jr.  453;  Stew- 
art V.   C.   &  O.   C.   Co.,   5  Fed.   149. 

17  Bennett  v.  Going,  1  Molloy, 
527;  Hare  v.  Eose,  2  Ves.  Sen.  558. 
Robinson  v.  Mutual  Reserve  Life 
Ins.  Co.,  182  Fed.  850,  where  the 
counsel  for  the  complainant  were 
given  an  allowance  for  services,  ben- 
eficial to  all  the  creditors,  which 
were  rendered  after  the  appointment 
of  the  receivers.  A  solicitor,  em- 
jiloyed  by  the  complainant  after  the 
suit  had  been  brought  and  the  re- 
ceiver appointed,  was  not  allowed  a 
counsel  fee  from  the  fund  when  he 
had  rendered  no  services  beneficial 
to  it.  Barker  v.  Southern  Bldg.  & 
Loan  Ass'n.,  181  Fed.  638;  Central 
Tr.  Co.  V.  U.  S.  Light  &  Heating 
Co.,  C.  C.  A.,  233  Fed.  420.  See, 
however,  Mason  v.  Codwise,  6  J. 
Ch.   (N.  Y.)   183. 

ISFraser  v.  Cole,  C.  C.  A.,  214 
Fed.  556. 

19  Trustees  v.  Greenough,  105  U . 
S.   527,  26  L.   ed.   1157;    Stewart  v. 

C.  &  O.  C.  Co.,  5  Fed.  149. 

80  For  allowances  of  attorneys 
fees  to  minority  stockholders,  see 
Meeker  v.  Winthrop  Iron  Co.,  17 
Fed.  48;  William  Firth  Co.  v.  Mil- 
len  Cotton  Mills,  129  Fed.  141;  re- 
versed   s.   c,   as   Lamar   v.    Hall   & 


Wimberly,  C.  C.  A.,  129  Fed.  79; 
McCourt  v.  Singers-Bigger,  C.  C. 
A.,  145  Fed.  103,  holding  that  a 
stockholder,  who,  by  his  suit,  re- 
covered a  fund,  was  entitled  to  be 
paid  his  attorney's  fee  and  the 
other  expenses  of  the  litigation,  but 
that  other  stockholders  and  officers, 
who  resisted  such  recovery  by  de- 
fending in  the  name  of  the  corpora- 
tion, were  not;  Thompson  v.  Romar, 
C.  C.  A.,  258  Fed.  339,  where  a  fee 
was  allowed  for  the  services  of  the 
counsel  who  brought  a  former  suit 
in  the  State  court  for  the  same  re- 
lief; Grant  v.  Lookout  Mountain 
Co.,  93  Tenn.  691,  27  L.R.A.  98; 
Alexander  v.  Atlanta,  etc.,  R.  R. 
Co.,  113  Ga.  193,  54  L.R.A.  305; 
Forrester  v.  Bostor,  etc.,  Co.,  29 
Mont.  397,  74  Pac.  1088;  CoUey 
V.  Wolcott,  C.  C.  A.,  187  Fed.  595. 
See  Singers-Bigger  v.  Young,  C.  C. 
A.,  166  Fed.  82,  86.  But  see  Kin- 
ney V.  Columbia  Sav.  &  L.  Ass'n, 
113  Fed.  359;  Cuyler  v.  Atlanta  & 
N.  C.  R.  Co.,  132  Fed.  570. 

21  Sands  v.  E.  S.  Greeley  &  Co., 
83  Fed.  772;  for  a  case  where  the 
creditors  who  advanced  the  money 
amounting  to  $3,500  to  prosecute 
claims  belonging  to  the  estate  were 
given  the  entire  proceeds  of  the 
litigation.  See  Cornell  v.  Nichols  & 
Langworthy  Mch.  Co.,  C.  C.  A.,  201 
Fed.  320,  323. 


§421] 


COSTS   OUT   OF    THE    FIND 


2U69 


titled  to  an  allowance, '^'^  althougii  if  their  services  have  been 
beneticial  to  tiic  fund  an  allowance  may  be  made  a  counsel  fee 
therefrom.^' 

Comjiensatioii  lias  ])oeii  allowed  in  a  similar  case  to  a  parly 
who  by  his  lititijation  had  henetited  the  fund,  althoujrh  he  event- 
ually failed  to  collect  his  own  claim  against  it.^*  Hut  not  where 
the  litipfation  was  instituted  for  the  collection  of  a  claim,  the 
greater  part  of  which  was  disallowed  and  the  assets  of  the 
defendant  placed  in  llic  hands  of  a  receiver  appointed  in  an 
ancillary  proceeding.^^  Where  attorneys  representing  certain 
heirs  in  litigation  to  recover  land  procured  the  appointment  of 
a  guardian  ad  litem  of  an  infant  heir,  who  w^as  made  the  defend- 
ant, and  such  guardian  appeared  and  was  allowed  a  fee,  it  was 
held  that  they  could  not  afterwards  claim  compensation  from 
the  minor's  interest  because  their  services  inured  to  his  ben- 
efit."^ 

A  decree  enjoining  the  waste  of  corporate  assets  cannot 
award  a  counsel  fee  to  the  complainant  or  his  attorney  when 
there  is  no  fund  collected  for  distribution.^"^     The  attornev  for 


22  Eobinson  v.  Mutual  Keserve 
Life  Insurance  Co.,  182  Fed.  8.50. 

23  Equitable  Trust  Co.  v.  N.  Y.  v. 
Western  Pac.  Ry.  Co.,  2.36  Fed.  814. 
Attorneys  for  minority  stock  and 
bondholders  who  did  not  participate 
in  the  reorganization. 

24  Ex  parte  Plitt,  2  Wall.  Jr.  4.53; 
Fechheimer  v.  Baum,  4.3  Fed.  719, 
730;  Central  Tr.  Co.  v.  Condon,  C. 
C.  A.,  67  Fed.  84,  111;  D.  G.  Tomp- 
kins Co.  V.  Chester  Mills,  90  Fed. 
37.  But  see  Weed  v.  Central  Ga. 
Ey.  Co.,  100  Fed.  162.  See  U.  S.  v. 
Boyd,  79  Fed.  8.58;  Jefferson  Hotel 
Co.  V.  Brumbaugh.  C.  C.  A.,  168 
Fed.  867,  where  the  fund  was  dis- 
tributed among  sub-contractors  and 
creditors  of  the  complainant;  Haehn- 
len  V.  Drayton,  C.  C.  A.,  192  Fed. 
300,  where  the  first  decree  obtained 
by  the  attorneys  was  set  aside  for 
want  of  notice  to  the  trustee  under 
the  mortgage,  but  a  substituted  de- 
cree     was      subsequently      entered 

Fed.  Prac.  Vol.  11—60 


founded  ujion  the  pleading  which 
they  had  filed.  In  such  a  case, 
where  the  order  appointing  the  re- 
ceiver was  reversed,  the  allowance 
of  compensation  to  the  solicitor  who 
procured  the  appointment  was  also 
set  aside.  Jacksonville,  T.  &  K. 
W.  Ry.  Co.  V.  American  Const.  Co.. 
.57  Fed.  66.  Where  a  bill  for  the 
dissolution  of  a  corporation  was  dis- 
missed because  a  suit  for  the  same 
purpose  had  been  previously  brought 
in  the  State  where  it  was  incorpor- 
ated, it  was  held  that  the  corpora- 
tion was  not  entitled  to  an  allow- 
ance for  counsel  fees.  Groom  v. 
Mortimer  Land  Co.,  C.  C.  A.,  192 
Fed.  849. 

26  Kimball  v.  Atlantic  States  Life 
Ins.  Co..  223  Fed.  463. 

26Tull    V.    Nash.    C.    C.    A..    141 
Fed.  557. 

27  Davidson    v.    Am.    Blower    Co.. 
245  Fed.  773. 


2070 


COSTS 


[§421 


minority  stockholders  who  bring  such  a  suit  may  perhaps  collect 
their  compensation  from  the  corporation. ^^ 

In  some  cases,  courts  of  e(iuity  have  allowed  to  the  solicitors 
of  an  insolvent  defendant,  the  estate  of  which  was  administered 
in  the  suit,  a  counsel  fee  from  the  fund.^^  But  this  will  not  be 
done  when  after  the  payment  of  debts  there  is  a  surplus,  in 
which  case  the  remedy  of  the  attorney  is  against  his  client.^" 

Before  the  statute  upon  the  subject,^^  costs  and  a  counsel  fee 
out  of  the  fund  were  usually'  allowed  to  the  successful  party, 
upon  a  bill  of  interpleader  or  a  bill  in  the  nature  of  an  inter- 
pleader.^2  Such  costs  are  in  the  distribution  of  the  fund  paid 
before  all  claims  against  it  except  for  taxes. ^^  Those  of  prior 
lienors  who  are  not  benefited  by  the  litigation  3*  and  do  not  adopt 
the  proceeding,^^  and  the  claims  for  the  compensation  and  re- 
embursements  of  trustees  who  have  not  been  guilty  of  niiscon- 
duct.36 

The  same  rule  applies  to  a  suit  brought  by  a  single  creditor 
of  the  estate  against  an  executor  or  administrator  for  the  satis- 
faction of  his  own  claim.'''  In  such  cases  the  personal  rep- 
resentative can  only  recover  his  costs  from  that  part  of  the 
estate  which  remains  after  the  complainant  has  been  paid  the 
full  amount  of  his  claim  with  costs,  even  though  the  creditor  thus 
sweeps  away  the  entire  estate.'*  Not  so,  however,  when  a  bill 
is  filed  by  one  creditor  in  behalf  of  himself  and  the  rest  for  a 
general  administration  of  assets;  in  which  case  the  personal 
i-epresentative  is  always  entitled  to  his  costs  out  of  the  fund 
unless  he  has  forfeited  them  by  his  misconduct.'^     When  the 


28  Ibid. 

29  Huff  V.  Bidwell,  C.  C.  A.,  218 
Ted.  6;  Bowlker  v.  Haight  &  Freese 
Co.,  S.  D.  N.  Y.,  1906,  per  Lacombe, 
J.,  in  which  the  author  was  counsel. 

30  Huff  V.  Bidwell,  C.  C.  A.,  218 
Fed.  6. 

3139  St.  at  L.  929,  Comp.  St., 
§991a;    sitirra,   §§  157,   158. 

32  Dunlop  V.  Hubbard,  19  Vesey, 
205;  Dowson  v.  Hardcastle,  2  Cox 
Eq.  279;  Louisiana  State  Lottery 
Co.  V.  Clark,  16  Fed.  20;  Mutual 
Life  Ins.  Co.  v.  Lane,  151  Fed.  276; 
supra,  §§  157  and  158. 


33  Huff  V.  Bidwell,  C.  C.  A.,  218 
Fed.  6. 

34Buel  V.  Kanawha  Corp.,  201 
Fed.  762. 

36  Huff  V.  Bidwell,  C.  C.  A.,  218 
Fed.  6. 

36  Bennet  v.  Going,  1  MoUoy,  529. 

37  Humphreys  v.  Moore,  2  Atk. 
108;  Davy  v.  Seys,  Moseley,  204. 

38  Adair  v.  Shaw,  1  Sch.  &  Lef. 
243;  280;  Uvedale  v.  Uvedale,  3 
Atk.  117. 

39  Bennet  v.  Going,  1  Molloy,  529 ; 
Young  V.  Everest,   1  R.   &  M.  426; 


H22] 


COSTS  AS  BETWEEN  SOLICITOR  AXD  CLIENT 


2071 


laches  or  inaction  of  the  trustee  under  a  mortgage  has  caused  a 
suit  by  a  bondholder  or  a  junior  incumbrancer  to  preserve  the 
mortgaged  propert}',  and  the  former's  action  in  the  suit  has  been 
of  no  special  value  to  the  fund,  he  may  be  disallowed  compen- 
sation from  the  fund  until  after  satisfaction  of  the  beneficiaries 
who  appeared  by  their  own  counsel  in  the  suit.*® 

At  least  without  the  consent  of  the  Attorney-General  a  United 
States  District  Attorne}'  cannot  be  allowed  a  counsel  fee  out  of 
a  fund  collected  by  him  for  a  receiver  who  was  appointed  in  a 
suit  by  the  United  States.*^  The  amount  of  the  judgment  against 
the  defendant  cannot  be  increased  by  such  a  fee.*^  Costs  out  of 
fund  should  not  be  allowed  in  advance  of  the  general  distribu- 
tion of  the  assets,  or  until  all  the  persons  interested  have  an 
opportunity  to  be  heard.*^ 

An  allowance  may  be  made  directly  to  the  attorney  or  to  his 
client  in  the  discretion  of  the  court,**  and  the  court  in  determin- 
ing the  amount  thereof  may  properly  be  guided  by  the  judge's 
knowledge  of  the  extent  and  value   of  the  services  rendered.*^ 

§  422.  Costs  as  between  solicitor  and  client.  Costs  payable 
out  of  fund  in  court  are  termed  costs  as  between  solicitor  and 
elieut.^  Costs  as  between  solicitor  and  client  include  all  reason- 
able expenses  and  counsel  fees,  and  are  not,  like  costs  as  between 
pai'ty  and  party,  confined  to  the  amount  named  in  the  statute. ^ 
These  are  not  infi'e<|uently  estimated  upon  a  percentage  basis 


Minuse  v.  Cox,  5  J.  Ch.  (N.  Y.)  441, 
9  Am.  Dec.  3i;i. 

40  See  D.  A.  Tompkins  Co.  v. 
Chester  Mills,  90  Fed.  37;  Bouml 
V.  South  Carolina  Ey.  Co.,  59  Fed. 
509. 

41  MePherson  v.  United  States,  C. 
C.  A.,  245  Fed.  135. 

42Fraser  v.  Cole,  C.  C.  A.,  214 
Fed.  556;  Farmers'  Loan  &  Tr. 
Co.  V.  N.  Y.  Rys.  Co.,  C.  C.  A.,  215 
Fed.  712;  HufE  v.  Bidwell,  C.  C.  A., 
218   Fed.   6. 

43Girard  Tr.  Co.  v.  McKinley- 
Lanning  L.  &  Tr.  Co.,  135  Fed.  180. 

44Colley  v.  Wolcott,  C.  C.  A., 
187  Fed.  595. 

46Jbid.       Where     it     was     stipu- 


lated that,  in  consideration  of  the 
payment  of  a  large  sum  of  mouey  to 
the  receiver,  the  fees  and  expenses 
of  the  defendants'  counsel  should  be 
paid  out  of  the  fund  it  was  held 
that  the  fact  that  unsuccessful  ap- 
peals were  taken  by  the  defendants 
to  the  Circuit  Court  of  Appeals  and 
to  the  Supreme  Court  of  the  United 
States  did  not  deprive  the  court  of 
original  jurisdiction  of  jurisdiction 
to  make  allowances  out  of  the  funds 
in  accordance  with  the  stipulation. 
V.  S.  V.  Stone,  C.  C.  A.,  187  Fed. 
577. 

§  422.  1  Trustees  v.  Greenough, 
105  U.  S.  527,  26  L.  ed.  1157. 

2  Trustees    v.    Greenough,    105    U. 


2072  COSTS  [§422 

which  is  usually  proper.^    In  some  eases  more  than  one-third  *  in 


S.  527,  26  L.  ed.  1157;   Cowdrey  v. 
G.,  H.  &  H.   E.   Co.,  93  U.   S.   352, 
23  L.  ed.  950;  :Ex  parte  Jaffrey;  Be 
Waite   &   Crocker,   1   Low.   321;    Ex 
parte  Plitt,  2  Wall.  Jr.  453.     It  has 
been   said    that,    for    gathering    the 
facts    and    filing    a    bill    in    equity 
$400     is,     ordinarily     a     reasonable 
counsel  fee;  but  that,  under  special 
circumstances,  $500  may  be  allowed 
upon   the   substitution   of   an   attor- 
ney.    Morton  v.  La  Roche  (S.  D.  N. 
Y.),   116  Fed.   1022.      $500   was  al- 
lowed a  trustee  for  filing  an  answer 
and  aiding  the  machinery  of  a  fore- 
closure suit.     Farmers'  Loan  &  Tr. 
Co.  V.  N.  Y.  Eys.  Co.,  215  Fed.  712. 
$1,000   was   allowed    for   the   prepa- 
ration  and   service   of    a   bill   under 
which    receivers   of   a   Building   As- 
sociation were  appointed.     Miers  v. 
Columbia  Mut.  Building,  &c.,  Ass'n. 
(S.     D.     N.     Y.),     166     Fed.     781. 
$1,200,  for  instituting  an  action,  in 
which  receivers  were  appointed,  and 
conducting  the  proceedings  generally 
for    the    benefit    of    all    the    credi- 
tors, was  allowed  a  firm  of  lawyers, 
although  one  of  them   also  received 
.$4,000  for  services  to  the  receivers. 
Ely  v.  Van  Kannel  Revolving  Door 
Co.    (E.   D.   N.   Y.),   184  Fed.   459. 
$30,000  was  allowed   a  firm  of  law- 
yers   for    filing    original,    amended 
and    supplemental   bills,    and    bring- 
ing  a   large   amount   of   assets   into 
court    for    administration    and    con- 
servation, when  they  were  also  paid 
$35,000  for  services  to  the  receivers 
up  to  a  certain  time.     Guaranty  Tr. 
Co.   V.   Chicago   Rys.    Co.,   C.   C.   A.. 
Seventh  Ct.,  185  Fed.  411. 

3  Brown     v.     Pennsylvania     Canal 
Co.,  244  Fed.  980,  983. 

4  For    a   case    where    an    attorney 
was   allowed   $1,000   out   of   a   fund 


of  $2,500,  see  Smith  v.  Cooper,  120 
Fed.  230.     Where  counsel  were  paid 
$2,000     for     disbursements     and     it 
was  agreed  that  their  compensation 
should  be  liberal  in  case  of  success, 
it    was    held    that    one-third    of    the 
fund    collected,    $91,420,    should    be 
allowed    them.      Frink    v.    McComb, 
60   Fed.   486.     Where   $186,000  was 
recovered  in  a  suit  for  the  construc- 
tion of  a  will,  and  to  determine  the 
effect  of  certain  advancements,  the 
Circuit    Court    of    Appeals    allowed 
$57,094,  increasing  the  allowance  by 
the    master   of    about   31    per   cent., 
namely   $51,892.      Of   this   increased 
amount  $20,000  was  paid  the  coun- 
sel upon  whom  rested  the  burden  of 
the   litigation;    two   other   attorneys 
received     $14,797     each;      and     the 
fourth,  whose  services  were  confined 
to    two    arguments    in   the    Supreme 
Court    of    the    United    States,    only 
$7,500.     Gilden  v.  Cowan,  C.  C.  A., 
123  Fed-  48.     The  original  litigation 
is  reported  as  Adams  v.  Cowen,  174 
U.  S.  800,  43  L.  ed.  1188,  177  U.  S. 
471,  44  L.  ed.  851;  Cowen  v.  Adams, 
C.  C.   A.,   78  Fed.  536,  24  C.  C.  A. 
198.     In  a  case  involving  $208,000, 
the  court  allowed  $5,000  to  the  lead- 
ing counsel  in  the  Circuit  Court  of 
Appeals  and   $10,000   to  be  divided 
between  two  counsel  in  the  Supreme 
Court  of  the  United  States,  although 
the  appeals  were  successful.     U.   S. 
V.  Stone,  C.  C.  A.,  187  Fed.  577,  580. 
5  Twenty  per  cent,  of  $25,000  was 
held   to   be   a  reasonable  contingent 
fee  when  the  amount  was  not  speci- 
fied in  the  agreement  between  client 
and  attorney.     St.  Louis,  I.  M.  &  S. 
Ry.     Co.     V.     Clark,     51     Fed.     483. 
$1,000  was  allowed  for  the  fee  of  a 
counsel,    who    filed    a   bill    of   inter- 
pleader upon  a  life  insurance  policy 


§  422]  COSTS  AS  bf:tween  solicitor  ami  clikn'i- 


2073 


others  twenty  percent^  in  another  fifteen  percent^  in  another 
thirteen  percent.'''  Five  per  centum  of  the  fund  eolleeted  wa.s 
held  a  reasonable  counsel  fee  in  such  a  case,  when  the  fund  was 
more  than  seventy-five  thousand  dollars.'  Ten  per  centum  of  the 
fund  collected  was  lu'ld  a  reasonable  counsel  fee,  when  the  fund 
was  less.^ 

In  no  case,  however,  will  the  personal  expenses  and  compensa- 
lion  for  the  personal  services  of  a  imm'sou,  not  a  trustee,  who  has 


of     the     face     value     of     $50,000. 
Mutual   Life   Ins.   Co.   v.   Laue,   151 
Fed.   276.      $150,   when   the   amount 
was   $10,000.      McNamara   v.  Provi- 
dent Sav.  Life  Assur.  Soc,  0.  C.  A., 
114  Fed.  910,  912.     See  Mutual  Life 
Ins.   Co.   V.   Farmers'   &  Mechanics' 
Nat.     Bank,     173     Fed.     390,     402. 
Where  a  party  sued  by  a  trustee  in 
bankruptcy  for  $500  paid  the  money 
into  court  upon  the  making  of  the 
bankrupt's    wife    an    additional    de- 
fendant, it  was  allowed   $25   as  an 
attorney's     fee.       Caten     v.     Eagle 
Building   &   Loan    Ass'n,    177    Fed. 
996.     Where  an  attorney  had  asked 
for   a   payment   on   account,   it   was 
held  that  he  had  not  thereby  waived 
his  contract  right  to  a  liberal  con- 
tingent fee.     Frink  v.   McConib,   60 
Fed.   486.     As   to   the   extent  of  an 
attorney 's    lien,    see    Mass.    &    So. 
Const.    Co.    v.    Tp.    of   Gill's    Creek, 
48    Fed.    145;     Claflin    v.    Bannett, 
51  Fed.  693;   Coe  v.  Western  R.  Co., 
65   Fed.  16.     A   State  statute   regu- 
lating   the    allowances    in    a    parti- 
tion suit  was  followed  by  a  Federal 
Court   of   Etiuity.      Willard    v.    Ser- 
pell,    62    Fed.    625.      Where   tlie   re- 
covery was   $609,400.80   the   sum   of 
$104,299    was    allowed    for    counsel 
fees  in  a  suit  by   a  minority  stock- 
holder.     Of   this   $45,600    was   given 
to    the    counsel    who    first    protested 
against  the   action   of   the   majority 
and  brought  a  prior  suit  in  a  State 


court.      Thompson    v.   Bomar,   C.    C. 
A.,  258  Fed.  339. 

6  Re  J.  M.  Fiske  &  Co.,  209  Fed. 
982,  where  one  of  the  suits  involved 
went  through  the  New  York  State 
courts  to  the  Court  of  Appeals  and 
about  $27,000  recovered,  the  allow- 
ance was  $5,000.  In  another,  where 
a  settlement  was  made  by  which  the 
estate  received  in  cash  $11,000,  and 
a  release  of  a  claim  of  about  $7,000 
upon  a  fund  in  the  hands  of  the 
trustees;  $3,000,  was  allowed  for 
counsel  fees.  For  the  collec- 
tion of  $270,000  after  a  trial  l)y  a 
referee  and  upon  review  in  the  Dis- 
trict Court,  the  Circuit  Court  of 
Ajjpeals  and  the  Supreme  Court  of 
the   United  States;   $40,000.     Ihi.l. 

7  Brown  v.  Pennsylvania  Canal 
Co.,  244  Fed.  980,  983,  where  the 
fund  was  more  than  $1,500,000  and 
the  allowance  $200,000  the  court  ex- 
cluding from  the  basis  of  the  per- 
centage the  interest  of  the  defend- 
ant in  the  fund  recovered. 

8  Fechheimer  v.  Baum,  43  Fed. 
719;  Central  R.  &  B.  Co.  v.  Pettus, 
113  U.  S.  116,  128,  28  L.  ed.  915. 
919. 

9  Where  the  amount  collected  was 
$35,869.77,  the  plaintiff's  counsel 
was  allowed  ten  per  cent,  thereof. 
Harrison  v.  Perea,  168  U.  S.  311, 
317,  42  L.  ed.  478,  480.  See  also 
Adams  v.  Kepler  M.  Co.,  38  Fed. 
281. 


2074 


COSTS 


[§422a 


engaged  in  litigation  in  behalf  of  himself  and  others,  be  included 
in  them.^® 

§422a.  Attorneys'  liens.  Under  section  3477  of  the  Revised 
Statutes,  a  contract  giving  an  attorney  a  lien  upon  a  claim 
against  the  United  States  which  he  is  retained  to  collect  cannot 
be  enforced ;  ^  but  an  agreement  giving  him  a  contingent  fee  in 
such  a  case  is  valid  ^  a  contingent  fee  of  one-third  was  allowed 
in  accordance  with  the  contract.^ 

It  seems  that  the  law  of  the  State  where  the  attorney  was  re- 
tained and  conducted  the  litigation  regulates  his  rights  in  this 
respect.*  It  has  been  held  by  a  State  court,  that  an  attorney's 
lien  upon  a  cause  of  action  can  be  enforced,  after  the  removal 
of  the  suit  to  a  Federal  Court  and  its  discontinuance  thereupon 
a  settlement  with  the  client.^  At  least  in  States  where  the  stat- 
utes give  attorneys  a  lien  upon  their  client 's  causes  of  action  ^  or 
property  obtained  by  litigation,'  the  Federal  courts  will  enforce 
the  lien,  which  cannot  be  defeated  by  a  settlement  made  by  the 
client.*  It  has  been  held  that  this  lien  can  be  enforced  against  a 
fund  paid  voluntarily  to  the  corporation  by  defendants  to  a 
stockholder's  suit  to  recover  it.® 

The  lien  has  been  denied  to  counsel  who  is  not  attorney  of 
record  although  on  account  of  the  attorney's  illness  he  per- 
formed most  of  the  work  which  would  ordinarily  have  been  done 
bv  the  latter.^®    Where  the  attornev  after  notice  of  a  claim  of 


10  Trustees  v.  Greenough,  105  U. 
S.  527,  26  L.  ed.  1157.  See  U.  S. 
V.  Stone,  C.  C.  A.,  187  Fed.  577. 

§422a.  INutt  v.  Knut,  200  U. 
S.  12,  21,  26  Sup.  Ct.  216,  50  L.  ed. 
348. 

2  Ibid. 

8  Ibid. 

4i?e  Paschal,  10  WaU.  438,  495, 
19  L.  ed.  992;  The  Johnson  Lighter- 
age Co.,  240  Fed.  435,  446. 

6  Oishei  v.  Pennsylvania  E.  E. 
Co.,  117  App.  Div.   (N.  Y.)   110. 

eSe  Baxter  &  Co.,  C.  C.  A.,  154 
Fed.  22;  Bray  v.  Staples,  C.  C.  A., 
180  Fed.  321. 

7Colley  V.  Wolcott,  C.  C.  A.,  187 
Fed.  595,  where  no  reference  to  such 


a  statute  was  made.  Everett 
Clarke  &  Benedict  v.  Alpha  Port- 
land Cement  Co.,  C.  C.  A.,  225 
Fed.  931  seems  to  hold  that  in 
equity  an  attorney  has  a  lien  upon 
a  judgment  recovered  by  him  for  his 
client. 

8J?e  Baxter  &  Co.,  C.  C.  A.,  154 
Fed.  22. 

9  Meighan  v.  Am.  Grass  Twine 
Co.,  C.  C.  A.,  154  Fed.  346.  Contra, 
Be  Meighan,  106  App.  Div.  (N.  Y.) 
599.  See  Harv.  Law  Eev,,  XIV, 
211. 

10  Goodwin  Film  &  Camera  Co,  v. 
Eastman  Kodak  Co.,  C.  C.  A.,  222 
Fed.  249,  affirming  216  Fed.  831. 
Where   an   attorney   agrees    to   give 


§422a: 


ATTORNEY  S  LIENS 


2075 


set-oft'  took  as  payment  for  his  fees  the  .judjrinenl  upon  whieh  he 
had  a  lien,  it  was  held  that  he  thereby  merged  his  lien  in  the 
judgment  so  that  his  rights  were  subject  to  the  set-off. ^^ 

An  agreement  between  a  (juardian  ad  litem  and  an  attornej-  as 
to  the  amount  of  the  latter 's  fees  is  not  binding  unless  ratified  by 
the  court. ^2  ],,  the  Second  Circuit  it  was  held  that  fifty  per  cent, 
of  the  amount  collected  upon  a  settlement  made  after  the  case  had 
been  prepared  and  called  for  trial  was  not  excessive  where  the  fee 
was  contingent  upon  success,  although  the  plaintiff  was  an 
infant.^'  That  a  contract  for  a  contingent  fee  of  fifty  per  cent, 
in  an  action  for  damages  for  negligence  is  not  unreasonable  is 
settled  in  the  State  of  New  York.i*  In  a  similar  case  the  Circuit 
Court  of  Appeals  held  that  the  question  whether  such  a  contract 
was  fair  and  not  unconscionable  should  be  submitted  to  the 
jury.^^ 

It  has  been  held  that  an  assignment  of  a  claim  for  treble 
damages  under  the  Anti-Trust  Act  to  an  attorney  in  settlement 
of  his  charges  for  legal  services,  the  value  of  which  he  had 
estimated  at  one  fifteenth  of  the  amount  of  the  claim,i^  and  that 
an  agreement  by  an  attorney  to  pay  the  expenses  of  litigation 
upon  a  contingent  fee  ^"^  are  champertous  and  cannot  be  enforced. 

It  has  been  held  that,  in  the  Second  Circuit  where  attorneys 
have  been  employed  by  a  plaintiff  under  a  contingent  fee,  it  is 
held  that  the  court  has  discretionary  power,  upon  their  dis- 
agreement with  their  client,  to  grant  an  order  of  substitution, 
conditional  on  the  plaintiff's  paying  a  reasonable  compensation 
for  their  services,  already  rendered,  and  their  disbursements." 


counsel  a  specified  part  of  a  con- 
tingent fee,  the  latter  thereby  ac- 
quires a  lien  on  the  sum  which  the 
former  receives  in  payment  for  the 
services.  Barnes  v.  Alexander,  232 
U.  S.  117,  .S4  Sup.  Ct.  276,  58  L.  ed. 
530. 

11  Northwestern  Port  Huron  Co.  v. 
Babcock,  223  Fed.  484. 

12  Ryan  v.  Phila.  &  Reading  Coal 
&  Iron  Co.  (E.  D.  N.  Y.),  189  Fed. 
253. 

13  Ryan  v.  Phila.  &  Reading  Coal 
&  Iron  Co.  (E.  D.  N.  Y.),  189  Fed. 
253.      Contra,    Herman    v.    Met.    St. 


Ry.  Co.,  S.  D.  N.  Y.,  121  Fed.  184. 

14  Fischer-Hansen  v.  Brooklyn 
Heights  R.  R.  Co.,  173  N.  Y.  492. 

ISMuller  v.  Kelly,  C.  C.  A.,  125 
Fed.  212. 

16  General  Film  Co.  v.  Sampliner, 
C.  C.  A.,  6th  Ct.  232  Fed.  95; 
Sampliner  v.  Motion  Picture  Pat- 
ents Co.  (S.  D.  N.  Y.),  243  Fed. 
277.  See  General  Film  Co.,  v. 
Sampliner,  C.  C.  A.,  6th  Ct.,  252 
Fed.  443. 

17  Jones  v.  Pettingill,  C.  C.  A..  1st 
Ct..  245  Fed.   269. 

18  Ronald  v.  Mutual  Reserve  Fund 


2076 


COSTS 


[§423 


111  the  Third  Circuit,  that  in  such  a  case,  an  assignment  is  equiva- 
lent to  a  discharge  by  the  client  and  cancels  the  contract  for  a 
contingent  fee.^^  In  such  cases  the  compensation  fixed  by  the 
contract  is  evidence  which  may  be  considered  in  estimating  the 
value  of  the  services.^"  Tlie  attorney's  retaining  lien  upon  pa- 
l)ers  in  his  possession  is  recognized  by  the  Federal  courts.^^ 

§423.  Taxation  of  costs.  Costs  as  betAveen  party  and  parly 
are  taxed  by  a  judge  or  clerk  of  the  court,  and  arc  included  in 
and  form  a  ])ortion  of  the  judgment  or  decree.^ 

Uuless  they  are  awarded  in  interlocutory  proceedings  costs 
should  not  be  taxed  before  final  judgment.^  It  is  not  improper 
when  the  judgment  or  decree  is  entered  to  leave  a  blank  for  the 
amount  of  costs  and  the  clerk  to  insert  them  with  the  consent 
of  the  court  after  they  are  subsequently.^  This  is  the  more 
convenient  practice,  when  the  decree  is  signed  by  the  judge  *  and 
has  been  permitted  after  an  affirmance  on  appeal.^  It  is  the 
better  practice  to  serve,  upon  the  adverse  party,  notice  of  the 
taxation  with  a  copy  of  the  proposed  bill  of  costs,^  but  costs  are 
often  taxed  ex  parte. 

To  each  bill  of  costs  should  be  attached  an  affidavit  by  some 
person  acquainted  with  the  facts,  stating  that  the  services  for 
which  fees  are  charged  were  performed.'''  Receipts  may  be  sub- 
stituted for  affidavits,  even,  it  has  been  held,  as  regards  pay- 
ments for  the  fees  of  witnesses.*    It  has  been  held  that  the  court 


Life  Ass'n,  30  Fed.  228;  Silverman 
V.  Penn.  R.  R.  Co.,  141  Fed.  382; 
Du  Bois  V.  City  of  New  York,  C. 
C.  A.,  134  Fed.  570;  Ibert  v.  ^tna 
Life  Ins.  Co.,  213  Fed.  996. 

19  The     Johnson     Lighterage     Co. 
(D.  N.  J.),  240  Fed.  435,  446. 

20  The     Johnson     Lighterage     Co. 
(D.  N.  J.),  240  Fed.  435,  447. 

21  Everett  Clarke  &  Co.  v.   Alpha 
Cement  Co.,  C.  C.  A.,  225  Fed.  931. 

§  423.     1  U.  S.  R.  S.,  §  983. 
2  Mills  v.    Lehigh   Valley   R.    Co., 
226  Fed.  813. 

8  Sizer   v.   Many,   16   How.,   14   L. 

ed.  861. 
4  Ibid. 
6  Ibid. 


6  For  the  construction  of  the  rule 
of  the  Ninth  Circuit  upon  this 
point,  see  Spoor  v.  Riverside  Coun- 
ty, 113  Fed.  26. 

7U.  S.  R.  S.,  §984;  Jerman  v, 
Stewart,  12  Fed.  271.  Fees  of  wit- 
nesses were  disallowed  where  the 
affidavit  or  certificate  stated  the 
"place  from  which  each  came  to  at- 
tend trial,"  instead  of  the  place  of 
their  respective  residences,  The  Gov. 
Ames,  C.  C.  A.,  187  Fed.  40,  49; 
and  where  the  only  affidavit  as  to 
residence  was  based  entirely  upon 
information,  Ibid. 

8  Primrose  v.  Fenno,  113  Fed. 
375.' 


§42a; 


TAXATION'    OF   COSTS 


20 


I  I 


will  not  on  tlie  taxation  enforce  a  stipulation  that  disbursements 
not  allowed  by  rule  or  statute  maj'  be  ineluded  in  the  bill  of 
ccsts.^  The  bills  when  taxed  must  be  filed  with  the  papers  in 
the  cause. ^'^ 

When  the  taxation  is  In  the  clerk,  a  motion  for  a  retaxation 
of  the  costs  may  he  made  before,  oi-  an  aj)peal  taken  to.  a  judge 
of  the  court. ^^  A  |)aity  who  ol^jects  to  a  chai'gc  in  hiiiip  should 
dcnuuul  a  six'citication  of  the  items  of  which  it  is  composed. ^^ 
Where  there  is  a  dispute  as  to  a  (piestion  of  fad.  material  to 
llie  taxation  of  a  bill  of  costs,  a  reference  1o  an  auditor  may  lie 
made.^^ 

('osts  as  between  solicitor  and  client  are  taxed  li\-  the  court, 
usually  by  means  of  a  reference  to  a  master.^* 

Costs  taxed  in  the  Circuit  Court  of  Appeals  without  objection 
cannot  be  objected  to  for  first  time  in  the  District  Court  after 
a  remand. ^^  Where  the  Supreme  Court  affirnu^d  a  decree  wnth 
costs  of  the  court  below  as  well  as  of  the  Supreme  Court,  it  was 
held  that  the  latter  court  had  no  power  to  grant  costs  as  be- 
tween solicitor  and  client  out  of  the  fund.^^ 

It  was  held  that  unpaid  fees  of  officers  need  not  be  formally 
taxed  as  costs;  but  tlrat  if  they  are  of  record  or  entered  on  the 
proper  writ,  that  will  be  snfficient  to  support  an  execution  there- 
upon,^'  and  tliat  an  error  in  such  taxation  may  be  corrected  by 
the  clerk  subsecpient  to  a  settlement  between  the  parties,  after  a 
reversal  of  the  judgment. ^^ 


8  Lee  v.  Simpson,  42  Fed.  434. 

10  U.  S.  R.  S.,   §983. 

11  Be  Strauss  v.  Meyer,  22  Fed. 
467;  Tuck  v.  Olds,  28  Fed.  883. 
Whore  a  court  rule  provided  that  an 
appeal  from  the  taxation  by  the 
clerk  must  be  taken  within  ten  days 
thereafter,  an  appeal  taken  after 
the  specified  time  was  dismissed, 
although  the  successful  party  had 
noticed  it.  Snyder  v.  McCarthy,  C. 
O.  A.,  197  Fed.  166. 

12Dedekam  v.  Vose,  3  Blatehf. 
153. 

13  Bottomley  v.  IT.  S.,  1  Story, 
153. 


14  Trustees  v.  Greenough,  105  V. 
S.  527,  26  L.  ed.  1157;  Central  R. 
&  B.  Co.  V.  Pettus,  113  U.  S.  116, 
28  L.  ed.  915;  Cowdrey  v.  G.,  H.  & 
H.  R.  Co.,  93  U.  S.  352,  23  L.  ed. 
950. 

IB  Fidelity  &  Deposit  Co.  v.  Ex- 
panded Metal  Co.,  183  Fed.  568. 

16  Mason  v.  Pewabic  Mining  Co., 
153  U.  S.  361,  366,  38  L.  ed.  745. 

nWoolfolk  V.  Jones,  216  Fed. 
807.     See  supra,  §298. 

18  Hoystradt  v.  Delaware,  L.  & 
W.  R.  R.,  182  Fed.  880. 


2078 


COSTS 


[§424 


§  424.  Appeal  from  taxation  of  costs.  Ordinarily,  no  appeal 
will  lie  to  a  court  of  review  from  a  decree  in  equity,^  or  ad- 
miralty,^ when  the  sole  ground  of  error  is  the  allowance  of  costs 
between  party  and  party.  But  when  the  decree  is  otherwise  er- 
roneous it  may  be  modified  as  to  the  costs.^ 

This  question  may  be  reviewed  when  it  is  denied  that  the  court 
had  power  to  award  the  costs  *  or  when  the  right  to  costs  depends 
on  the  construction  or  application  of  a  statute  ^  or  of  a  mandate 
of  the  appellate  court.^  A  decree  permitting  a  complainant  to 
dismiss  on  paying  the  costs  of  the  defendant  is  appealable.'  A 
court  of  review  may  reverse  a  decree  for  an  error  in  taxing  costs 
as  between  party  and  party,*  and  in  allowing  an  attorney's  fee,® 
and  for  an  erro-r  in  taxing  costs  directed  to  be  paid  to  the  clerk, ^^ 
and  also  for  an  erroneous  construction  of  its  own  decree  concern- 
ing a  division  of  the  costs.^^  An  appeal  lies  from  a  decree  award- 
ing costs  as  between  solicitor  and  client. ^^  Upon  such  an  appeal, 


§  424.  1  Canter  v.  Insurance  Co., 
3  Pet.  307,  317,  7  L.  ed.  688;  Elas- 
tic Fabric  Co.  v.  Smith,  100  U.  S. 
110,  25  L.  ed.  547;  Stuart  v.  Boul- 
ware.  133  U.  S.  78,  33  L.  ed.  568; 
Du  Bois  V.  Kirk,  158  U.  S.  58,  15 
Sup.  Ct.  729,  39  L.  ed.  895;  Hard- 
ing V.  Corn  Products  Mfg.  Co.,  C. 
C.  A.,  198  Fed.  628;  Superior  Hay 
Stacker  Mfg.  Co.  v.  Dain  Mfg.  Co., 
C.  C.  A.,  208  Fed.  549. 

2  The  Eva  D.  Rose,  C.  C.  A.,  166 
Fed.  101.  But  see  Eoberts  v.  N.  T. 
El.  R.  Co.,  155  N.  Y.  31. 

3  Chapin-Sacks  Mfg.  Co.  v.  Hen- 
dler  Creamery  Co.,  C.  C.  A.,  2.54 
Fed.  553. 

4  Meeker  &  Co.  v.  Lehigh  Valley 
R.  R.,  236  U.  S.  412 ;  Michigan  Cen- 
tral R.  Co.,  C.  C.  A.,  124  Fed.  727, 
733;  Scateherd  v.  Love,  C.  C.  A., 
166  Fed.  53;  Stallo  v.  Wagner,  C. 
C.  A.,  245  Fed.  636. 

5  Ibid. 

6  Blanks  v.  Klein,  C.  C.  A..  78 
Fed.  395;  Kell  v.  Trenchard,  C.  C. 
A.,  146  Fed.  245.     See  stipra,  §  361. 

7  Pomona  Fruit  Growers'  Exeh.  v. 


Stebler,  C.  C.  A.,  241  Fed.  123.    See 
supra,  §  361. 

8  The  City  of  Augusta,  C.  C.  A., 
80  Fed.  297,  307,  citing  O'Reilly  v. 
Morse,  15  How.  62,  124,  14  L.  ed. 
601,  628; 'Burns  v.  Rosenstein,  135 
U.  S.  449,  456,  34  L.  ed.  193,  196. 
But  see  DuBois  v.  Kirk,  158  U.  S. 
58,  67,  39  L.  ed.  895,  899;  Game- 
well  F.  A.  Tel.  Co.  V.  Municipal 
Signal  Co.,  C.  C.  A.,  77  Fed,  490; 
Blanks  v.  Klein,  C.  C.  A.,  78  Fed. 
395,  and  cases  there  cited. 

9  Meeker  &  Co.  v.  Lehigh  Valley 
R.  R,  236  U.  S.  412;  Citizens' 
Bank  v.  Cannon,  164  U.  S.  319, 
41  L.  ed.  451. 

10  Be  Michigan  Cent.  R.  Co.,  C.  C. 
A.,  124  Fed.  727. 

n  Kell  V.  Trenchard,  C.  C.  A.,  146 
Fed.  245. 

12  Trustees  v.  Greenough,  105  IT. 
S.  527,  26  L.  ed.  1157.  Where  the 
appeal  was  from  an  order  as  to 
costs  entered  at  the  foot  of  a  final 
decree,  but  the  transcript  did  not 
contain  the  decree,  nor  anything  to 
show    whether    evidence    was    taken 


§  425] 


SECUKITV    F()l{   COSTS 


2079 


the  court  may  reverse  tlie  decree  ii  the  costs  have  been  awarded 
u])oii  erroneous  principles;  ^^  or  because  the  amount  allowed  is  too 
large,^*  or  too  small, ^^  althoujrh  it  rarely  interferes  with  the  dis- 
cretion of  the  court  below  in  these  respects.^^ 

A  party  who  wishes  to  have  the  propriety  of  the  disbursements 
reviewed  must  raise  the  question  l)efore  the  clerk  or  the  District 
Judge  and  also  in  an  assignment  of  error  and  l)i'ing  up  the 
papers  used  upon  the  taxation.^''^  The  court  of  review  will  not 
decide  what  items  should  be  allowed  before  they  have  been  taxed 
below.  ^^ 

§  425.  Security  for  costs,  A  complainant  who  does  not  reside 
within  the  district  may  be  compelled  to  give  security  for  costs.^ 
The  matter  is  usually  regulated  by  a  rule  of  the  court ;  but,  in 
the  absence  of  a  such  a  rule,  a  court  of  equity  has  inherent  power 


upon  the  application  for  the  order; 
it  was  held  that  there  could  be  no 
reversal  unless  error  was  manifest 
in  the  terms  or  subject-matter 
thereof,  and  that  in  the  absence  of 
proof  to  the  contrary  it  would  be 
presumed  that  the  parties  affected 
were  before  the  court,  there  having 
been  an  apportionment  between 
them.  Corn  Products  Eefining  Co. 
V.  Chicago  Eeal  Estate  Loan  &  Tr. 
Co.,  C.  C.  A.,  185  Fed.  63. 

13  Trustees  v.  Greenough,  10.5  V. 
S.  527,  26  L.  ed.  1157;  Central  E. 
&  B.  Co.  v.  Pettus,  113  U.  S.  116, 
28  L.  ed.  915.  Where  a  corporation 
was  so  insolvent  that  it  had  no  in- 
terest in  the  fund  collected  by  the 
disposition  of  its  assets,  it  was  held 
that  it  could  not  be  heard  upon  such 
an  appeal.  Haight  &  Freese  Co.  v. 
Weiss,  C.  C.  A.,  165  Fed.  430. 

14  Central  K.  &  B.  Co.  v.  iVttus. 
113  U.  S.  116,  28  L.  ed.  915;  Har- 
rison V.  Perea,  168  U.  S.  311,  317, 
42  L.  ed.  478,  480. 

15  Glidden  v.  Cowen,  C.  C.  A  ,  12:! 
Fed.  48. 

16  Trustees   v.   Greenough,   105   U. 


S.  527,  26  L.  ed.  1157;  Stuart  v. 
Boulware,  133  U.  S.  78,  33  L.  ed. 
568;  Sloan  v.  Mitchell,  C.  C.  A.,  72 
Fed.  89.  But  see  Central  E.  &  B. 
Co.  V.  Pettus,  113  U.  S.  116,  28  L. 
ed.  915;  Weiss  v.  Haight  &  Freese 
Co.,  C.  C.  A.,  165  Fed.  432.  But 
see  Bowker  v.  Haight  &  Freese  Co., 
C.  C.  A.,  165  Fed.  430. 

17  Williamson  v.  Electric  Service 
Suiiplies  Co.,  C.  C.  A.,  242  Fed.  87:i 

18  Meeker  &  Co.  v.  Lehigh  Valley 
R.  R.,  2:56  U.  H.  412:  Central  Im- 
provement Co.  v.  Cambria  Steel  Co., 
C.  C.  A.,  210  Fed.  696,  706,  723, 
aff'd  240  U.  S.   166. 

§  425.  1  Lyman  V.  &  E.  Co.  v. 
Southard,  12  Blatchf.  405.  But  see 
Woodworth  v.  Sherman,  3  Story, 
171.  The  Minnesota  rule  requiring 
the  plaintiff  in  every  case  to  give 
security  for  costs  means  only  the 
clerk's  costs.  Robinson  v.  Hon- 
stain,  79  Fed.  678.  The  Pennsyl- 
vania rule  provides  for  the  filing  of 
security  when  the  plaintiff  removes 
from  the  district  after  the  suit  is 
brought.  Osborne  v.  Pennsylvania 
R.  Co.,  159  Fed.  301. 


2080 


COSTS 


[§425 


to  direct,  such  security  to  be  filed.^  In  actions  at  common  law, 
the  State  statute  is  usually  followed,^  except  in  where  an  Act  of 
Congress  directs  that  no  securit}^  need  be  filed. ^^  Such  security 
may  also  be  required  of  a  non-resident  defendant  to  a  bill  of  in- 
terpleader when  he  takes  aggressive  action.* 

In  order  to  obtain  an  order  compelling  such  securit}',  the  de- 
fendant must  move  as  soon  as  he  ascertains  the  plaintiff's  resi- 
dence.^ In  the  absence  of  a  court  I'ule  upon  the  subject,  if  he 
takes  after  such  discovery  any  step  in  the  cause  before  moving, 
it  seems  that  he  thereby  waives  his  right  to  security,^  unless 
a  necessity  for  unforseen  disbursements  such  as  the  expense  of 
a  reference,  subsequently  arises.' 

Upon  a  failure  to  file  security  when  required,  the  plaintiff's 
pi'oceedings  will  be  stayed.'  A  plaintiff's  proceedings  may  also 
be  stayed  until  he  pays  the  costs  of  another  suit  between  the  same 
parties  upon  the  same  cause  of  action  in  which  he  was  unsuc- 
cessful, even  if  that  other  suit  was  in  a  State  court,®  or  a  Federal 
court  in  another  district, ^^  and,  it  has  been  held,  when  the  other 
suit  was  in  forma  pauper  is. ^'^  When  one  of  several  plaintiffs  is 
a  resident  of  the  district,  by  the  old  chancery  practice,  no  secur- 
ity for  costs  was  required. ^^    If  the  defendant  does  not  demand 


2Karns  v.  W.  L.  Imlay  Kapid 
Cyanide  Process  Co.,  181  Fed.  751, 

SWinkley  Co.  v.  Bowen  Mfg.  Co., 
180  Fed.  624;  Handy  Varnish  Co. 
V.  Midland  Linseed  OU  Co.,  191 
Fed.  256.  Contra,  Stewart  v.  The 
Sun,  36  Fed.  307;  O'Brien  v.  Hearn, 
125  Fed.  95. 

3a  Silvas  v.  Arizona  Copper  Co., 
2i:^   Fed.   504. 

4  Gross  &  Phillips  Mfg.  Co.  v. 
Gerhard,  8  Eep.  136. 

SMigliorueci  v.  Migliorncci,  1 
Dick.  147;  Foster  v.  Swasey,  2  W. 
&  M.  217;  Bliss  v.  Brooklyn,  10 
Blatehf.  217;  Prince  v.  Towns,  33 
Fed.  161. 

6  Migliorucci  v.  Migliorucci,  1 
Dick.  147;  Foster  v.  Swasey,  2  W. 
&  M.  217;  Bliss  v.  Brooklyn,  10 
Blatehf.  217;   Prince  v.  Towns,  33 


Fed.  161;  Karns  v.  W.  L.  Imlay 
Rapid  Cyanide  Process  Co.,  181  Fed. 
7.51.  Contra,  O'Brien  v.  Hearn,  125 
Fed.  95,  where  a  court  rule  existed. 
But  see  Stewart  v.  The  Sun,  36  Fed. 
307. 

7Uhle  V.  Burnham,  46  Fed.  500. 

8  Fox  V.  Blew,  5  Madd.  147. 

9  Buckles  v.  C,  M.  &  St.  P.  E. 
Co.,  47  Fed.  424. 

10  Kimble  v.  Western  Union  Tel. 
Co.,  70  Fed.  888. 

11  Ibid. 

12  Winthrop  v.  Royal  Exch.  Ass. 
Co.,  1  Dickens,  282;  Walker  v. 
Easterby,  6  Ves.  612;  Gilbert  v. 
Gilbert,  2  Paige  Ch.  (N.  Y.)  603. 
But,  under  rule  35  of  the  Circuit 
Court,  for  the  Southern  District  of 
New  York,  a  non-resident  plaintiff, 
although    joined    with    a    resident, 


425] 


SECURITY    KOK   COSTS 


2081 


secui'ity  for  i-osts  within  a  reasonable  tiau',  that  siu-h  security 
has  not  been  given  will  not,  when  the  cause  is  called  for  trial, 
be  a  ground  for  a  continuance.^' 

Where  a  plaintiff  has  recovered  judgnient  against  a  solvent 
defendant,  and  process  is  outstanding  in  the  nature  of  an  execu- 
tion to  collect  the  same,  it  is  not  proper  to  require  the  plaintiff  to 
make  a  deposit  to  secure  costs  due  a  commissioner.^*  A  party 
who  has  filed  a  claim  before  a  master  or  commissioner  may  be 
recjuired  to  give  the  security  for  the  costs  for  the  determina- 
tion thereof  including  the  fees  of  the  officer  and  the  stenographer 
if  it  appears  that  liis  claim  is  doubtful  and  that  his  proceedings 
are  dilatory  or  of  needless  length. ^^  it  was  held  in  New  York, 
by  Chancellor  Kent,  that  a  person  who  sued  in  another's  right,  as 
an  executor  or  administrator,  could  not  be  compelled  to  give 
security  for  costs;  ^^  but  a  receiver  in  bankruptcy,^'''  and  the  re- 
ceiver of  a  national  bank  appointed  by  the  Comptroller  who  had 
not  filed  a  certificate  showing  that  the  proceedings  were  taken 
by  direction  of  the  Treasury  Department,  when  suing  in  another 
district,  have  been  compelled  to  file  security  for  costs.^^  The 
United  States  and  parties  suing  or  defending  under  the  direction 
of  any  Department  of  the  Government  are  by  statute  exempted 
from  liability  to  give  security  for  costs,  at  least  upon  appeals 
and  writs  of  error.^^  By  an  executive  order  issued  by  the 
President  August  14,  1914  concerning  practice  in  the  District 
Court  of  the  Canal  zone  "The  plaintiff  in  any  civil  suit,  or  special 


must  tile  security  for  costs.  El. 
Vehicle  Co.  v.  Gallagher,  145  Fed. 
394. 

13  Hawkins  v.  Willbank,  4  "Wash. 
285. 

14  U.  S.  V.  St.  Charles  Co.,  31  Fed. 
442. 

16  India  Line  v.  Palmetto  Phos- 
phate Co.,  C.  C.  A..  2:!6  Fed.  94.  'Mi. 

16  Goodrich  v.  Pendleton,  3  J.  Oh. 
(N.  Y.)  520.  See  Cathcart  v.  Hew- 
son,  1  Hayes,  173. 

17  Osborne  v.  Pennsylvania  R.  Co. 
(E.  D.  Pa,),  159  Fed.  301.  But  see 
The  Alert,  199  Fed.  542.  Cf.  SS  6;{4, 
64:'.,   infra. 

!•  Piatt  V.  Adriance,  90  Fed.  772, 


Contra,  Piatt  v.  Beach,  2  Benedict, 
303,  Fed.  Cas.  No.  11,215;   Stanton 

V.  Wilkeson,  8  Benedict,  ;!57,  Fed. 
Cas.  No.  13,299;  Pepper  v.  Fidelity 
&  Casualty  Co.,  125  Fed.  822.  It 
has  been  held  that  a  non-resident 
receiver  of  a  national  bank  must 
file  sec'.n-ity  for  costs,  in  an  action 
rit  common  law,  when  the  State 
|.iactice  so  requires,  unless  he  filed 
:i  certificate  brinyiny;  himself  within 
tlic  provisions  of  U.  S.  R.  S.,  S  1001. 
19  r.  S.  K.  S.,  nOOl.  Tlie  costs 
■  ne  ])aid  out  of  the  contingent  fund 
of  the  Department  wliieh  author- 
ized tlie  suit,  dofoiise  or  ai'peal. 


'JC82 


COSTS 


§  42.') 


proceedings,  may  be  ruled  to  give  security  for  the  costs  upou 
motion  of  the  defendant,  or  of  any  officer  of  the  court  interested 
in  the  costs  accruing  in  such  suit ;  and  if  such  rule  be  entered 
against  plaintiff,  and  he  fail  to  comply  therewith,  within  the  time 
prescribed  by  the  court  or  judge  thereof,  the  suit  shall  be  dis-^ 
missed. 2^  This  leaves  the  requirement  of  security  in  the  discre- 
tion of  the  court.2^ 

Security  for  costs  in  admiralty  is  usually  required  from  both 
parties  to  a  proceeding  as  subsequently  described.^^  "Courts  of 
the  I/nited  States,  including  appellate  courts,  hereafter  shall  be 
open  to  seamen,  without  furnishing  bonds  or  prepayment  of  or 
making  deposit  to  secure  fees  or  costs,  for  the  purpose  of  enter- 
ing and  prosecuting  suit  or  suits  in  their  own  name  and  for  their 
own  benefit  for  wages  or  salvage  and  to  enforce  laws  made  for 
their  health  and  safety."  ^3  Such  costs  if  not  paid  are  included 
in  the  decree  in  favor  of  the  seamen  and  become  a  lien  on  the 
recovery  which  may  be  enforced  by  the  persons  entitled  to  them.^* 
The  statute  does  not  apply  to  proceedings  upon  appeal  or  error.^s 

Persons  allowed  to  sue  in  forma  pauperis  are  not  obliged  to  file 
security  for  costs  in  the  court  of  original  jurisdiction ;  ^6  but 
they  must  do  so  upon  an  appeal  or  writ  of  error.^'  Where  in  a 
suit  in  admiralty,  brought  in  forma  pauperis  after  a  decree  dis- 
missing the  libel,  an  appeal  was  taken  with  a  stipulation  signed 
by  a  surety,  conditioned  that  appellant  "should  answer  all 
damages  and  costs,"  if  he  fail  to  make  his  plea  good,  upon  an 
affirmance  "with  costs;"  it  was  held  that  the  respondent  might 
recover  against  the  libellant  and  the  surety,  his  costs  in  both 
the  Circuit   Court   of  Appeals  and  the  District  Court.^s     The 


20  Panama  E.  Co.  v.  Curran,  C. 
C.  A.,  256  Fed.  768. 

21  Ibid. 

22  Supra.  §§562,  570,  571. 

23  H9  St.  at  L.  :',V.^,  §40  Stat.  !>. 
157.  siipra,  §  414,  Comp.  St..  8  1630a. 

24  The   Memphian,   245    Fed.   484. 
26  Ex  parte  Abdu,  247  U.  S.   27; 

The    Nigretia,    C.    C.    A.,    249    Fed. 
348. 

26  St.  at  L.,  252;  Boyle  v.  Great 
N.  Ry.  Co.,  63  Fed.  5:i9 ;  supra. 
§  413.     It  has  been  held  that,  upon 


a  motion  to  compel  security,  the 
plaintiff  may  cure  an  omission  In 
his  original  petition  for  leave  to 
sue  as  a  pauper.  Donovan  v.  Salem 
&  P.  Nav.  Co.,  134  Fed.  316. 

27Gallaway  v.  Fort  Worth  Bank, 
186  IT.  S.  177,  46  L.  ed.  1111;  Brad- 
ford V.  Southern  Ey.  Co.,  195  U.  S. 
243,  251,  49  L.  ed.  178,  181  ;  .-iuprfi. 
§  413. 

28  The  Joseph  B.  Thomas.  158 
Fed.  559. 


§425]  SECURITY  FOR  COSTS  208:5 

usual  security  ro(|uir('(l  is  a  bond  or  uiulcrlakiii!!  wilh  a  siifficicut 
surety  for  two  hundi'ed  and  fifty  dullars,^^  l)ut  the  plaintilf  may 
at  any  stape  of  the  ease  be  obli<red  to  file  additional  security.^* 
In  one  ease  a  bond  for  two  lliousand  dollars  was  re(iuire<i.^^ 
In  the  District  of  Ohio  it  is  iield  that  a  surety  to  a  bond  is  a 
party  to  the  suil,  and  llial  his  lialiility  can  be  enforced  by  sinu- 
mary  proceedings  after  the  final  decree;  lluil  the  statute  of 
limitations  does  iu)1  begin  to  run  in  his  favor  unlil  the  final 
decree;  and  that  security  "for  costs''  includes  the  costs  of  an 
appeal. 32  Where  a  State  statute  made  the  indorser  of  a  writ 
liable  for  the  costs,  it  was  held  that  he  remained  liable  for  costs 
in  both  State  and  Federal  courts  after  a  removal,^^  but  the  State 
practice  of  denying  an  application  for  security  for  cost,  wlien  de- 
layed until  after  answer,  is  not  followed  in  the  Southern  District 
of  New  York.34 

29  Deprez  V.  Thomson-Houston  El.  32  M  Tlaskey  v.     Bair,     79     Fed. 
Co.,  66  Fed.  22.  408. 

30  Ibid.     See  Carpenter   v.   Knoll-  33  Pullman 's  Palace    Car    Co.    v. 
wood  Cemetery,  195  Fed.  96.  Washburne,   66  Fed.   790. 

31  Ibid.  34  O'Brien  v.  Ilearn,  12')  Fed.  95. 


3 


CHAPTER  XXVIII. 

ENFORCEMENT    OP    DECREES    AND    ORDERS,    INCLUDING    EXECUTIONS 
AND  WRITS  OP  POSSESSION  AND  CONTEMPTS. 

§  426.  Enforcement  of  decrees  and  orders  in  general.     De- 
crees aiid  orders  are  enforced  in  seven  ways:  by  writ  of  execu 
tion,i  ]jy  attaeliment  for  contempt,^  by  writ  of  sequestration 
by  writ  of  assistance,*  by  the  action  of  the  court  itself  through 
the  medium  of  a  master  ^  or  receiver  ^  or  other  person  appointed 
for  that  purpose.''' 

The  Equity  Rules  provide :  ' '  Every  person,  not  being  a  party 
in  any  cause,  who  has  obtained  an  order,  or  in  whose  favor  an 
order  shall  have  been  made,  shall  be  enabled  t^  enforce  obedi- 
ence to  such  order  by  the  same  process  as  if  he  were  a  party; 
and  every  person  not  being  a  party,  against  whom  obedience 
to  any  order  of  the  court  may  be  enforced,  shall  be  liable  to 
the  same  process  for  enforcing  obedience  to  such  orders  as  if 
he  were  a  party. ' '  * 

§427.  Executions.  A  statute  passed  June  1,  1872,  and  in- 
corporated in  the  Revised  Statutes  December  1,  1873,  provides 
that  "the  party  recovering  a  judgment  in  any  common-law 
cause  in  any  Circuit  or  District  Court,  shall  be  entitled  to 
similar  remedies  upon  the  same,  by  execution  or  otherwise,  to 
reach  the  property  of  the  judgment  debtor,  as  are  now  pro- 
vided in  like  causes  by  the  laws  of  the  State  in  which  such 
court  is  held,  or  by  any  such  hereafter  enacted  which  may  be 
adopted  by  general  rules  of  such  Circuit  or  District  Court; 
and  such  courts  may  from  time  to  time,  by  general  rules,  adopt 
such  State  laws  as  may  hereafter  be  in  force  in  such  State  in 

§  426.     1  §  427.  ^  Chai)ter   xix,   supra. 

2  §§428-438.  7  15  441. 

3  §  439_  8  Eq.  Bule  11,  re-enacting  but  con- 

4  §  440.  densing  Eq.  Rule  10  of  1842. 
6  §441. 

2084 


H27J 


EXECUTIONS 


2085 


relation  to  remedies  upon  judgments,  as  aforesaid  by  execution 
or  otherwise. ' '  ^ 

In  pursuance  of  this  statute,  the  Circuit  and  District  Courts 
have  generally  promulgated  rules  adopting  the  State  practice 
in  this  respect.'^  "The  words  'in  like  causes'  were  probably 
used  because  many  of  the  States  had  adopted  codes  of  prac- 
tice, which  abolish  the  distinction  between  common  law  and 
equity  practice,  and  in  such  States  there  are  no  causes  that 
are  technically  known  as  common  law  causes."^ 

It  has  been  held  that  tlie  statute  does  not  apply  to  criminal 
cases ;  *  and  that  the  United  States  are  not  entitled  to  remedies, 
which  the  State  statutes  grant  to  the  State,  but  withhold  from 
individuals.^  The  statute  applies  to  remedies  against  the  prop- 
erty of  the  judgment  debtor  only  and  not  to  remedies  against 
his  person ;  ^  and  a  State  statute  providing  for  the  imprison- 
ment of  a  judgment  debtor,  in  certain  cases  of  malicious  prose- 
cution, is  not  followed.'''  A  State  statute  requiring  the  regis- 
tration of  a  judgment  against  a  municipal  corporation  in  a 
certain  office  before  its  enforcement  by  execution  was  applied 
to  the  judgment  of  a  Federal  court ;  *  but  a  State  statute  for- 
bidding the  enforcement  by  execution  of  a  judgment  against 
a  municipal  corporation  does  not  aflfect  the  judgments  of  a  court 
of  the  United  States.^ 

The  rules  provide  that  final  process  to  execute  any  decree 
may,  if  the  decree  be  solely  for  the  payment  of  money,  be  by 
a  writ  of  execution,  in  the  form  used  in  the  District  court  in 


§427.  lU.  S.  R.  S.,  §916;  4  St. 
at  L.,  eh.  68,  p.  281  ;  Laniaster  v. 
Keeler,  123  U.  S.  ;?76,  31  L.  ed.  238. 
The  Pennsylvania  statute  author- 
izes the  sale  of  a  patent  right  un- 
der a  special  fieri  facias.  Pennsyl- 
vania Act  of  1870  (P.  L.  .58)  ;  Erie 
Wringer  Mfg.  Co.  v.  National 
Wringer  Co.,  63  Fed.  248;  Phila- 
delphia &  B.  C.  R.  Co.'s  Appeal,  70 
Pa.  St.  355;  Floyd  v.  Farnsworth, 
12  Wkly.  Notes,  500.  Cf.  Ager  v. 
Murray,  105  U.  8.  126,  26  L.  od. 
942 ;  supra,  §  79. 

2  See  for  examples  the  rules  pro- 
nnilgated  by  the  U.  S.  C.  C,  S.  D. 
Fed.  Prai'.  Vol.  11—61 


N.  T.,  October  11,  1878,  and  Decem- 
ber 29,  1881. 

3  McDowell,   J.   in  Clark  v.  Allen, 
117   Fed.   699,  701. 

4  Clark    V.    Allen,    114    Fed.    374; 
Clark  V.  Allen,  117  Fed.  699. 

6  Clark  V.  Allen,  117  Fed.  699. 

6  Fricdly    v.    Giddings,    119    Fed. 
438. 

7  Friedly 
438. 

8  Hart    V 


V.    Giddings,    119    Fed. 


New    Orleans,    12   Fed. 
292,  293.     See  Louisiana  v.  New  Or- 
leans, 102  F.  S.  2(13,  26  L.  ed.  132. 
9  Hart    v.    New    Orleans,    12   Fed. 
292;     New     Orleans     v.     Morris,     3 


2086  ENFORCEMENT    OP    DECREES    AND    ORDERS  |  §  427 

suits  at  common  law  in  actions  of  assumpsit. ^°  A  decree 
for  a  deficiency  after  a  sale  of  mortgaged  property  in  a  fore- 
closure suit  is  enforced  in  the  same  manner. ^^ 

A  judgment  at  common  laAV  ^^  or  a  decree  in  equity  ^'  can 
be  enforced  by  execution  when  it  provides  that  either  party 
shall  recover  a  specified  sum  of  money,  although  there  is  no 
direct  provision  for  the  issue  of  an  execution ;  but  the  Federal 
court  wdll  not  ordinaril}^  issue  an  execution  against  an  executor 
to  collect  a  claim  against  the  estate  until  after  its  decree  has 
been  presented  to  the  State  court  which  has  jurisdiction  of 
the  settlement.'^*  Where  the  decree  directed,  that  plaintiff  re- 
cover a  specified  sum  of  money,  that  he  had  a  lien  upon  cer- 
tain machinery  and  that  such  machinery  be  sold  to  satisfy  the 
lien  unless  the  amount  adjudged  to  be  due  was  paid  within 
sixty  days;  that  part  of  the  sum  which  was  not  paid  by  the 
proceeds  of  the  sale  was  enforced  by  execution.^* 

In  the  absence  of  statutory  authority  no  execution  will  lie 
against  the  property  of  a  county  or  other  public  corporation,^^ 
nor  against  sureties  to  enforce  a  decree  against  their  principals 
in  a  suit  to  which  they  were  not  parties.^''' 

A  judgment  creditor  has  a  right  to  credit  money  collected 
by  execution  first  upon  that  part  of  the  indebtedness  for  the 
payment  of  which  no  surety  is  bound. ^^ 

Where  an  execution  becomes  dormant  after  levy  by  instruc- 
tions to  the  officer  not  to  sell,  it  loses  its  priority  of  lien  as 
against  later  levies  or  liens  acquired  during  its  dormancy,  but 
it  is  not  extinguished  and  upon  direction  to  proceed  with  the 
sale  it  is  entitled  to  priority  of  levy  as  against  any  liens  sub- 
sequently acquired.  ^^ 

10  Eq.  RuIp  8,  repeating  Eq.  Rule  15  Pease  v.  Rathbun-Jones  Engi- 
S    of    1842.  neering  Co.,  C.  C.  A.,  228  Fed.  290. 

11  Eq.  Rule  10,  repeating  Eq.  Rule  16  Clearwater  County  v.  Pfeffer, 
92   of   1842.  C.  C.  A.,  236  Fed.  183. 

12  Pease  v.  Rathbun-Jones  Eng.  17  Gillispie  v.  Riggs,  248  Fed. 
Co.,  243  U.  S.  273.  843. 

13  Richards  v.  Harrison,  218  Fed.  18  Santa  Marina  Co.  v.  Canadian 
i;}4.  Bank  of  Conimeree,  242  Fed.  142. 

14  Alexander  v.  Fidelity  Trust  Co.,  19  Re  Zeis,  C.  C.  A.,  24,3  Fed. 
C.   C.  A.,  249  Fed.   1,  13.  737. 


n^TaJ 


POWEKS    OF    rNTl'KI)    SPATES    MAUSIIALS 


2()S7 


A  sale  under  an  execution  is  not  a  judicial  sale  and  requires 
no  confirmation  by  the  court.^® 

Unless  the  State  statute  give  such  power  to  a  sheriff  a  Fed- 
eral marshal  cannot  collect  under  an  execution  a  bank  deposit 
as  other  debt  due  the  judgment  dcbtor.21 

§427a.  Powers  of  United  States  marshals.  Tlic  mai-slial  in 
the  courts  of  the  United  States  has  duties  analogous  to  those 
of  the  sheriff  in  the  different  States.^  It  is  his  duty  to  attend 
the  District  Courts  when  sitting  in  the  district,  and  "to  execute 
throughout  the  district  all  lawful  precepts  directed  to  him,  and 
issued  under  the  authority  of  the  United  States;  and  he  shall 
have  power  to  command  all  necessary  assistance  in  the  execu- 
tion of  his  duty.  "2  He  has  the  right  under  tlie  direction  of 
the  Attorney-General  to  protect  judges  of  the  courts  of  the 
United  States  while  in  the  discharge  of  their  official  duties,  and 
while  on  their  way  to  hold  court,  and  if  necessary,  to  take 
human  life  in  their  defense.^  "The  marshals  and  their  deputies 
have,  in  each  state,  the  same  powers  in  executing  the  laws  of 
the  United  States,  as  the  sheriffs  and  their  deputies  in  such 
State  have  by  law,  in  executing  the  laws  thereof."* 

Under  these  provisions  of  the  Revised  Statutes  the  marshal 
or  his  deputy,  if  resisted  when  in  the  performance  of  his  duty, 
may  call  to  his  aid  a  sufficient  force  from  his  district,  called  the 
po.s-.se  comiiatm,  or  power  of  his  county,  from  the  correspond- 
ing force  which  the  sheriff  or  county  officer  has  at  his  com- 
mand,6— that  is,  such  number  of  men  as  are  necessary  for  his 
assistance  in  the  execution  of  the  writs  of  the  United  States; 


20  In  Re  Haywood  Wagon  Co., 
219  Fed.  6.1;3. 

21  Berkniaii  v.  N.  Y.  Produce  Ex- 
I'liangc  Bank,  Municipal  Court,  N. 
Y.  City,  1st  Dist.  part  I,  per  Spiegel- 
iHTg,  J.,  Sept.,  1917,  N.  Y.  L.  J., 
Oct.,  1917. 

8  427a.  I  Re  Neagle,  135  U.  S. 
1,  34  L.  ed.  55;  s.  c,  39  Fed.  833; 
U.  S.  R.  S.,  «  788.  A  delivery  to  a 
sheriff  for  ''service"  is  an  unlim- 
ited delivery  and  makes  it  his  duty 
to  obey  the  command  of  the  writ 
and  to  do  all  acts  necessary  to  real- 
ize   the    money    wliich    he    is   thereby 


directed  to  collect.  Be  Tengwall 
Co.,   C.   C.    A.,   201    Fed.   82. 

2  r.  S.  R.  S.,   §  787. 

3i,'e  Neagle,  135  U.  S.  1,  34  L. 
cd.  05;   s.  c,  39  Fed.  833. 

4  U.  S.  R.  S.,  S  788 ;  Be  Neagle, 
l;;5  U.  S.  1,  68,  34  L.  ed.  55,  73.  It 
has  been  held  that  this  gives  to  the 
marshals  the  same  and  no  more 
jiower  to  arrest  without  a  warrant 
than  is  conferreil  by  the  State  .stat- 
utes upon  the  said  officers.  Be 
Acker,   6(i   Fed.   290,   294. 

5  ti   Op.   .\tty.  <}en.   466,  469. 


2088  ENFORCEMENT  OF   DECREES  AND  ORDERS  [§427a 

and  therein  every  person  above  the  age  of  fifteen  and  able  to 
travel  is  bound  to  be  aiding,  and  if  they  refuse  to  assist,  may 
be  punished  by  fine  and  imprisonment.^  It  has  been  said,  that 
this  force  by  the  common  law  included  all  persons,  whatever 
might  be  their  occupation,  whether  civilians  or  not;  and  in- 
cluding the  military  of  all  denominations, — militia,  soldiers, 
marines, — all  of  whom  were  alike  bound  to  obey  the  commands 
of  a  sheriff  or  marshal.  "The  fact  that  they  are  organized  as 
military  bodies,  under  the  immediate  command  of  their  own 
officers,  does  not  in  any  wise  affect  their  legal  character.  They 
are  still  the  posse  comitatus."'' 

An  act  of  Congress  has,  however,  provided,  that  "it  shall 
not  be  lawful  to  employ  any  part  of  the  army  of  the  United 
States  as  a  posse  comitatns,  or  otherwise  for  the  purpose  of 
executing  the  laws,  except  in  such  cases  and  under  such  cir- 
cumstances as  such  employment  of  said  force  may  be  expressly 
authorized  by  the  Constitution  or  by  act  of  Congress. ' '  *  Under 
this  statute,  it  seems  that  the  aid  of  the  army  cannot  be  ob- 
tained by  a  marshal  unless  the  President  shall  employ  it  to 
suppress  insurrection  after  a  proclamation  commanding  the 
insurgents  to  disperse.® 

The  marshal  and  his  deputies  may  carry  arms  and  use  force 
in  the  execution  of  their  official  duty  although  a  State  statute 
forbids  carrying  concealed  weapons ;  i"  but  they  may  not  make 
arrests  nor  carry  arms  outside  of  the  districts  for  which  they 
are  appointed.^^ 

The  Revised  Statutes  provide  that  "all  writs  of  execution 
upon  judgments  or  decrees  obtained  in  a  Circuit  or  District 
Court,  in  any  State  which  is  divided  into  two  or  more  districts, 
may  run  and  be  executed  in  any  part  of  such  State;  but  shall 
be  issued  from,  and  made  returnable  to,  the  court  wherein  the 
judgment  was  obtained. ' '  ^^  In  such  a  case,  the  writ  may  be 
executed   by   the   marshal   of   the   district   from   which   it   was 

6  Bac.  Abr.  Sheriff  (11).  10  U.    S.    ex    rel.     McSweeney    v. 

7  6   Op.   Atty.   Gen.  466,  473.  Fullhart,    47    Fed.    802;     Sifford's 

8  Act   of   June   18,   1878,    §5;    20       Case,  5  Am.   Law.   Reg.   659. 

St.   at  L.   145;    1   Sup.  U.   S.   R.   S.  H  Walker  v.  Lea,  47  Fed.   645. 

363.  12  U.  S.  R.  S.,   §985. 

9  16    Op.    Atty.    Gen.    162;    U.    S. 
R.  S.  §§5298,  5300. 


§  427b]  STAY    OP    EXECUTION  2089 

issued  in  the  other  district  without  any  independent  writ  being 
directed  to  him  for  that  purpose. ^^  All  writs  of  execution  upon 
judgments  obtained  for  the  use  of  the  United  States,  in  anj' 
court  thereof,  in  one  State,  may  run  and  be  executed  in  any 
other  State  or  in  any  Territory,  but  they  must  be  issued  from, 
and  made  returnable  to,  the  court  wherein  the  judgment  was 
obtained.^* 

When  a  marshal  dies,  or  is  removed  from  office,  or  his  term 
expires,  after  he  has  taken  under  execution  any  real  property 
and  before  sale  or  other  final  disposition  thereof,  the  like  process 
issues  to  the  succeeding  marshal,  and  the  same  proceeding  is 
had  as  if  his  predecessor  were  still  in  office."  In  such  a  case, 
when  the  former  marshal  has  sold  the  real  estate  but  executed 
no  deed,  the  court  may  on  application  by  the  purchaser,  or 
by  the  plaintiff  at  whose  suit  the  sale  was  made,  setting  forth 
the  case  and  the  reason  why  the  title  was  not  perfected  by 
the  former  marshal,  order  his  successor  to  perfect  the  title,  and 
execute  and  deliver  a  deed  to  the  purchaser  upon  payment  of 
the  balance  due.^^ 

§  427b.  Stay  of  execution.  At  common  law,  in  eases  where  a 
writ  of  error  may  issue  from  the  Supreme  Court, ^  or  from  a 
Circuit  Court  of  Appeals,^  the  execution  cannot  issue  until  the 
expiration  of  ten  days  from  the  entry  of  the  judgment. 

The  writ  may,  however,  be  previously  prepared  by  the  clerk.^ 

It  has  been  held :  that  when  a  motion  for  a  new  trial  is  pend- 
ing after  the  entry  of  judgment,  the  ten  days  does  not  begin 
to  run  till  such  motion  is  denied,  that  the  denial  does  not  be- 
come effective  till  the  order  has  been  filed  in  the  clerk's  office;  * 
and  that  Sundays  must  be  excluded  from  the  computation  of 
the  time.® 

Stays  of  proceedings,  pending  an  application  to  the  Supreme 
Court  of  the  United  States  for  a  writ  of  certiorari,  are  often 

18  Prevost  V.  Gorrell,  5  W.  N.   C.  2  Danielson   v.   Northwestern   Fuel 

(Pa.)    151.  Co.,  55  Fed.  49. 

14  U.  S.  R.  S.,  §986.  3  Board  of  Com'rs  v.  Gorman,  19 

16  U.   S.   R.   S.,  994;    Doolittlc   v.  Wall.  661,  22  L.  ed.  226. 

Bryan,  14  How.  563,  14  L.  ed.  543.  4  Brown    v.    Evans,    18    Fed.    56; 

16  U.    S.    R.    S.,    §  994 ;    Byers   v.  Danielson  v.  Northwestern  Fuel  Co., 

Fowler,   12   Ark.   218,   54   Am.   Dec.  55  Fed.  49. 

271.  6  Danielson  v.   Northwestern   Fuel 

§  427b.     1  U.    S.   R.    S.,    §  1007,  Co.,  55  Fed.  49. 


2090  ENFORCEMENT   OF   DECREES  AND  ORDERS  [  §  427b 

granted,  Avlien  security  has  been  given  pending  the  review  by 
the  Circuit  Court  of  Appeals.^  A  temporary  stay  of  execu- 
tion has  been  granted,  although  no  writ  of  error  was  sued  out, 
so  that  other  lienholders  might  enter  judgment  against  the 
judgment  debtor,  and  thus  share  in  the  proceeds  of  the  sale.' 

It  has  been  held  that  there  may  be  a  stay  of  execution  in 
order  to  give  the  defendant  trnie  to  file  a  bill  in  equity  to  re- 
form the  contract  upon  which  the  judgment  was  entered.* 

The  court  may  compel  the  judgment  debtor  to  give  security 
as  a  condition  of  a  stay  of  proceedings  for  more  than  ten  days 
after  entry  of  judgment.^ 

The  Revised  Statutes  further  provide  that  "when  a  Circuit 
Court  enters  judgment  in  a  civil  action,  either  upon  a  verdict 
or  on  a  finding  of  the  court  upon  the  facts,  in  cases  where  such 
finding  is  allowed,  execution  may,  on  motion  of  either  party, 
at  the  discretion  of  the  court,  and  on  such  conditions  for  the 
security  of  the  adverse  party  as  it  may  judge  proper,  be  stayed 
forty-two  days  from  the  time  of  entering  judgment,  to  give 
time  to  file  in  the  clerk's  office  of  said  court  a  petition  for  a 
new  trial.  If  such  petition  is  filed  within  said  term  of  forty- 
two  days,  with  a  certificate  thereon  from  any  judge  of  such 
court  that  he  allows  it  to  be  filed,  which  certificate  he  may 
make  or  refuse  at  his  discretion,  execution  shall  of  course,  be 
further  stayed  to  the  next  session  of  said  court.  If  a  new  trial 
be  granted,  the  former  judgment  shall  be  thereby  rendered 
void."" 

Where  a  motion  to  set  aside  a  judgment  was  granted,  upon 
condition  that  the  costs  should  be  paid  within  sixty  days,  which 
payment  was  not  made,  it  was  held  that  the  order  did  not  super- 
sede, but  merely  suspended,  the  judgment ;  and  that  the  execu- 
tion was  properh-  based  upon  the  original  judgment  and  not 
upon  one  subsequently  entered  in  the  cause.^^ 

6  Boston  &  M.  K.  Co.  v.  Gokey,  v.  Ponee  &  G.  R.  Co.,  C.  C.  A.,  246 
1.50   Fed.    686;    Dancel   v.   Goodyear       Fed.   925. 

Shoe  Maeh.  Co.,  S.  D.  N.  Y.,  March  9  Fisher  v.  Meyer,  10  Fed.  268. 

.31,1906.    Edwards  H.  Cliilds  for  the  10  U.   S.   R.   S.,   §987;   Cambuston 

motion.      Royer    Foster    opposed    in  v.    U.   S.,   9.5   U.   S.   285,   288,   24  L. 

which  the  author  was  counsel.  ed.  448.  450;  Emma  Silver  Min.  Co. 

7  Eaton  V.  Cleveland,  St.  L.  &  L.  v.  Parks,  14  Blatchf.  411,  413; 
&  K.  C.  Ry.  Co.,  41  Fed.  421.  Brown   v.  Evans,  18  Fed.  56. 

8  American   R.   Co.   of   Porto   Rico  H  U.   S.   v.  Noojin,  155  Fed.  377. 


!^  427d]  AI'I'KAISAI,   SlBSKC^rKNT   T< »    I.KVY  2091 

"In  any  State  wliero  jiidjrmeuts  are  liois  ui)()n  tlie  property 
of  the  defendant,  an<l  w  lie  re,  by  tlie  laws  of  such  State,  defend- 
ants are  entitled,  in  tlie  courts  thereof,  to  a  stay  of  execution 
for  one  term  or  more,  defendants  in  actions  in  the  courts  of 
the  United  States,  held  therein,  shall  be  entitled  to  a  stay  of 
execution  for  one  term. "  ^^  ]^  j^^s  been  held  that  this  only  applies 
where  the  defendants  has  property,  upon  which  the  judgment 
of  the  State  court  would  be  a  lien,  and  he,  by  reason  of  such 
lien,  would  be  entitled  under  the  State  law  to  a  stay.^^  A  State 
statute  providing  that  no  execution  should  issue  upon  a  judg- 
ment against  a  county  for  a  specified  period  was  followed  by 
the  Federal  court. ^* 

§  427c.  Proceedings  by  adverse  claimant.  Where  a  marshal 
takes  possession  of  property  not  subject  to  execution  which  is 
owned  by  a  party  to  the  writ,  the  case  is  one  which  arises  under 
the  laws  of  the  United  States,  and  the  Federal  District  Court 
has  jurisdiction  of  a  suit  to  recover  the  property. ^  So  is  a  suit 
against  a  marshal  for  infringing  a  State  statute  which  has  been 
adopted  by  a  rule  of  a  court  of  the  United  States.^ 

It  has  been  held  that,  where  a  marshal  under  an  execution 
in  equity  has  seized  the  property  of  a  person  not  a  defend- 
ant to  the  writ,  such  third  person  cannot  file  a  petition  pro 
interesse  suo  to  recover  possession,  but  that  his  remedy  is  an 
original  bill,  or  an  action  at  law ;  ^  that  such  a  suit  arises  under 
the  laws  of  the  United  States,  when  the  marshal  claims  that 
the  property  belongs  to  the  defendant  to  the  writ;*  but  that 
it   does  not  when  the  marshal  makes  no  such  claim.^ 

§427d.  Appraisal  subsequent  to  levy.  W  lion  it  is  required 
by  the  laws  of  any  State  that  goods  taken  in  execution  on  a 
writ  of  fieri  facias  shall  be  appraised  before  they  are  sold,  the 
appraisers  appointed  under  the  authority  of  the  State  may 
appraise  goods  taken  in  execution  on  such  a  writ  issued  out 
of  a  court  of  the  United  States,  in  the  same  manner  as  if  such 

12  U.  S.  R.  S.    §  988.  Contra,  St.  Paul,  M.  &  M.  Ry.  Co. 

13  Tl.e  Island  Queen,  152  Fed.  470.       v.    Drake,    C.    C.    A.,    72    Fed.    94.-5; 

14  Clearwater    County    v.    Pfoffor,       ■'^upra,   §258. 

C.  C.  A.    236  Fed.  183.  *  Bock  v.  Perkins,  139  U.  S.  628, 

§  427c.     1  Front     St.     Cable     Ry.  ;"-''  1-  ed.  314. 

Co.  V.  Drake,  65  Fed.  539.  6  Buek    v.    Colhatli,    3    Wall.    334, 

2Sowles  V.  Witters,  46  Fed.  497.  IS  L.  ed.  257;   supra,  §34. 

3  AV   parte    Mensiii":,   55    Fed.    17. 


2092  ENFORCEMENTS  OF  DECREES  AND  ORDERS  [§  427e 

writ  had  issued  out  of  a  court  of  such  State;  and  the  marshal, 
in  whose  custody  the  goods  are,  shall  summon  the  appraisers 
in  the  same  manner  as  the  sheriff  is,  by  the  laws  of  such  State, 
required  to  summon  them,  and  if  the  appraisers,  after  having 
been  duly  summoned,  fail  to  attend  and  perform  the  duties 
required  of  them,  the  marshal  may  proceed  to  sell  such  goods 
without  an  appraisement.^  When  such  appraisers  attend,  they 
are  entitled  to  the  like  fees  as  in  cases  of  appraisement  under 
the  laws  of  such  State.^ 

§  427e,  Interest  upon  judgment.  Under  the  Revised  Statutes, 
"interest  is  allowed  on  all  judgments  in  civil  causes  recovered 
in  a  Circuit  or  District  Court,  and  may  be  levied  by  the  marshal 
under  process  of  execution  issued  thereon,  in  all  cases  where, 
by  the  law  of  the  State  in  which  such  court  is  held,  interest 
may  be  levied  under  process  of  execution  on  judgments  re- 
covered in  the  court  of  such  state. ' '  ^  The  interest  is  calculated 
from  the  date  of  the  judgment,  at  such  rate  as  is  allowed  by 
law  on  judgments  "recovered  in  the  courts  of  such  State."* 
This  statute  does  not  apply  to  judgments  against  the  United 
States.'  It  does  not  apply  to  decrees  in  equity,  nor  to  judg- 
ments or  decrees  of  the  Supreme  Court  of  the  United  States.* 
When  a  judgment  against  a  municipal  corporation  was  re- 
vived against  its  successor  by  scire  facias,  the  order  awarded 
execution  for  interest  as  well  as  principal.^ 

It  has  been  held  that  the  right  of  the  United  States  to  issue 
execution  under  a  judgment  in  a  purely  governmental  suit, 
such  as  an  action  upon  a  bail  bond,  is  not  barred  by  any  limita- 
tion, nor  by  laches  in  failing  to  issue  the  execution  until  more 
than  ten  years  after  the  entry  of  the  judgment.^ 

§  427f .  Certifioate  of  probable  cause.  ' '  When  a  recovery  is 
had  in  any  suit  or  proceeding  against  a  collector  or  other  officer 
of  the  revenue  for  any  act  done  by  him,  or  for  the  recover^' 

§427d.     lU.     S.     K.     S.,     §993;  4  Perkins  v.  Foiirniquet,   14  How. 

Wayman    v.    Southard,    10    Wheat.       328,  331,  14  L.  ed.  441,  443. 
1,   6   L.   ed.  253.  5  Grantland   v.   Memphis,   12   Fed. 

2  U.  S.  R.  S.,  §  993.  287. 

§427e.     lU.  S.  E.   S.,   §966.  6  U.   S.   v.   Noojin,  155  Fed.   377. 

2  Ibid. 

3U.  S.  V.  Sherman,  98  U.  S.  565, 
25  L.  ed.  235. 


§  427f ]  CERTIFICATE  OF  PROBABLE  CAUSE  2093 

of  any  money  exacted  by  or  paid  to  him  and  by  him  paid  into 
the  Treasury,  in  the  performance  of  his  offkial  duty,  and  the 
court  certifies  that  there  was  probable  cause  for  the  act  done 
by  the  collector  or  other  officer,  or  that  he  acted  under  the 
directions  of  the  Secretary  of  the  Treasury  or  other  proper 
officer  of  the  government,  no  execution  shall  issue  against  such 
collector  or  other  officer,  but  the  amount  so  recovered  shall 
upon  final  judgment  be  provided  for  and  paid  out  of  the  proper 
appropriation  from  the  Treasury."^ 

It  has  been  said:  "I  think  this  statute  means:  (1)  Where 
the  officer  who  ordered  the  seizures  had  no  reasonable  grounds 
for  suspecting  a  violation  of  law,  the  recovery  against  him,  if 
he  is  sued,  shall  be  personal,  and  shall  be  collected  from  him. 
(2)  Where  the  subordinate  officer  who  made  the  seizure  had 
no  order  from  a  superior  to  make  it,  and  acted  without  rea- 
sonable grounds  for  suspecting  a  violation  of  law,  the  recovery 
shall  be  against  him  personally,  and  shall  be  collected  from 
him.  (3)  But  where  the  seizure  was  made  under  orders  from 
a  proper  superior  officer  or  where  the  seizure  was  made  on 
what  reasonably  seemed  to  be  proper  cause,  the  recovery  may 
still  be  had  against  the  officers;  but  it  is,  by  the  certificate 
provided  for  in  the  statute,  converted  into  a  recovery  against 
the  government.  If  this  is  not  the  meaning  of  the  statute,  I 
am  at  a  loss  to  understand  what  its  does  mean.  Surely  Congress 
was  not  making  provision  to  relieve  revenue  officials,  and  to 
provide  for  payment  by  the  government,  in  contemplation  of 
illegal  judgments  to  be  rendered  by  the  courts.  If  the  intent 
was  not  to  allow  recoveries  in  such  cases  as  we  have  here,  the 
statute  would  simply  have  forbidden  recoveries  where  the  officer 
acted  under  proper  orders,  or  where  there  was  reasonable 
ground  to  suppose  that  the  seizure  should  be  made,  or,  perhaps 
there  would  have  been  no  statute  enacted.  The  question  might 
have  been  left  as  at  common  law."^ 

§  427f.     lU.  S.  R.  S.,  §989;   Cox  James,    :\    Fo<l. '513;    Dunnegan    v. 

V.  Barney,  14  Blatchf.  289;   Andrae  U.   S..   17    Ct.    CI.   240,   247;    White 

V.    RedfieW,    12    Blatchf.    407;    Fre-  v.   Arthur,  10  Fed.  80;   Flanders  v, 

richs  V.  Coster,  22  Fed.  637;  Schell  Seelye,    10.5    U.    S.    718,    26    L.    ed. 

V.    Cochran,    107   V.    S.    625,   27    L.  1217.      See   supra.    §§  96g,   96h. 
ed.   543;    U.   S.   v.   Sherman,   98   U.  2  Havmes     v.     Brown,     132     Fed. 

S    565,  25  L.  ed.  235;   Campbell  v.  525,  527. 


2094  ENPORCEMEXT   OF   DKCKKES   AND   ORDERS  [§'127f 

The  effect  of  this  statute  is  after  such  certificate  has  been 
given  practically  to  convert  the  suit  against  the  officer  into  a 
claim  against  the  United  States.^  There  is  no  liability  on  the 
part  of  the  government  until  there  has  been  a  recovery  against 
the  officer,  and  a  certificate  of  probable  cause  has  issued.* 

The  certificate  will  be  granted  where  it  is  affirmatively  shown 
that  the  officers,  who  instituted  the  proceedings,  acted  in  good 
faith  and  on  reasonable  ground  of  suspicion,  although  the  ver- 
dict of  the  jury  against  them  was  clearly  right  under  the  evi- 
dence.^ The  court  is  not  justified  in  granting  such  a  certificate 
to  a  collector  of  internal  revenue  who  acted  at  the  request  of 
a  revenue  agent  whose  only  authority  was  an  instruction  from 
the  chief  clerk  of  the  supervisor.^ 

A  certificate  may  be  granted  by  a  judge  who  did  not  try 
the  case.'''  If,  however,  that  judge  has  denied  the  application, 
another  judge  will  rarely,  if  ever,  grant  it.^  A  certificate  may 
be  granted  before  or  after  an  execution  is  issued.^  A  certificate 
cannot  be  granted  before  trial. ^*> 

In  case  of  appeal  or  writ  of  error,  no  money  will  be  paid 
out  of  the  Treasury  upon  the  judgment  until  an  affirmance 
by  the  appellate  court  and  entry  of  judgment  below  in  accord- 
ance Avith  its  mandate. ^^ 

It  has  been  held  that  after  judgment  neither  the  govern- 
ment nor  the  collector  is  liable  for  interest. ^^  The  Supreme 
Court  of  the  United  States,  upon  affirming  a  judgment  in  such 
a  case,  will  allow  interest  on  it,  which  will  be  included  by  the 
court  below  in  its  judgment  of  affirmance.^^  It  has  been  held 
that  when  the  government  has  had  no  notice,  actual  or  con- 
structive, and  no  opportunity  to  defend,  it  is  not  concluded 
by  the  certificate  of  probable  cause. ^*  The  postmasters  are  not 
included  within  the  statute. ^^     A  similar  statute  regulates  an 

3U.  S.  V.  Sherman,  98  U.  S.  .565,  10  Aiidrae  v.  Redfield,  12  Blatchf. 

2o   L.   ed.   235.  407. 

4 Ibid.;       Cox      v.      Barney,      14  U  Sehell    v.    Coehran,    107    U.    S. 

Blatchf.  289.               '  625,  27  L.  ed.  543. 

BU.  S.   V.  8o   Saeks  of  Wool  and  12  White    v.    Arthur.    10    Fed.    80. 

5.974  Sheepskins,  147  Fed.  747.  13  Sehell    v.    Cochran,    107    U.    S. 

SFrerichs  v.  Coster,  22  Fed.  637.  (i25,  27  L.  ed.  543. 

7  Cox  V.   Barney,  14  Blatchf.  289.  14  Dunnegan   v.   U.   S.,   17   Ct.   CI. 

SFreriehs  v.  Coster,  22  Fed.  637.  247. 


') 


9  Cox  V.  Barney,  14  Blatchf.  289.  15  Campbell  v.  James,  3  Fed.  513. 


§  427gJ  i'ROCEEniXOS    sri'IM,KMKXT.\KV    TO    KXHiTTION  2095 

action  against  a  person  "for  or  on  account  of  any  thing  done 
by  him  while  an  officer  of  either  House  of  Congress  in  the  dis- 
charge of  his  official  duty."^^ 

The  Revised  Statutes  further  provide:  "  Wlien,  in  any  prose- 
cution commenced  on  account  of  the  seizure  of  any  vessel,  goods, 
wares,  or  merchandise,  made  by  any  collector  or  other  officer, 
under  any  act  of  Congress  authorizing  such  seizure,  judgment 
is  rendered  for  the  claimant,  but  it  appears  to  the  court  that 
there  was  reasonable  cause  of  seizure,  the  court  shall  cause  a 
proper  certificate  thereof  to  be  entered,  and  the  claimant  shall 
not,  in  such  case,  be  entitled  to  costs,  nor  shall  the  person  who 
made  the  seizure,  nor  the  prosecutor,  be  liable  to  suit  or  judg- 
ment on  account  of  such  suit  or  prosecution :  Provided,  that 
the  vessel,  goods,  wares,  or  merchandise  be,  after  judgment, 
forthwith  returned  to  such  claimant  or  his  agent.  "^''^  It  has 
been  held  that  this  is  not  inconsistent  with  the  statute  previously 
quoted;  and  that  in  no  case  can  there  be  a  recovery  against  a 
revenue  officer  for  a  wrongful  seizure  upon  probable  cause, 
when  the  goods  are  returned  intact;  the  remedy  of  the  com- 
plainant being  limited  to  a  claim  for  loss  or  damages  to  his 
property  while  in  the  custody  of  the  officer,  which  can  be  col- 
lected only  from  the  government. ^^ 

§  427^.  Proceedings  supplementary  to  execution.  By  the 
adoption  of  a  I'ule  to  that  effect,  a  IJi.strict  Court  of  the  United 
States  at  common  law  acquires  power  to  enforce  the  proceed- 
ings supplementary  to  execution  authorized  by  the  State  stat- 
utes,i  including  the  right  to  examine  strangers  to  the  suit,  in 
order  to  ascertain  the  existence  and  location  of  the  assets  of 
the  judgment  debtor  ;2  but  not  jurisdiction  of  an  independent 
bill  in  equity  authorized  by  a  State  statute,  and  not  within  the 
ordinary  chancery  jurisdiction ;  ^  nor  can  a  Federal  Court  of 
equity  enforce  such  a  State  statute.* 

Equitable  assets  held  by  tlie  defendant  to  a  decree  in  which 

16  18   St.  at  L.,  p.  371.  661,  29  L.  ed.  226.  228.     See  §«  .')1- 

17  U.  S.  R.  S.,  §970.  151e. 

ISAgnew    V    Haymes,    C.    C.    A.,  2  Walker   v.   Monad   Eng.    Co.,   C. 

141   Fed.  6.31.  ('.  A.,  196  Fed.  206. 

S  427g.     I  Ex  pane  Boyd,  105  V.  3  Hudson  v.  Wood,  119  Fed.  764. 

S.  647,  26  L.  ed.  1200;   Canal  &  C.  4  Regina   Music   Box   Co.  v.  F.   G. 

St.  R.  Co.  V.  Hart,  114  U.  S.  651,  Otto  &  Son,  124  Fed.  747. 


2096 


ENFORCEMENT  OP  DECREES  AND  ORDERS 


[§428 


no  strangers  to  the  suit  claim  any  interest  can  be  subjected 
to  the  payment  of  sums  thereby  awarded  through  the  appoint- 
ment of  a  receiver,^  or  otherwise,  upon  a  petition  in  the  orig- 
inal cause.^  An  original  bill  for  that  purpose  is  irregular; 
but  it  may  be  sustained  as  such  a  petition,'  Then  no  subpoena 
need  be  served,  an  ordinary  notice  being  sufficient,* 

It  has  been  held  that  the  new  equity  rules  ^  authorize  pro- 
ceedings to  collect  the  amount  awarded  by  a  decree  in  equity 
to  be  made  in  the  manner  prescribed  by  the  State  statutes,  and 
that  a  trustee  against  whom  a  decree  in  equity  has  been  ren- 
dered in  his  representative  capacity  may  be  examined  in  pro- 
ceedings supplementary  to  execution  in  accordance  with  the 
State  practice.^" 

§  428.  Contempts.  An  attachment  is  the  proper  process  to 
compel  obedience  to  a  decree  or  order  requiring  the  performance 
of  a  specific  act  other  than  the  payment  of  money,^  or  to  punish 
a  contempt  of  court. ^  It  seems,  that  in  districts  held  in  States 
where  imprisonment  for  debt  has  been  abolished,  disobedience  to 
a  decree  or  order  for  the  paj^ment  of  money  cannot  be  punished 
by  attachment ;  ^  unless  the  defaulting  party  is  an  officer  of  the 
court,  as  an  attorney,*  or  has  bid  in  property  at  a  judicial  sale ;  ^ 
or  the  motion  is  made  by  a  master  or  the  clerk  of  the  Supreme 
Court  to  compel  payment  of  his  fees,^  It  is  a  contempt  to  evade 
obedience  to  an  order  or  decree  by  acts  which  are  tantamount  to 
a  violation,  although  there  are  colorable  changes  from  what  has 
been  forbidden.'''    Thus,  where  the  injunction  forbad  a  sale  at  a 


6  Dancel  v.  Goodyear  Shoe  Ma- 
chinery Co.,  explained  supra,  §  302. 

6Maitland  v.  Gibson,  79  Fed. 
136. 

7  Ibid. 

8  Ibid. 

»Eq.   Rule   8. 

10  Brown  v.  Fletcher,  239  Fed. 
360. 

§428.  IRule  8;  Mallory  Mfg. 
Co.  V.  Fox,  20  Fed.  409. 

2U.  S.  E.  S.,  §  725;  Re  Chiles,  22 
Wall.  157,  22  L.  ed.  819. 

3  Mallory  Mfg.  Co.  v.  Fox,  20  Fed. 
409;  Nelson  Morris  &  Co.  v.  Hill, 
89  Fed.  477. 


4  Jeffries  v.  Laurie,  27  Fed.  195; 
Re  Pitman,  1  Curtis,  186;  Bagley 
V.  Yates,  3  McLean,  465;  The  Lau- 
rens, 1  Abb.  Adm.  508;  Re  Paschal, 
10  Wall.  483,  19  L.  ed.  992;  U.  S. 
V.  Mann,  2  Brock.  9. 

5  Camden  v.  Mayhew,  129  U.  S. 
73,  32  L.  ed.  608. 

6  Equity  Rule  68;  S.  C.  Rule  10; 
Cutting  V.  Van  Fleet,  252  Fed.  100, 
supra,  §  395. 

7  U.  S.  V.  Southern  Wholesale  Gro- 
cers '  Ass'n,  207  Fed.  434;.  Lovell 
MeConnell  Mfg.  Co.  v.  International 
Automobile  League,  C.  C.  A.,  202 
Fed.  219. 


§  428]  coNTEsii'Ts  2097 

discount  from  prices  fixed  l)y  a  patent  license,  a  charge  of 
the  fixed  price,  followed  by  a  return  to  tiie  purchaser  of 
a  check  for  the  amount  of  the  jn-evious  discount  payable  to 
a  charity  selected  l)y  tlic  latter,  was  punished  as  a  contempt.* 
Where  the  injunction  forbad  the  cii-culation  of  a  book  oi- 
list  containing  only  the  names  of  a  certain  class  of  dealers, 
it  was  said  that  tlic  adding  to,  or  omission  of  names  from 
such  a  list  with  tlic  intent  of  evading  the  decree  would  be' 
a  contempt.*  Where  an  injunction  forbad  members  of  an  as- 
sociation from  confederating  to  prevent  manufacturers  from 
selling  goods  to  dealers  not  listed  in  a  book  published  by  the 
association  it  was  held  that  it  was  violated  by  continuing  to 
send  a  li.st  containing  the  names  only  of  those  who  had  agreed 
to  maintain  the  minimum  prices  established  by  the  as.sociation 
to  the  same  manufacturers  when  seeking  information  as  to  the 
standing  of  those  wishing  to  buy  from  them,  and  by  stating  that 
none  of  the  methods,  rules,  practices  or  activities  of  the  asso- 
ciation would  be  aft'ected  by  the  decree.^*' 

The  courts  of  the  United  States  have  power  "to  punish  by 
fine  or  imprisonment,  at  the  discretion  of  the  court,  contempts  of 
their  authority:  Provided,  that  such  power  to  punish  contempts 
shall  not  be  construed  to  extend  to  any  cases  except  the  misbe- 
havior of  any  person  in  their  presence,  or  so  near  thereto  as  to 
obstruct  the  administration  of  justice,  the  misbehavior  of  any  of 
the  officers  of  said  courts  in  their  official  transactions,  and  the 
disobedience  or  resistance  of  any  such  officer,  or  by  any  party, 
juror,  witness,  or  other  persons,  to  any  lawful  writ,  process,  or- 
der, rule,  decree,  or  command  of  the  said  courts.""  Beyond 
this  the  District  Courts  have  no  such  power.^^  The  act,  ju.st 
quoted  in  terms,  applies  to  all  courts.  Whether  it  can  be  held  to 
limit  the  authority  of  the  Supreme  Court,  which  derives  its  ex- 
istence and  powers  from  the  Constitution,  is  doubtful. ^^ 

An  act  committed  in  the  presence  of  the  judge  at  his  dwelling 

8  Lovell-MeConncll  Mfg.  Co.  V.  In-  12  Ts'j-    parte    Rohinsoii,    19    Wall, 

ternational  Autoinol)il(>  Loajjiic,  C.  C.  505,  510. 

A.,  202  Fed.  219.  13  Field,  J.  in  Ex  parte  Robinson, 

9U.     S.     V.     Southern    Wliolesale  19   Wall.    505,   510.      State   v.    Mor- 

Oroeers'  A.ss'n,  207  Fed.  434,  4.39.  rill,    l(j    Ark.    .■!S4  ;    Little    v.    State. 

10  U.  S.  V.  Soutliern  Wliolesale  90  liid.  ;!.;8 ;  Hale  v.  State,  55  Ohio 
(iroeers'  Ass'n,   207    Fed.   4:!4,   4;!9.  St.   210;    State    v.    Shepherd    (S.   0. 

11  V.  S.  R.  S.,  §  725.  Mo.),  76  S.  W.  79;   Hawes  v.  State, 


2098 


ENPXJRCEMENT   OP   DECREES  AND   ORDERS 


[§428 


while  the  court  is  in  recess  although  in  a  room  occasionally  used 
as  a  court  room,  is  not  committed  in  the  presence  of  the  court." 
The  word  "near"  has  been  construed  as  used  in  its  literal  sense 
as  a  designation  of  locality  but  with  a  broader  meaning  as  includ- 
ing a  natural  tendency  and  effect. ^^ 

The  phrase,  "so  near  the  presence  of  the  court  as  to  obstruct 
the  administration  of  justice"  applies  to  all  acts  of  misbehavior 
the  natural  tendency  and  effect  of  which  is  to  interfere  with  the 
administration  of  justice,  wherever  the  acts  may  be  committed.^^ 
"The  test  of  the  requisite  nearness  is  made  by  Congress  to 
depend  upon  the  effect  of  the  act  upon  the  administration  of 
justice.  If  obstructive  of  it  in  fact,  it  will  be  held  to  have  been 
committed  near  enough  the  presence  of  the  court  to  come  within 
the  meaning  of  the  act.  The  locality  is  important  only  as  re- 
flecting upon  whether  the  misbehavior  is  or  is  not  obstructive. ' '  ^"^ 

It  is  a  contempt  of  court  to  interfere,  otherwise  than  by  a 
judicial  proceeding,  with  a  judicial  sale  or  a  sale  under  an  exe- 
cution ;  as  it  has  been  held  by  representation  in  words  or  circu- 
lars to  bidders  and  persons  present  that  the  sale  was  irregular 
and  unfair,^^  or  by  combination  to  restrain  competition.^^ 

It  is  a  contempt  for  a  public  officer  to  attempt  unlawfully  to 
dispossess  the  court,  its  officers  or  its  records  from  rooms  in 
which  they  are  located. ^'^ 


46  Nebraska,  1-49;  Carter  v.  Com- 
monwealth, 96  Va.  791,  45  L.  R.  A. 
;nO,  32  S.  E.  780.  See  Constitu- 
tional Regulation  of  Contempt  of 
Court,  Harv.  Law  Rev.,  xiil,  615; 
Statutory  Restriction  on  the  Power 
of  Courts  to  Punish  for  Contempt, 
Yale  L.  J.,  Dec.  1908.  It  was  held, 
that  a  statute  was  unconstitutional 
which  provided,  that,  in  all  cases  of 
indirect  contempt,  the  party  charged 
should  be  entitled  to  have  the  ease 
tried  by  a  different  judge  than  the 
one  who  made  the  order  and  by  a 
jury.  Smith  v.  Speed,  11  Oklaho- 
ma, 95,  55  L.R.A.  402;  Be  Creely, 
(fJala.  Ct.  of  App.,  First  Dist.,  Au- 
gust, 1908)  97  Pac.  766.  That  this 
can  be  done  has  been  held   in  People 


ex  rel.  Munsel  v.  Court  of  Oyer  & 
Terminer,  101  N.  Y.  245;  Be  Old- 
ham, 89  N.  C.  2.3,  45  Am.  Rep.  67:{; 
criticised  by  N.  Y.  L.  J.,  November 
28,   1908. 

14  U.  S.  V.  Huff,  206  Fed.  700, 
704. 

15  U.  S.  V.  Huff,  206  Fed.  700,  702, 
705. 

16  Ibid. 

17  U.  S.  V.  Huff,  206  Fed.  700, 
705,  per  Grubb,  J.  See  Toledo  News 
Paper  Co.  v.  U.  S.,  247  U.  S.  402, 
affirming    C.    C.    A.,    2.37    Fed.    458. 

18  Be  Sowles,  41  Fed.  752. 

19  Be  Boyd,  228  Fed.  100.3,  see 
.'ni.pra,    §  394. 

20  Be  Lyman,  55  Fed.  29. 


§428] 


CONTEAIl'T: 


2099 


^lisbehavior  in  the  presence  of  the  court  may  consist  in  an 
assault,^^  or  in  abusive  language  addressed  to  the  court,^^  or  one 
of  its  officers,23  or  any  person  in  the  court-room.'^*  Similar  con- 
duct in  an  ante-room  of  the  court,  or  so  near  the  court-room  as 
to  be  heard  therein, ^^  or  seen  therefrom,  or  from  the  jury-room,^^ 
is  also  punishable  as  a  contempt. 

So  are  an  assault  upon  a  trustee  in  bankruptcy  while  in  the 
performance  of  his  duties,^''^  and  interference  with  property  held 
in  an  ofificial  capacity  l)y  a  Federal  marshal  or  his  deputy,^^  or 
by  a  Federal  receiver.^^  Whei-e  an  order  directed  the  officers, 
agents  and  attorneys  to  turn  over  to  a  receiver  all  notes  of  their 
corporation  in  their  possession  the  attorney  was  held  to  be  guilty 
of  contempt  for  delivering  notes  which  he  held  to  the  president 
who  destroyed  them.^"  It  is  not  a  contempt  to  institute  a  suit 
in  a  State  court,  to  enjoin  a  receiver  appointed  by  a  court  of  the 
L'nited  States,  from  executing  the  order  of  the  latter  court,^^  al- 


21  Sharon  v.  Hill,  24  Fed.  726;  'Ex 
parte  Terry,  128  U.  S.  289,  ;?2  L. 
ed.  405;  Be  Terry,  .36  Fed.  419;  V. 
S.  V.  Patterson,  26  Fed.  509;  U.  S. 
V.  Barrett,  187  Fed.  .378. 

22  Ex  parte  Terry,  128  L".  S.  289, 
32  L.  ed.  405;  Be  Terry,  36  Fed. 
4]9. 

ZSEx  parte  Terry,  128  I'.  S.  289, 
32  L.  ed.  405;  Be  Terry,  36  Fed. 
419;  such  as  a  judge,  or  an  attor- 
ney, U.  S.  V.  Barrett,  187  Fed.  378 ; 
Cf.  Be  Newman,  C.  C.  A.,  214  Fed. 
69. 

24  U.  S.  V.  Emerson,  4  Cranch,  C. 
C.  188;  U.  S.  V.  Carter,  3  Cranch. 
C.  C.  423. 

26  U.  S.  V.  Emerson,  4  Cranch,  C. 
C.  188. 

26  U.  S.  V.  Barrett,  187  Fed.  .378. 

27  Writ  of  error  dismissed,  O'Neal 
V.  U.  S.,  190  U.  S.  36,  47  L.  e<l. 
945;  writ  of  habeas  corpus  denied; 
Ex  parte  O'Neal,  125  Fed.  967. 
This  commitment  was  one  of  the 
grounds  for  the  impeachment  of 
Judge  Swayne,  who  was  acquitted 
l)v  the  Senate  of  the  United  States. 


28  A  seizure  hy  a  sheriff,  under 
State  process,  of  jiroperty  in  the 
custody  of  a  deputy  marshal  after 
its  sale  hy  the  marshal,  but  before 
its  delivery  to  the  buyer,  is  a  con- 
tempt of  the  Federal  Court.  Sabin 
V.  Fogavty,  70  Fed.  482.  Where  a 
marshal  wlio  had  replevied  goods 
allowed  the  plaintiff 's  agents  to  put 
them  in  a  car  and  to  procure  a  ship- 
ping receipt  and  bill  of  lading  for 
the  same,  directed  to  a  stranger  to 
the  suit,  it  was  held  that  the  prop- 
erty had  passed  out  of  the  custody 
of  the  Federal  Court  and  that  a 
sheriff  who  levied  a  State  writ  of 
attachnuMit  ujion  thcTu  was  not 
guilty  of  contempt.  Animarium  Co. 
V.  Bright,  82  Fed.   197. 

29  Be  Tyler,  149  l".  S.  164,  37  L. 
ed.  689;  Royal  Tr.  Co.  v.  Washburn, 
B.  &  I.  K.  Co.,  C.  C.  A.,  139  Fed. 
865,  Be  Dialogue,  215  Fed.  462, 
.supra.    S  311. 

30  Be  Star  Si)ring  Bed.  Co..  C.  C. 
A..  203  Fed.  640. 

31  Royal  Tr.  Co.  v.  Washburn,  B. 
&  I.  R.  Co.,  C.  V.  A.,  139  Fed.  865. 


2100 


ENFORCEMENT   OF  DECREES  AND  ORDERS 


[§428 


though  an  attempt  to  enforce  such  a  mandate  of  the  State  court 
would  be.^^ 

The  filing  of  a  brief  containing  a  scandalous  and  insulting  at- 
tack on  the  conduct  of  the  judge,  from  whose  decision  an  appeal 
was  taken,  was  held  to  be  a  ground  for  suspending  the  attorneys 
indefinitely  from  practice  before  the  Circuit  Court  of  Appeals, 
where  such  brief  was  filed,^^  but  not  to  be  a  ground  for  disbarring 
them  from  practice  in  a  Circuit  Court  of  the  United  States  in 
another  Circuit.^* 

It  was  held  that  the  fact  that  a  marshal  knew  a  talesman, 
whom  he  subpoenaed  under  an  open  venire,  to  be  a  friend  of  the 
defendant  in  a  criminal  case,  is  not  sufficient  to  convict  him  of 
a  wilful  contempt  of  court,^^  and  it  has  been  said  that  a  bare 
attempt,  without  success,  to  induce  a  third  person  to  do  what  he 
could  to  influence  jurors  in  a  pending  case  in  a  Federal  court,  is 
not  a  contempt. ^^ 

It  has  been  held  to  be  a  contempt  to  assault  a  United  States 
commissioner,  because  of  some  past  judicial  action  by  him,^''' 
and  to  inflict  cruel  and  unusual  punishment  upon  a  Federal 
prisoner. ^^ 

It  has  been  said  to  be  a  contempt  for  an  attorney  to  carry  a 
pistol  into  court. ^^ 

A  hearing  before  a  master  in  chancery  or  examiner,  is  for  this 
purpose,  treated  as  a  proceeding  in  court.*"  Proceedings  before 
a  grand  jury  are  considered  to  be  in  the  presence  of  the  court.*^ 
It  is  a  contempt  for  a  grand  juror  to  disclose  the  testimony  upon 
which  an  indictment  was  based ;  ^  and  for  a  petit  juror  to  dis- 


32  Ibid. 

33  ^e  Watt  &  Dohan,  C.  C.  A., 
Second  Circuit,  July  1,  1905,  ap- 
]. roved  (C.  C.  E.,  D.  Pa.),  149  Fed. 
1009. 

34  ^e  Watt  &  Dohan,  149  Fed. 
1009. 

35  Richards  v.  U.  S.,  C.  C.  A.,  126 
Fed.   105. 

36  U.  S.  V.  Carroll,  147  Fed.  947. 

37  Ex  parte  McLeod,  120  Fed.  130. 
38i?e     Birdsong,     39     Fed.     599; 

where   the  prisoner   was  chained   by 


the  neck  so  that  he  could  neither 
lie  nor  sit  and  left  so  chained  in 
darkness  for  several  hours  of  the 
night. 

39  Sharon  v.  Hill,  24  Fed.  726. 

40  Sharon  v.  Hill,  24  Fed.  726;  U. 
S.  V.  Anonymous,  21  Fed.  761. 

41  Heard  v.  Pierce,  8  Gushing 
(Mass.)  338,  341,  54  Am.  Dec.  757; 
cited  Be  Savin,  131  U.  S.  267,  277, 
33  L.  ed.  150,  153. 

42  ^e  Atwell,  140  Fed.  368. 


§428] 


CONTEMPTS 


2101 


CUSS  a  ease,  in  violation  of  the  court's  direction  to  the  contrary,*^ 
and  to  tampei'  with  a  juror  oi-  witli  a  talesman  before  he  is  se- 
lected for  a  jury,**  although  the  offense  is  committed  at  some  dis- 
tance from  the  court-house,  but  within  the  jurisdiction  of  the 
court. *^  Such  is  the  conduct  of  counsel  in  treating  a  juror  to  a 
drink,  and  private  conversations  with  a  juror  in  which  one  re- 
spondent promised  to  introduce  him  to  a  legislator  and  the  other 
listened  to  a  request  for  aid  in  promoting  a  bill  without  either 
promising  or  refusing  such  a  system.** 

An  attempt  in  the  hall  adjoining  the  room  where  a  trial  is  in 
progress  to  bribe  a  witness  subpoenaed  to  attend  it,  is  a  contempt 
of  court.*'''  Bribery  of  a  witness  in  the  town  where  the  court  is 
held  has  been  held  to  be  a  contempt  within  the  statute.*'  So  is 
an  attempt  to  intimidate  a  witness.*^  It  has  been  held  to  be  a 
contempt  of  court  to  interrupt  and  violently  break  up  the  testi- 
mony of  a  witness  before  an  examiner  by  questioning,  prompting 
and  talking  with  the  witness.^®  An  attorney  has  been  punished 
for  contempt  in  instituting  an  unfounded  suit  in  a  State  court 
against  a  Federal  judge,  for  the  purpose  of  disqualifying  the  lat- 
ter from  hearing  a  pending  cause.*^ 

It  has  been  said  that  it  might  be  a  contempt  to  ask  relief  which 
might  obstruct,  delay  or  embarrass  the  court  in  proceeding  under 
the  mandate  of  a  court  of  review.^^  a  State  district  attorney 
may  l)e  punished  for  contempt  in  applying  to  a  State  court  for  a 
mandamus,  to  compel  a  Federal  receiver  to  disobey  an  order  of 


iZEe  May,  1  Fed.  7H7;  U.  S.  v. 
Devaughan,  3  Cranch,  C.  C.  84. 

iiRc  Cuddy,  1.31  U.  S.  280,  .3.3  L. 
ed.  154;  Kirk  v.  U.  S.,  C.  C.  A.,  192 
Fed.  27.3;  Kelly  v.  U.  S.,  C.  C.  A., 
250  Fed.  947;  He  Kelly,  24.3  Fed. 
696. 

45  U.  S.  V.  Carroll,  147  Fed.  947; 
Kirk  V.  U.  S.,  C.  C.  A.,  192  Fed.  273. 

46i?e  Kelly,  243  Fed.  696,  aff'd 
C.  C.  A.,  250  Fed.  947 ;  certiorari  de- 
nied, Tolen  V.  U.  S.,  248  U.  S.  oS.l. 

47  Savin,  Petitioner,  1.31  U.  S. 
267,  33  L.  ed.  150;  Fischer  v.  Mc- 
Daniel,  9  "Wyoming  457. 

48i?e  Brule,  71  Fed.  943;  U.  S. 
V.  Carroll,  147  Fed.  947.  See  Cud- 
Fed.  Prac.  Vol.  11—62 


dy,  Petitioner,  131   V.  S.  280,  33  L. 
ed.  l.")4. 

49  Turk  v.  State  Arkansas,  April, 
1919,  185  S.  W.  472. 

50  U.  S.  V.  Anonymous,  21  Fed. 
761. 

51  Ej-  parte  Davis,  112  Fed.  139. 
Application  for  writ  of  prohibition 
denied,  Fe  Paquet,  C.  C.  A.,  114 
Fed.  437.  This  commitment  was 
one  of  the  grounds  for  the  impeach- 
ment of  Judge  Swayne,  who  was  ac- 
quitted by  the  Senate  of  the  United 
States. 

52  Coram  v.  Davis.  174  Fed.  664, 
665. 


21U2 


ENFURCEMENT   OF  DECREES  AND  ORDERS 


[§428 


the  Federal  coiirt.^^  It  was  held  to  be  a  contempt  of  court  to 
sue  in  a  court  of  another  State  a  party  while  there  for  the  pur- 
pose of  attending  the  taking  of  a  deposition ;  and  a  fine  of  the 
expenses  of  such  suit,  including  the  counsel  fees  therein,  was 
imposed  upon  the  party  who  brought  it.^* 

It  is  not  a  contempt  for  an  attorney  to  call  the  attention  of  the 
State  court  to  certain  facts,  which  result  in  an  order  that  invades 
the  Federal  jurisdiction,  when  such  order  is  entered  upon  the 
court's  own  motion ;  ^^  nor  for  an  attorney  to  advise  his  client 
that  an  order  is  void,  when  he  does  not  advise  the  client  to  dis- 
obey the  same.^®  It  has  been  said  to  be  a  contempt  of  court  to 
bring  before  it  a  collusive  suit.*''' 

The  Federal  court  cannot  punish  for  contempt,  a  person  w^ho 
is  not  its  officer,  nor  a  suitor  therein,  upon  the  charge  of  using, 
or  of  an  attempt  to  use,  its  process,  to  obstruct  the  administra- 
tion of  justice  in  a  State  court.*^ 

It  has  been  held  not  to  be  a  contempt  to  take  in  another  State 
and  file  and  publish  within  the  jurisdiction,  the  deposition  in  a 
case  there  pending,  for  the  purpose  of  deceiving  the  court,  when 
the  paper  has  not  been  offered  in  evidence,*^  nor  to  conspire  to 
commit  a  contempt  of  court.®" 

It  is  a  contempt  for  even  a  judge  to  disobey  a  w^rit  of  super- 
sedeas,®^ even  though  the  payment  or  decree  below  has  been 
affirmed,  when  no  mandate  has  been  issued.®^     To  lynch  a  pris- 


63Eoyal  Tr.  Co.  v.  Washburn,  B. 
&  I.  R.  Ry.  Co.,  ]13  Fed.  5.31; 
A(/;)m,  §  811. 

64  Bridges  v.  Sheldon,  7  Fed.  17, 
4.5-47 ;  stipra,  §  167.  But  see  Blight 
V.  Fisher,  Pot.  C.  C.  41. 

BBSe  Watts  &  Sachs,  190  U.  S.  1, 
47  L.  ed.  933.  But  see  Be  Fortu- 
nate, 123  Fed.  622. 

66  Be  Noyes,  C.  C.  A.,  121  Fed. 
209,  226. 

67  Lord  V.  Veazie,  8  How.  251,  12 
L.  ed.  1067. 

6SBe  Riggsbee,  151  Fed.  701; 
Cleveland  v.  Chamberlain,  1  Black, 
419,  17  L.  ed.  93. 

59  Doniphan  v.  Lehman,  179  Fed. 
173. 


SOlhid. 

61  Be  Noyes,  C.  C.  A.,  121  Fed. 
209,  225;  where  the  judge  was  fined 
.$1,000.  The  disobedience  consisted 
in  letters  to  the  marshal,  directing 
him  to  "hold  things  in  statu  quo" 
and  to  guard  gold  dust,  which  by 
the  writ  a  receiver  had  been  di- 
rected to  return  to  the  defendants 
to  the  suit,  and  in  a  letter  to  the 
military  commander  asking  him  to 
render  the  marshal  such  assistance 
as  was  required. 

62  Merrimack  River  Sav.  Bank  v. 
City  of  Clay  Center,  219  U.  S.  527, 
55  L.  ed.  320. 


S  428J  CONTEMl'TS  2103 


s 


oner,  who  is  in  the  eutitody  of  a  State  jailer,  pending  a  super- 
sedeas from  a  court  of  the  Ignited  States  which  prevents  liis 
execution  until  an  appeal  from  an  order  denying  an  application 
for  the  writ  of  habeas  corpus  lias  been  decided.^^  It  has  been 
said  to  be  a  contempt  of  an  appellate  court  to  destroy  property 
pending  an  appeal  from  a  decree  denying  a  prayer  for  an  iu- 
junction  against  such  destruction,^*  and  that  the  issue  by  the 
court  of  first  instance  of  an  injunction  against  such  destruc- 
tion pending  the  appeal  does  not  deprive  the  appellate  court 
of  jurisdiction  to  punish  the  act.^* 

It  is  a  contempt  to  part  with  money  pending  an  application  to 
compel  the  payment  thereof  into  court,®^  but  not  for  a  bankrupt 
to  misappropriate  assets  subject  to  the  order  of  the  court  when 
the  court  has  made  no  order  in  relation  to  them.^' 

Advice  to  disobey  a  writ,  when  given  to  a  marshal  by  a  United 
States  District  Attorney  and  by  a  representative  of  the  Depart- 
ment of  Justice  is  a  contempt  of  court. ^® 

It  has  been  held  that  it  is  a  contempt  for  a  person  duly  sub- 
pcenaed  to  refuse  to  attend,  no  matter  how  immaterial  his  evi- 
dence may  be  and  irrespective  of  the  sufficiency  of  the  pleadings 
in  the  suit ;  ^®  and  for  a  person  to  refuse  to  attend  and  produce 
documents,  when  he  has  been  duly  served  with  a  subpoena  duces 
tecum  requiring  the  production  of  the  same,  although  they  are 
immaterial  to  the  suit  J**  and  although  the\'  may  tend  to  criminate 
liim7^  In  the  latter  case,  it  is  his  duty  to  raise  the  oljjcction 
after  he  has  produced  the  documents  in  court.'^  It  was  held 
that  a  man  was  guilt}-  of  contempt  for  failing  to  attend  in  obedi- 
ence to  a  subpoena  and  to  present  to  the  conrt  the  facts  which  ex- 
es u.  S.  V.  Shipp,  203  U.  S.  .363,  69  Nelson  v.  U.  S.,  201  U.  S.  92, 
;31   L.  ed.  .S19.                                                  114,   50    L.    ed.    673,    685;    Fairfield 

64  Merrimack  River   Sav.   Bank  v.       v.  U.  S.,  C.  C.  A.,  146  Fed.  .508. 
City  of  Clay  Center,  219   U.  S.  .=)27,  70  Fairfield  v.  U.  S.,  C.  C.  A.,  146 

o")  L.  ed.  320.  Fed.  508. 

66Ihi(l.  71  r.  S.  V.  Collins,   146  Fed.   ."):!: 

66Wartnian  v.  Wartman,  Taney,  U.  S.  v.  Terminal  R.  Ass 'n,  14H  Fed. 
362,  29   Fed.  Cas.,   p.  303,  No.   17,-       486. 

210.  72  U.  S.  V.  Collins,  146  Fed.  ri'/.i; 

67  2?e  Probst,  C.  C.  A.,  205  Fed.  T'.  S.  v.  Terminal  R.  Ass'n,  148  Fed. 
512.  486. 

eSBe  Noyes,  C.   C.   A.,   121   Fed. 
209,  228,  231. 


2104 


ENFORCEMENT   OF   DECREES  AND   ORDERS 


[§428 


cused  him  from  attendance,'^  and  to  evade  service  of  an  order  '* 
although  he  may  evade  service  of  process  in  the  suitJ^ 

It  was  held  by  a  State  court  that  concealment  to  avoid  service 
of  a  subpoena  is  a  criminal  contempt,'^  and  so  has  been  held  to  be 
an  attempt  to  entice  out  of  the  jurisdiction  or  conceal  a  witness 
who  has  not  yet  been  served.''''  A  member  of  a  firm  was  not 
punished  for  disobedience  to  a  subpoena  duces  tecum  requiring 
him  to  produce  papers  in  the  possession  of  his  partners  in  an- 
other country  althougli  lie  had  not  requested  them  to  send 
them.'* 

It  has  been  held  that  a  court  has  no  jurisdiction  to  punish  as 
a  contempt  a  violation  of  an  oral  stipulation  made  in  open 
court."^* 

An  attorney  **•  or  other  officer  *^  of  the  court  may  be  thus 
compelled  to  pay  to  a  person  named  in  the  order  money  received 
by  him  in  his  official  capacity.  Where,  however,  there  is  room 
for  a  reasonable  doubt  as  to  how  much  is  due  from  the  officer,  the 
court  will  usually  refuse  to  proceed  against  him  summarily,  and 
require  the  complaining  party  to  begin  a  suit.*^ 

It  is  a  contempt  of  court  for  a  person  to  assist  another,  whether 
acting  as  the  latter 's  agent  or  otherwise,  in  committing  an  act 
which  has  been  forbidden  to  himself  in  an  injunction  issued 
against  him  individualh^®' 


73  Carman  v.  Emerson,  C.  C.  A., 
71  Ted.  264. 

liBe  Eiee,  181  Fed.  217. 
76  Ibid. 

76  Aaron  v.  State  Mississippi  1913, 
62  So.  41p.,  approved  Harvard  Law 
Rev.,  Dec.  1913,  XXVII,  p.  165, 
Col.  Law  Eev.  Dec.  1913,  p.  746; 
N.  Y.  L.  J.  Oct.  8,  1913,  criticized, 
17  Law  Notes  104. 

77  Eex.  v.  Carroll  Victoria  L.  R. 
A.,  Dee.  1913,  p.  380,  382. 

78Munroe  v.  U.  S.,  C.  C.  A.,  216 
Fed.  107,  reversing  210  Fed.  326. 

n9Ex  parte  Buskirk,  C.  C.  A.,  72 
Fed.  14,  20. 

MEe  Paschal,  10  Wall.  483,  19 
L.  ed.  992;  Jeffries  v.  Laurie,  27 
Fed.  195. 


ilBe  Pitman,  1  Curt.  186;  Bag- 
ley  V.  Yates,  3  McLean,  465;  The 
Laurens,  1  Abb.  Adm.  508. 

82  See  Be  Paschall,  10  Wall.  483, 
19  L.  ed.  992;  U.  S.  v.  Mann,  2 
Brock.  9. 

83Dadirrian  v.  Gullian,  79  Fed. 
784;  Diamond  Drill  &  Mach.  Co.  v. 
Kelley  Bros.  &  Spielman,  130  Fed. 
893;  Be  Rice,  181  Fed.  217,  an  at- 
torney. A  person  enjoined  from 
the  infringement  of  a  patent  was 
held  to  commit  a  contempt  by  con- 
tributing to  a  fund  to  defray  the 
expenses  of  another  who  was  eon- 
testing  the  validity  thereof.  Bate 
Ref.  Co.  V.  Gillett,  30  Fed.  683. 
It  has  been  held :  that  a  defendant 
corporation    which,    when    enjoined 


§  428a] 


CONTEMPT    BY    PUBLICATION 


2105 


A  party  is  guilty  of  contempt  by  violating  an  injunction  as 
the  agent  of  a  corporation  which  he  has  organized." 

A  domestic  or  foreign  corporation,  as  well  as  an  individual, 
may  be  fined  for  a  contempt.*^ 

It  is  no  defense  to  a  proceeding  for  the  punishnicut  of  a  de- 
fendant for  the  violation  of  an  injunction  against  the  infringe- 
ment of  a  patent,  by  himself  or  his  employees,  that  he  had  in- 
structed them  to  obey  the  injunction  and  that  the  violation  was 
made  Avithout  his  knowledge. ^^ 

§428a.  Contempt  by  publication.  The  older  cases  both  in 
the  English  Chancery  and  the  Federal  courts  hold  that  it  is  a 
contempt  to  criticise  in  the  press  the  conduct  of  the  court, ^ 
and  to  publish  anything  which  may  create  a  prejudice  against 
either  party  to  a  pending  cause.'^ 

In  1825  a  large  number  of  suits  against  the  United  States 
founded  upon  Spanish  land  claims  were  pending  in  the  District 
Court  for  the  District  of  IMissouri.  After  an  opinion  in  favor 
of  the  Government  in  a  suit  by  Antoine  Soulard,  his  attorney. 


from  selling  a  certain  cordial  in  cer- 
tain bottles  with  a  particular  label, 
sold  its  entire  stock  of  cordials  with 
such   bottles   and   labels   to    a   third 
person,  under  an  arrangement  that 
he  would  fill  all  orders  for  the  cor- 
dial which  the  defendant  should  re- 
ceive,  was   guilty   of   contempt;    al- 
though   it     did    not    share    in    the 
profits  of   such   sales,   and  although 
it.    acted    under    advice    of    counsel. 
Societe    Anonyme    v.    Western    Dis- 
tilling Co.,  42  Fed.  96.    It  was  held 
that    a    defendant    had    violated    an 
injunction     against     his     "making, 
using   or   vending   for   use''   certain 
specified    articles,    where,    after    the 
injunction,   he   sold   such   an   article 
previously     manufactured.        A.     B. 
Dick  Co.  v.  Wickelman,  89  Fed.  95; 
and  that   an   injunction  against  the 
sale  of  certain  articles  was  not  vio- 
lated by  the  sale  of  articles  of  that 
character    which    had    been    bought 
from   the  plaintiff.     i?c  Rubin,   193 


Fed.  42.1.  Parties  were  held  guilty 
of  contempt  when  they  had  paid 
the  expenses  of  an  act  prohibited 
in  an  injunction  against  them, 
which  was  committed  by  an  appli- 
cant to  them  for  employment.  Mo- 
tion Picture  Patents  Co.  v.  Laemmle, 
186  Fed.  641;  L.  E.  Waterman  Co. 
V.  Standard  Drug  Co.,  C.  C.  A.,  202 
Fed.   167. 

84  U.  S.  Envelope  Co.  v.  Transo 
Paper  Co.,  221  Fed.  79;  Frank  F. 
Smith  Metal  Window  Hardware  Co. 
V.  Yates,  C.  C.  A.,  244  Fed.  793. 

85  U.  S.  V.  Memphis  &  L.  R.  R. 
Co.,  6  Fed.  237. 

86  Gillette  Safety  Razor  Co.  v. 
Wolf,  180  Fed.  776. 

§  428a.  1  See  the  language  of 
Lord  Chancellor  Hardwicke  in  2 
Atk.  469,  471;  Hollingsworth  v. 
Duane,  Wall.  C.  C.  77-100;  U.  S.  v. 
Duane,  Wall.  C.  C.  102. 

2  Be  Read  &  Huggonsou,  Atk.  469. 


2106 


ENFORCEMENT   OF   DECREES  AND   ORDERS 


[§428a 


Edward  Lawless,  published  a  letter  in  a  newspaper  in  which  he 
deplored  and  with  no  more  unfairness  than  is  usual  in  newspa- 
per arguments  pointed  out  certain  errors  into  which  he  claimed 
the  judge  had  fallen  when  rendering  the  decision.  The  decision 
was  subsequently  reversed  by  the  Supreme  Court  of  the 
United  States.'  The  District  Judge,  James  H.  Peck,  as  soon 
as  he  read  the  article,  brought  Lawless  by  a  writ  of  attachment 
before  himself,  abused  him  for  some  time  in  open  court,  held 
the  attorney  guilty  of  contempt,  ordered  his  imprisonment  for 
twenty-four  hours,  and  suspended  him  from  the  bar  of  the  court 
for  eighteen  calendar  months.  The  result  was  to  prevent  the 
attorney  from  any  further  prosecution  of  land  claims  since  the 
time  for  bringing  such  suits  expired  shortly  after,  or  during, 
his  term  of  punishment. 

This  caused  the  impeachment  of  Judge  Peck,  who  was  acquit- 
ted because  the  majority  against  him  did  not  amount  to  two- 
thirds  of  the  Senate.*  The  acquittal  resulted  in  the  passage  of 
the  Act  of  March  2,  1831,  previously  quoted,  limiting  the  power 
of  the  courts  of  the  United  States  to  punishment  for  contempt 
to  the  misbehavior  of  any  person  in  their  presence  or  so  near 
thereto  as  to  obstruct  the  administration  of  justice,  the  misbe- 
havior of  any  of  their  officei-s  of  the  courts  in  otBcial  transac- 
tions, and  the  misbehavior,  disobedience  or  resistance  of  any  such 
officer;  or  by  any  party,  juror,  witness,  or  any  other  person  to 
a  writ,  proceeding,  order,  decree  or  command  of  such  courts.* 
This  was  modelled  upon  a  Pennsylvania  statute  passed  in  1809,^ 
following  a  similar  acquittal  of  the  bench  of  the  Supreme  Court 
of  that  State,  all  but  one  of  whom  had  been  impeached  for  im- 
prisoning Thomas  Passmore  for  public  abuse  of  Andrew  Bayard 
because  of  the  latter 's  institution  of  proceedings  to  set  aside  a 
judgment  upon  an  award  of  arbitrators.'    It  has  been  copied  in 


3Soulard  v.  U.  S.,  4  Peters  510; 
s.  c.  10  Peters  100. 

4  Eeport  of  the  Trial  of  James  H. 
Peck,  Judge  of  the  United  States 
District  Court  for  the  District  of 
Missouri  before  the  Senate  of  the 
United  States  on  an  impeachment 
preferred  by  the  House  of  Repre- 
sentatives against  him  for  High 
Misdemeanors  in   office.     By  Arthur 


J.  Stansbury,  Boston.  Published 
by  Hilliard  Gray  &  Co.,  1833,  p. 
592;  Foster's  Commentaries  on  the 
Constitution,   §  90. 

6  4  St.  at  L.  487,  re-enacted  U.  S. 
R.  S.,  §  725 ;  Judicial  Code,  §  268, 
;:6  St.  at  L.  1087. 

6  Pa.*  Public  Laws,  April  3,  1909, 
ch.  Ixxviii,  p.   146. 

7  Report  of  the  Trial  and  Acquit- 


§  428a]  CONTEMl'T    HV     ITHI>I(   \TI(i\  21()7 

whole  or  in  part  by  many  States  of  the  I'liion.  Th.-  I'ennsyl- 
vania  act  contained  a  direction  that  publication  out  of  court 
should  not  be  made  the  basis  of  summary  attaehment  and  punish- 
ment. 

Notwithstanding?  this  statute,  it  has  been  held  by  a  majority  of 
the  Supreme  Court  of  the  United  States,  two  Justices  dissent- 
ing and  two  not  voting,  that  a  publication  tends  to  obstruct  the 
administration  of  justice  and  may  consequently  be  punished  for 
contempt  when  its  manifest  purpose  was  to  engender  a  shrinking 
in  the  mind  of  a  judge  from  deciding  the  case  otherwise  than  as 
advocated  by  the  writer  through  creating  an  impression  on  the 
judge's  mind  that  he  could  not  decide  otherwise  without  giving 
rise  to  suspicion  as  to  the  integrity  or  fairness  of  his  purposes  or 
motives;  when  it  directly  tends  to  incite  to  such  a  condition  of  the 
public  mind  as  leaves  no  room  for  doubt,  that  if  the  judge,  act- 
ing on  his  belief  and  conviction,  grants  relief  to  the  complainant 
he  would  be  subject  to  odium  and  hatred:  when  it  was  also  obvi- 
ously intended  to  produce  the  impression  that  any  order  which 
might  be  rendered  by  the  judge,  not  in  accordance  with  the  opin- 
ions of  the  writer,  would  be  disregarded ;  and  when  its  character, 
because  of  intemperance  or  general  tendency,  was  such  as  to 
produce  in  the  public  mind  a  condition  which  might  give  rise  to 
a  refusal  to  respect  any  order  which  the  court  might  render  in 
contiict  with  the  rights  advocated  by  the  public.^    The  dissenting 
opinion  of  Mr.  Justice  Holmes  is  clear  and  .^strong: 

tal  of  Edward  Shippen,  Esq.,  Chief  fine  upon  the  newspaper  of  $7,500 
Justice,  and  Jasper  Yeates  and  and  costs  and  fined  the  writer  of  the 
Thomas  Smith,  Esquires,  Assistant  articles  $200.  It  has  been  held  in 
Justices  of  the  Supreme  Court  of  Ohio,  under  a  .similar  statute,  that 
Pennsylvania.  On  an  Impeachment,  the  publication  of  charges  of  mis- 
before  the  Senate  of  the  Common-  conduct  against  a  judge  holding 
wealth,  January,  1805.  By  William  court,  in  a  newspaper  which  the 
Hamilton,  Editor  of  the  Lancaster  writer  had  reason  to  believe  would 
Journal,  Lancaster:  printed  by  the  be  circulated  and  read  in  the  court- 
Reporter,  p.  491.  With  an  Appen-  room,  and  which  was  thus  circu- 
dix,  p.  96;  Foster's  Commentaries  lated  and  read,  is  "misbehavior  in 
on  the  Constitution,  Vol.  I,  Appen-  the  presence  of  or  so  near  the  court 
dix  663-664.  f>r  .iudge  as  to  obstruct  the  admin- 
8  Toledo  Newspaper  Co.  v.  U.  S.,  istration  of  court  or  .iustice. "  Myers 
247  U.  S.  402,  412,  414.  affirming  v.  State,  21  W.  L.  Bull.  404;  s.  c. 
C.  C.  A.,  2.37  Fed.  986,  affirming  220  46  Ohio  St.  47.3.  15  Am.  St.  Rep. 
Fed.    458.      Killetts,   J.,    imposed    a  638,  22  N.  E.  4:{.     See  Patterson  v. 


2108  ENFORCEMENT   OF   DECREES  AND  ORDERS  [§  428a 

"When  it  is  considered  how  contrary  it  is  to  our  practice  and 
ways  of  thinking  for  the  same  person  to  be  accuser  and  sole 
judge  in  a  matter  which,  if  he  be  sensitive,  may  involve  strong 
personal  feeling,  I  should  expect  the  power  to  be  limited  by  the 
necessities  of  the  case  'to  insure  order  and  decorum  in  their  pres- 
ence' as  is  stated  in  Ex  pwrte  Rohinsoyi,  19  Wall.  505.  See 
Prynne,  Plea  for  the  Lords,  309,  cited  in  Mcllwain,  The  High 
Court  of  Parliament  and  its  Supremacy,  191.  And  when  the 
words  of  the  statute  are  read  it  seems  to  me  that  the  limit  is  too 
plain  to  be  construed  away.  To  my  mind  they  point  and  point 
only  to  the  present  protection  of  the  Court  from  actual  inter- 
ference, and  not  to  postponed  retribution  for  lack  of  respect  of 
its  dignity — not  to  moving  to  vindicate  its  independence  after 
enduring  the  newspaper's  attacks  for  nearly  six  months  as  the 
Court  did  in  this  case.  Without  invoking  the  rule  of  strict  con- 
struction I  think  that  'so  near  as  to  obstruct'  means  so  near  as 
actually  to  obstruct — and  not  merely  near  enough  to  threaten  a 
possible  obstruction.  'So  near  as  to'  refers  to  an  accomplished 
fact,  and  the  word  'misbehavior'  strengthens  the  construction  I 
adopt.  Misbehavior  means  something  more  than  adverse  com- 
ment or  disrespect. 

"But  suppose  that  an  imminent  possibility  of  obstruction  is 
sufficient.  Still  I  think  that  only  immediate  and  necessary  ac- 
tion is  contemplated,  and  that  no  case  for  summary  proceedings 
is  made  out  if  after  the  event  publications  are  called  to  the  at- 
tention of  the  judge  that  might  have  led  to  an  obstruction  al- 
though they  did  not.  So  far  as  appears  that  is  the  present  case. 
But  I  will  go  a  step  farther.  The  order  for  the  information  re- 
cites that  from  time  to  time  sundry  numbers  of  the  paper  have 
come  to  the  attention  of  the  judge  as  a  daily  reader  of  it,  and  I 
will  assume,  from  that  and  the  opinion,  that  he  read  them  as 
they  came  out,  and  I  will  assume  further  that  he  was  entitled 
to  rely  upon  his  private  knowledge  without  a  statement  in  open 
court.  But  a  judge  of  the  United  States  is  expected  to  be  a  man 
of  ordinary  firmness  of  character,  and  I  find  it  impossible  to  be- 
lieve that  such  a  judge  could  have  found  in  anything  that  was 

Colorado,   205  U.   S.  454,   51  L.  ed.  Legal    News,    November    16,    1902. 

879;   People  v.  Wilson,  64  111.   195,  The  last  word  upon  the  subject  has 

16  Am.  Eep.  528;  Be  Hearst's  Chi-  not  been  spoken, 
eago  American  (C.  C.  111.),  Chicago 


428a] 


CONTEMPT    BY    PUBLICATION' 


2109 


printed  even  a  tendency  to  prevent  his  performing  his  sworn 
duty.  I  am  not  considering  whether  there  was  a  technical  con- 
tempt at  common  law  but  whether  what  was  done  falls  within  the 
words  of  an  act  intended  and  admitted  to  limit  the  power  of  the 
courts. ' '  ^ 

The  rule  now  in  force  in  England  was  stated  by  the  Privy 
Council  at  the  end  of  the  thirteenth  century:  "Committals  for 
contempt  by  scandalizing  the  court  itself  have  become  obsolete  in 
this  country.  Courts  are  satisfied  to  leave  to  public  opinion  at- 
tacks or  comments  derogatory  or  scandalous  to  them."  i° 

Public  criticism  in  a  newspaper  or  otherwise  of  the  conduct 
and  integrity  of  a  judge  is  ordinarily  not  a  contempt." 

"The  nature  of  the  abuse  which  the  restrictive  statute  was  in- 
tended to  correct  throws  light  upon  its  proper  construction. 
Prior  to  its  enactment,  as  stated,  federal  judges  had  inflicted 
punishment  for  contempt  based  upon  improper  criticisms  of  their 
conduct  and  decisions,  published  after  the  cases  had  been  finally 
determined.  This  had  been  resented,  and  the  judges  impeached 
therefor.  The  impeachments  had  failed  because  under  the  Judi- 
ciary Act  the  judges  were  clothed  with  discretion  to  decide  what 
constituted  contempts  of  their  authority.  This  was  the  mischief 
which  Congress  intended  to  remedy  by  the  act  restricting  con- 
tempts to  defined  classes.  Congress  was  evidently  of  the  opinion 
that  the  subjecting  of  judges  to  criticism  in  the  press,  if  it  did 
not  obstruct  the  administration  of  justice,  was  of  advantage  to 
the  judges,  and  that  the  citizens  should  not  be  punished  there- 
for.   The  limitation  to  this  was  that  (1)  the  criticism  should  not 


9  Ibid;  247  U.  S.  602,  42.%  424. 
See  Baldwin,  J.,  in  ex  yarte  Poul- 
son,  15  Haz.  Reg.  (Pa.)  380,  Fed. 
Cas.    11,350. 

lOMcLeod  v.  St.  Aubyn,  (1899) 
A.  C.  549,  561.  See,  however,  the 
subsequent  English  case  of  Regina 
V.  Gray  (1900),  2  Q.  B.  36. 

11  Cuyler  v.  Atlantic  &  N.  C.  R. 
Co.,  131  Fed.  95,  98,  99  (criticism 
by  Josephus  Daniels  of  the  appoint- 
ment of  a  receiver) ;  U.  S.  v.  Huff, 
206  Fed.  700,  704;  People  ex  rel. 
Barnes  v.  Albany  Court  of  Ses- 
sions, 147  N.  Y.  290,  297;   State  v. 


Circuit  Court,  97  Wise.  1.  Contra, 
State  V.  Shepherd,  177  Mo.  205,  99 
Am.  St.  Rep.  624,  76  S.  W.  79; 
criticized  in  Am.  Law  Review,  Sep- 
tember-Oftober,  1903;  defended  in 
Yale  L.  J.,  December,  1903;  Be 
Hughes,  8  N.  M.  225,  43  Pac.  692. 
See  U.  S.  ex  rel.  Guaranty  Tr.  Co. 
V.  Gehr,  116  Fed.  520;  where  a  man 
was  punished  for  using  abusive  lan- 
guage and  opprobrious  epithets,  in 
public  denouncements  of  the  judge, 
for  official  action  in  granting  an  in- 
junction. This  last  case  was  criti- 
cised in  N.  Y.  L.  J.,  Nov.  21,  1902. 


211U  EXP^ORCEMEXT   OF   DECREES  AND   ORDERS  [§  428a 

be  administered  in  the  presence  of  the  court,  and  (2)  that  its 
tendency  should  not  be  obstructive  of  the  due  administration  of 
justice.  The  judge  was  deprived  by  the  act  of  all  immunity  from 
outside  criticism  which  affected  him  only  as  an  individual.  The 
court  and  the  judge,  as  an  arm  of  it,  was  still  carefully  protected 
by  the  act  from  all  criticism  that  interfered  with  or  obstructed 
the  proper  administration  of  justice  by  it.  On  the  one  hand, 
Congress  determined  that  criticism  of  a  judge  that  related  to  no 
litigation  in  his  court,  or  such  as  related  only  to  such  litigation 
as  had  finally  been  disposed  of,  was  not  so  directly  obstructive 
of  the  administration  of  justice  as  to  form  properly  the  subject 
of  a  charge  of  contempt.  On  the  other  hand.  Congress  deter- 
mined that  the  expression  of  criticism  of  the  judge  or  of  his  de- 
cisions in  the  presence  of  the  court  and  during  its  sessions  was 
misbehavior  in  itself,  though  in  its  nature  not  otherwise  directly 
obstructive  of  the  due  administration  of  justice,  since  it  was  in 
its  tendency  destructive  of  the  order  necessary  to  enable  the 
court  to  accomplish  its  business."  ^^ 

But  criticism  in  a  newspaper  of  the  conduct  and  integrity  of 
the  judge  may  be  a  contempt  when  it  is  intended  to  influence 
the  jury,^3  or  perhaps  when  it  is  in  the  nature  of  a  threat  against 
a  judge,  intended  to  influence  his  action  in  a  case  still  pending 
before  him,^*  or  where  it  advises  or  incites  disobedience. 

It  has  been  held  to  be  a  contempt :  to  accuse  a  judge  of  corrupt 
motives  in  his  action  in  a  litigation  which  is  not  terminated. ^^ 
To  write  abusive  letters  to  a  judge  because  of  his  rulings  in  a 
suit  still  pending.  1^  To  make  a  mis-statement  concerning  his  rul- 
ings in  an  unfinished  litigation.^'  To  publish  evidence  which 
had  not  been  offered  and  was  inadmissible  against  a  defendant, 

12  U.    S.    V.    Huff,    206    Fed.    700,  14  Toledo  Newspaper  Co.  v.  U.  S., 

704.     Per  Grubb,  J.  247  U.  S.  402. 

iSCuyler   v.   Atlantic  &  N.   C.   R.  15  U.    S.   v.    Markewich,   261   Ted. 

Co.,  131  Fed.  95,  99.     See  Patterson  5;?7. 

V.  Colorado,  205  U.  S.  4.54,  51  L.  ed.  16  U.    S.   v.    HufF,   206   Fed.    700; 

879;     Telegram    Newspaper    Co.    v.  He  Independent  Pub.  Co.,  228  Fed. 

Commonwealth,    172    Mass.    294,    44  787. 

L.  R.  A.  159,  70  Am.  St.  Rep.  280;  17  U,   S.  v.  Craig,  I).  C,  S.  D.  N. 

King  V.  Tibbits  &  Windust,   (1902)  Y.,  March  8,  1920,  per  Mayer,  J. 
1  K.  B.  77.     See  Cooper  v.   People, 

i;;  Colo.  :{;]7,  6  l.  r.  a.  430. 


§  428b] 


PKR.TITRY    AS    A    CONTKMl'T 


2111 


})('udiiig  his  trial  tor  a  felony. ^^  'j-,,  j)ul)lish  tlu'  names  of  wit- 
nesses that  have  been  called  before  a  grrand  jury  tofrether  with  a 
statement  of  documentary  evidence  which  it  is  said  to  be  be- 
lieved that  they  have  produced.  It  is  no  defense  to  such  a  pro- 
ceeding that  the  publication  was  truc^^  Noi-.  that  the  newspapei- 
was  not  circulated  in  the  court  room.^"  Nor,  that  it  was  not 
seen  by  the  judge  or  jury.^i  Nor.  that  it  did  not  intiuencc 
judicial  actions.22  ]V[or,  it  has  been  said,  that  the  suit  to  which 
the  publication  referred  was  not  within  the  jui-isdiction  of  the 
court.^* 

A  fine  was  imposed  upon  the  managing  editor  because  he 
failed  in  his  duty  to  exercise  proper  supervision  although  he 
did  not  personally  see  the  article  before  its  publication. 2* 

It  has  been  said  that  a  false  report  of  a  decision  is.  '"in  its 
essence,  a  common  law  contempt  of  court."  ^^ 

It  has  been  held  that  it  is  a  contempt  to  represent  by  words 
and  by  printed  circulars,  that  a  sale  under  an  execution  is  in- 
valid, and  that  any  one  who  buys  will  become  involved  in  liti- 
gation.^^ 

§  428b.  Perjury  a^  a  contempt. 

All  perjury  is  not  a  contempt  of  court,  for  this  would  deprive 
a  pai-ty  charged  with  the  offense  of  his  right  to  trial  by  jury.^ 
Perjury  which  is  an  obstruction  to  the  performance  of  judicial 
duty  is  a  contempt  and  may  be  punished  as  such.^ 

What  perjury  constitutes  such  an  obstruction  necessarily  de- 


ls Ee  Independent  Pub.  Co.,  228 
Fed.  787,  affirming  C.  C.  A.,  240 
Fed.  849. 

19 1:.  R.  ex  rel.  Guaranty  Tr.  Co. 
V.  Gelir,  116  Fed.  520;  Be  Independ- 
ent Pub.  Co.,  228  Fed.  787;  U.  S. 
V.  Providence  Triliune  Co.,  241  Fed. 
524. 

20  Toledo  Newspaper  Co.  v.  V.  S., 
247  U.  S.  402,  421,  affirming  C.  C. 
A.,  237  Fed.  986,  affirming  220  Fed. 
458. 

21  Ibid. 

22  Ibid. 

23  V.  S.  V.  Toledo  Newspaper  Co., 
220   Fed.   4.58,  494. 

2'kRc  Independent   I'lib.  Co.,  C.  C. 


A.,  240  Fed.  849,  affirming  228  Fed. 
787. 

26  Patterson  v.  Colorado,  205  I'. 
S.  454,  51  L.  ed.  879;  Gorhani  Mfg. 
Co.  V.  Emery  B.  T.  D.  E.  Co.,  92 
Fed.  774,  780.  Contra,  Asbestos 
Shingle,  Slate  &  Sheathing  Co.  v. 
•lohns-Manville  Co.,  189  Fed.  671. 

26AV  Sowles,  41  Fed.  752. 

§  428b.  1  Ex  parte  Hudgins,  249 
r.  S.  378. 

2  Ex  parte  Hudgin.s.  249  V.  S. 
.".78;  He  Fellernian,  149  Fed.  244,  in 
which  tlie  author  was  counsel.  This 
case  was  settled  by  a  remission  of 
the  jienalty  of  imjtrisonment  as  to 
(ine  of  the  respondents  and  a  stijm- 


2112 


ENFORCEMENT   OF   DECREES  AND  ORDERS 


[§428b 


pends  upon  the  circumstances  of  each  case.  A  persistent  denial 
of  recollection  regarding  recent  transactions  directly  within  the 
knowledge  of  the  witness  and  facts  which  he  must  have  known 
has  been  treated  as  a  contempt.^  So  have  been  repeated  vague 
answers  concerning  alleged  transactions  which  were  highly  im- 
probable such  as  losses  by  gambling*  and  even  repeated  self 
contradictions,^  but  not  the  repeated  denial  of  recollection  as  to 
whether  a  witness  had  seen  a  person  write.^ 

"If  the  witness'  conduct  shows  beyond  any  doubt  whatever 
that  he  is  refusing  to  tell  what  he  knows,  he  is  in  contempt  of 
court.  That  conduct  is,  of  course,  beyond  question  when  he 
flatly  refuses  to  answer,  but  it  may  appear  in  other  ways.  A 
court,  like  anyone  else  who  is  in  earnest,  ought  not  to  be  put 
off  by  transparent  sham,  and  the  mere  fact  that  the  witness  gives 
some  answer  cannot  be  an  absolute  test.  For  instance,  it  could 
not  be  enough  for  a  witness  to  say  that  he  did  not  remember 
where  he  had  slept  the  night  before,  if  he  Avas  sane  and  sober, 
or  that  he  could  not  tell  whether  he  had  been  married  more  than 
a  week.  If  a  court  is  to  have  any  power  at  all  to  compel  an 
answer,  it  must  surely  have  power  to  compel  an  answer  which 
is  not  given  to  fob  off  inquiry.  Nevertheless,  this  power  must 
not  be  used  to  punish  perjury,  and  the  only  proper  test  is 
whether  on  its  mere  face,  and  without  inquiry  collaterally,  the 
testimony  is  not  a  bona  fide  effort  to  answer  the  question  at 
all."  7 

It  has  been  held  that  perjury  by  a  bankrupt  upon  an  exami- 
nation to  ascertain  the  amount  and  location  of  his  assets,^  or  by 


lation  of  the  other  not  to  attack  the 
commitment  by  an  application  for 
a  writ  of  habeas  corpus  or  other- 
wise. Ex  parte  Bick,  155  Fed. 
908;  Be  Gordon,  167  Fed.  .32,  89; 
Be  Singer,  174  Fed.  208;  Be  Smith, 
185  Fed.  983;  Be  Shear,  188  Fed. 
677;  Be  Sehulman,  C.  C.  A.,  177 
Fed.  191;  U.  S.  v.  Appel,  211  Fed. 
495. 

ZBe  Fellerman,  149  Fed.  244, 
249;  Be  Sehulman,  C.  C.  A.,  177 
Fed.  191;  U.  S.  v.  Appel,  211  Fed. 
495,    approved;    Ex  parte   Hudgins, 


249  U.  S.  378,  383;  Berkson  v. 
People,  154  111.  81;  39  N.  E.  1079. 

4  U.  S.  V.  Appel,  211  Fed.  495,  ap- 
proved Ex  parte  Hudginfe,  378,  383. 

6  Be  Fellerman,  149  Fed.  244,  249. 

^Ex  parte  Hudgins,  249  U.  S.  378. 

7U.  S.  V.  Appel,  211  Fed.  495, 
496,  per  Learned  Hand,  J. 

SBe  Fellerman  (S.  D.  N.  Y.), 
149  Fed.  244.  This  was  subsequent- 
ly approved  in  Ex  parte  Bick  (C. 
C.  S.  D.  N.  Y.),  155  Fed.  908;  Be 
Gordon,  167  Fed.  239;  Be  Singer, 
174   Fed.   208;   Be  Smith,   185   Fed. 


§  428b] 


J'EK.JURY    AS    A    CONTEMl'T 


2113 


a  witness  *  upon  an  examination  before  a  referee  in  bankruptcy, 
or  by  an  affiant  when  the  affidavit  is  submitted  to  the  court,^® 
otherwise  not,^^  should  be  punished  as  a  contempt  of  court.  So 
may  perjury  by  a  surety  on  a  judicial  bond  as  to  his  prop- 
erty given  upon  his  justification.^^ 

Where  the  offense  charged  was  perjury  before  a  commissioner 
or  referee,  a  certificate  by  the  officer  indicating  that  in  his  opin- 
ion the  testimonv  was  false  must  be  presented  to  the  court. ^^ 


98.T;  Be  Shear,  188  Fed.  677.  But 
see  Re  Bronstein,  182  Fed.  349;  Be 
Wiesebrock,  188  Fed.  757. 

9  The  contempt  proceedings  can 
be  instituted  before  the  conclusion 
of  the  testimony  and  before  the 
party  has  been  cross-examined.  Be 
Wehulman,  C.  C.  A.,  177  Fed.  191. 

10  Se  Steiner,  195  Fed.  299. 

11  Doniphan  v.  Lehman,  179  Fed. 
178. 

12  Jones  V.  U.  S.,  C.  C.  A.,  209 
Fed.  585. 

13i?e  Cantor,  D.  C,  S.  D.  N.  Y. 
215  Fed.  61,  63,  per  Learned  Hand, 
J. :    "  There  is  an  especially  proper 
reason  for  this,  because  in  the  case 
of  alleged  perjury  so  much  depends 
upon    the    witness'    bearing.      "When 
his  words  appear  in  print,  it  is  some- 
times possible  to  see  that  he  is  either 
evasive,  or  a  downright  perjurer,  but 
generally  it  is  extremely  difficult  to 
tell.     This  is  especially  true   in  the 
case   of  men  of  small  education,  to 
whom  English  is  not  a  native  tongue. 
Again    and    again    such    men    within 
two    consecutive    sentences   give   the 
most    contradictory    answers.      It   is 
quite   clear   that  .they   cannot   mean 
this  deliberately,  but  that  they  have 
not    understood.      In    criminal    con- 
tempts the  accused  has  all  the  sub- 
stantive    benefits     of    one    indicted 
(Gompers   v.   Bucks  Stove  &  Range 
Co.,  221  U.  S.  418.  444,  31   Sup.  Ct. 
492,    55    L.    ed.    797,    34    L.    R.    A. 


[N.   S.]    874),  among  them   that   of 
the    degree    of    proof    and    without 
some  certificate  of  the  <'omniissioner 
I  certainly  cannot  say  on  this  record 
that  beyond  a  reasonable  doubt  this 
man   was   deliberately    blocking    the 
course   of  the  proceeding  by   swear- 
ing to  what  he  knew  was  false.     The 
power    undoubtedly    exists,    but    it 
ought  to  be  used  very  circumspectly. 
By    that,    I    do    not    mean    that    it 
ought      to      be      surrounded      with 
absurd       technicality      which       will 
destroy      its      value,      but      I      do 
mean    that    all    reasonable    explana- 
tions   should    be    made.     A    judge 
ought  not  to  commit  a  man  for  con- 
tempt for  perjury  except  in  so  plain 
a  case  as  makes  further  attempt  to 
examine  the  witness  a  farce,  so  ob- 
viously   that    no    observer,    who    was 
present,  could  doubt  that  the  witness 
was  obviously  trifling  with  the  pro- 
ceeding.     He    ought    not    to    judge 
upon    the    balance    of    jiroof    intro- 
duced to  contradict  the  witness  and 
so  turn  the  examination  into  a  trial 
of  perjury,  for  this  trenches  on  the 
criminal  law  itself.     And,  while  the 
line  cannot  be  abstractly  stated  with 
success,  it  can  be  so  administered,  if 
the   judges   will   remember  the   pur- 
pose  which   it   answers,   and   loyally 
accept  the  limitations  which  the  de- 
fendant's    right     to     a     jury     trial 
throws  upon  them."    Aff 'd  C.  C.  A., 
216  Fed.  61. 


2114 


ENFORCEMENT   OF   DECREES  AND  ORDERS 


[§428c 


An  attorney  was  disbarred  for  perjury  in  the  court  irrespec- 
tive of  the  immateriality  of  the  false  testimony,  although  he  had 
not  been  convicted  in  a  criminal  prosecution.^* 

§  428c.  Contempts  in  disobedience  to  orders  by  persons  not 
parties.  By  the  Clayton  Act  an  order  or  injunction  "shall  be 
binding  only  upon  the  parties  to  the  suit,  their  officers,  agents, 
servants,  employees,  and  attorneys,  or  those  in  active  concert  or 
participating  with  them,  and  who  shall,  by  personal  service  or 
otherwise,  have  received  actual  notice  of  the  same. ' '  ^ 

A  person  not  a  party  to  the  suit  who  assists  a  party  in  violat- 
ing an  injunction  may  be  punished  for  a  contempt.^ 

Incitement,  whether  directly  or  by  insinuation,  to  the  violation 
of  an  injunction  is  a  contempt.^ 

A  person  not  a  party  to  the  suit  may  be  punished  for  a  viola- 
tion of  an  injunction  against  a  corporation  when  he  is  a  con- 
trolling member  thereof  and  controlled  part  of  the  litigation  for 
the  defense.*  Officers  of  a  corporation,  who  are  not  parties  to  the 
suit,  may  be  punished  for  contempt  in  refusing  to  make  the  com- 
pany comply  with  an  order  of  the  court,  when  they  have  the 
power  to  require  such  compliance.^ 

It  has  been  said  that  the  directing  officers  of  a  labor  union 
whose  members  have  been  enjoined  from  intimidation  may  be 


14  £e  Ulmer,  208  Fed.  461. 
§428e.     138    St.    at    L.    788,    eh. 
328,    §19;    Comp.    St.    §  1243c. 

2  Ex  parte  Lennon,  64  Ted.  320; 
s.  c,  166  U.  S.  548,  41  L.  ed.  1110; 
Employers '  Teaming  Co.  v.  Team- 
sters'  Joint  Council,  141  Fed.  679; 
Allis-Chalmers  Co.  v.  Iron  Holders ' 
Union,  150  Fed.  155,  185. 

3  Stewart  v.  U.  S.,  C.  C.  A.,  236 
Fed.  838,  see  also  U.  S.  v.  Weber, 
C.  C.  A.,  114  Fed.  950;  U.  S.  v. 
Haggerty,  C.  .C.  A.,  116  Fed.  510; 
r.  S.  V.  Gehr,  C.  C.  A.,  116  Fed.  520. 
See  also  U.  S.  v.  Colo.,  216  Fed. 
654;  Cisco  v.  Looper,  C.  C.  A.,  236 
Fed.  336.  In  Stewart 's  case,  supra, 
' '  There  was  evidence  that  Stewart 
stated  that  all  of  the  men  who 
wanted  guns  could  get  them;  that 
there     would    be    another    Colorado 


trouble,  and  that  rather  than  see 
the  mines  work  open  shop  he  would 
go  out  and  die  himself;  that  he  and 
his  associates  did  not  aim  to  let  the 
mine  be  operated  with  non-union  la- 
bor ;  that  the  union  men  would  pre- 
vent it.  Upon  being  reminded  that 
the  court  had  granted  an  injunction, 
Stewart  said : 

' '  '  Damn  the  injunction !  The 
national  government  is  against  us, 
but  the  people  are  with  us,  and  we 
don't  aim  to  let  them  dig  coal.'  " 

4Stahl  V.  Ertel,  62  Fed.  920; 
American  Const.  Co.  v.  Jacksonville, 
T.  &  K.  Ry.  Co.,  52  Fed.  937; 
Heinze  v.  Butte  &  B.  Consol.  Min. 
Co.,  C.  C.  A.,  129  Fed.  274. 

6  Heinze  v.  Butte  &  B.  Consol. 
Min.  Co.,  C.  C.  A.,  129  Fed.  274. 


§  428c  J  DISOUKDIENCK    BY   PKRSONS   NO'l'    I'NfniKS  2115 

punished  for  contempt  if  they  refrain  from  using:  so  far  as  good 
faith  would  suggest  the  means  they  possess  for  preventing  such 
acts.  The  court  said:  "The  rational  rule  prevails  that  a  laboi- 
organization,  or  its  officers,  or  a  committee  which  selects  members 
to  act  as  pickets  during  a  strike  may  become  responsible  for  the 
unlawful  acts  of  such  pickets  or  their  violation  of  an  injunction, 
although  they  were  instructed  in  good  faith  to  observe  the  injunc- 
tion and  do  no  unlawful  act,  where,  with  knowledge  that  the  in- 
structions have  been  disobeyed  by  particular  persons,  such  per- 
sons are  still  kept  in  service.  The  directing  officers  of  a  union, 
whose  members  are  on  a  strike  and  have  been  enjoined  from  in- 
timidation, will  themselves  be  deemed  guilty  of  a  violation  of  the 
injunction  if  they  do  not  prevent  (if  they  reasonably  can  do  so) 
its  violation  by  those  under  their  control,  or  if  they  countenance 
acts  of  intimidation  and  refrain  from  using,  so  far  as  good  faith 
would  suggest,  the  means  which  they  possess  of  preventing  such 

acts.  "6 

An  officer  of  a  corporation  may  l)e  punished  for  contempt 
because,  after  the  issue  of  an  injunction  against  his  company, 
he  continued  the  infringement  under  another  name,  although  he 
had  resigned  his  office.''' 

An  employee  of  the  defendant  is  not  guilty  of  contempt  for 
committing  an  act  forbidden  by  a  decree  or  order  to  the  de- 
fendant and  his  employees  when  he  has  subse(iuently  severed  his 
connection,  with  the  latter  and  is  acting  for  himself  at  the  time 
of  such  commission.^ 

It  has  been  said  that,  to  bind  a  stranger  to  the  suit,  lull  knowl- 
edge of  the  scope  and  effect  of  the  injunction  must  be  shown.* 
In  one  case,  where  the  court  had  enjoined  the  defendants  to 
the  suit,  "and  all  persons  whomsoever,"  from  a  wilful  trespass 
upon  private  property;  it  was  held  that  a  stranger  to  the  suit, 
who  was  in  no  way  connected  with  any  of  Ihe  parties  thereto, 

6  Phillips  Sheet  &  Tin  Plate  Co.  v.  Fed.  117.     But  see  E.  W.  Bliss  Co. 

Ainalgamated    Ass'n    of   Iron,   Steel  v.    Atlantic    Handle    Co.,    212    Ved. 

&   Tin   Workers,   208   Fed.   335,  338,  190. 

per  Slater    J.  8  Donaldson    v.    Boksanient    Stone 

7Janney     v.     Paneoast     Interna-  Co.,   178  Fed.  1(I3. 

tional  Ventilator  Co.,  124  Fed.  972;  9  W.  B.  Conkey  Co.  v.  Russell,  111 

Campbell   v.   Magnet   Light  Co.,   175  Fed.  417,  422. 


2116 


ENFORCEMENT   OF   DECREES  AND   ORDERS 


[§428d 


might  be  punished  for  contempt  for  committing  an  independent 
trespass  when  he  had  knowledge  of  the  decree.^" 

§  428d.  Notice  of  a  decree  before  punishment  for  its  violation. 

No  person  can  be  punished  for  contempt  by  a  violation  of  an 
order  or  decree,  unless  he  has  knowledge  or  notice  thereof.^  A 
party  who  has  actual  knowledge  of  the  issue  of  an  injunction  ^ 
or  of  decision,  oral  or  written,  granting  an  injunction  ^  may  be 
punished  for  disobedience  thereto,  although  he  has  not  been 
served  with  a  copy  thereof. 

"Neither  the  noting  of  an  order  in  the  Equity  Docket  nor 
its  entry  in  the  Order  Book  shall  of  itself  be  deemed  notice  to 
the  parties  or  their  solicitors ;  and  when  an  order  is  made  without 
prior  notice  to,  and  in  the  absence  of,  a  party,  the  clerk,  unless 
otherwise  directed  by  the  court  or  judge,  shall  forthwith  send 
a  copy  thereof,  by  mail,  to  such  party  or  his  solicitor  and  a  note 
of  such  mailing  shall  be  made  in  the  Equity  Docket,  which  shall 
be  taken  as  sufficient  proof  of  due  notice  of  the  order. ' '  * 

The  publication  and  posting  of  the  injunction  is  not  conclusive 
evidence  of  notice  to  a  person  not  a  party  to  the  suit  nor  a  mem- 
ber of  nor  employed  by  an  association  implicated  in  the  acts  en- 
joined when  he  denies  notice  under  oath.^ 

The  misspelling  of  a  defendant's  first  name  in  the  pleadings, 
decree  and  injunction  order,  will  not  relieve  him  from  liability 
for  contempt  for  a  violation  of  the  injunction,  where  he  was 
served  with  process  and  appeared,  and  he  could  not  have  been 
misled  as  to  the  person  intended.^ 

The  equity  rules  provide  that  if  a  decree  be  for  the  perform- 
ance of  a  specific  act,  other  than  the  payment  of  money,  it  must 
prescribe  the  time  within  which  the  act  shall  be  done,  "of  which 


10  Chisolm  v.  Gaines,  121  Fed.  397. 

But  see  supra,  §  295.  An  assault 
upon  a  servant  of  the  complainant 
while  he  is  in  the  custody  of  the 
police  after  his  arrest,  is  not  a  vio- 
lation of  an  injunction  forbidding 
interference  with  persons  in  the  con- 
duct of  the  complainant's  business. 
Garrigan  v.  U.  S.,  C.  C.  A.,  16:i 
Fed.  16. 

§  428d.     1  Garrigan  v.  U.  S.,  C.  C. 
A.,  163  Fed.  16. 


2  Ex  parte  Lennon,  64  Fed.  320; 
s.  c,  166  U.  S.  548,  41  L.  ed.  1110; 
Re  Krinsky,  112  Fed.  972 ;  Re  Wilk, 
155  Fed.  943;  Re  Kiee,  181  Fed.  217. 

3  Bartholomay  Brewery  Co.  v. 
Dennis  O'Brien,  220  N.  Y.  587. 

4  Equity   Eule  4. 

SGarigan  v.  U.  S.,  C.  C.  A.,  163 
Fed.  16;  Stewart  v.  U.  S.,  C.  C.  A., 
236  Fed.  826,  845. 

6  Aaron  v.  U.  S.,  C.  C.  A.,  155 
Fed.  833. 


§  429] 


COURTS  FOR  CONTEMPT  PROCEEDINGS 


2117 


the  defendant  shall  be  boinid  without  further  service  to  take 
notice;"  '  and  that,  "neither  the  noting  of  an  order  in  the  Equity 
Docket  nor  its  entry  in  the  order-book  is  in  itself  notice  thereof 
to  the  parties  to  the  suit.^ 

It  is,  however,  the  safer  j)raetiee  to  make  personal  service  of 
a  certified  copy  of  a  decree  or  order,  disobedience  to  which  it  is 
desired  to  jninish  by  an  attaclimciit.^  If  tiie  party  is  beyond 
the  district  service  by  registered  mail  and  upon  his  solicitor  or 
counsel  is  pro])er.^° 

§  429.  Courts  in  which  contempt  proceedings  should  be  in- 
stituted. The  contempt  proceedings  should  usually  be  insti- 
tuted in  the  court  against  which  the  contempt  was  committed.^ 
The  District  Courts  have  the  power  to  punish  contempts  com- 
mitted against  the  former  Circuit  Courts  ^  and  those  committed 
in  the  District  Courts  before  the  enactment  of  the  Judicial  Code.^ 

It  has  been  held  at  circuit  that  a  Hnited  States  commissioner 
has  IK)  ]K)wei'  to  punish  for  contempt,*  but  he  may,  without  a 
previous  order  of  the  court,  issue  a  w^arrant  of  arrest  upon  a 
complaint,  which  is  the  foundation  of  a  criminal  prosecution  for 
a  contempt  in  the  violation  of  an  injunction  by  a  person  not  a 
party  to  the  suit.* 

When  the  offense  is  committed  before  a  subordinate  judicial 
officer  it  will  rarely  be  punished  unless  he  certifies  to  its  com- 


mission. 


6 


Where   the   contempt    is   a    violation   of   a    supersedeas,    it    is 
punished  by  the  appellate  tribunal.'''    Where  a  mandate  from  an 


7Eq.  Rule  8. 

8Eq.  Rule  4. 

9  Atlantic  G.  P.  Co.  v.  Dittman  P. 
Mfg.  Co.,  9  Fed.  ."^16;  rimaii  v.  Rit- 
ter,  72  Fed.  1000;  Westiiighouse  Kl. 
&  Mfg.  Co.  V.  Sangamon  El.  Co.,  128 
Fed.  747. 

lOUlman  v.  Ritter,  72  Fed.  1000. 
See  Be  Cary,  10  Fed.  622;  supra, 
iS§165,  255. 

8  429.  1  Be  Spofford,  62  Fed. 
44H;  Merchants'  Stock  &  Grain  Co. 
V.  Board  of  Trade,  C.  C.  A.,  201  Fed. 
20,  27. 

2  Board  of  Trade  of  City  of  Chi- 
cago V.  Tucker,  221   Fed.  :U)0. 

Fed.  Prae.  Vol.  11— ti;; 


3  Morehouse  v.  Giant  I'owder  Co., 
C.  C.  A.,  206  Fed.  24. 

4^f  Mason,  4:5  Fed.  510;  Ex 
parte  Doll,  7  Phila.  595;  Ex  parte 
Perkins,  29  Fed.  900;  U.  S,  v.  Bea- 
vers, 125  Fed.  778. 

6  Castner  v.  Pocahontas  Collieries 
Co.,  117  Fed.  184. 

6  Be  Cantor,  C.  C.  A.,  215  Fed. 
()1,  quoted;    supra.   §  428b,   note    l:?. 

7  1'.  S.  V.  Shipp,  20;{  U.  S.  56:{. 
.")1  L.  ed.  ;U9;  Be  McKenzie,  180  U. 
S.  536,  45  L.  ed.  657;  Be  McKenzie, 
142  Fed.  .388;  Tornanses  v.  Melsing, 
C.  C.  A.,  106  Fed.  775. 


2118  ENFORCEMENT   OF   DECREES  AND   ORDERS  [§  429a 

appellate  court  directing  the  entry  of  a  decree  for  an  injunction 
has  been  filed  in  the  court  below,  the  latter,  and  not  the  former, 
has  jurisdiction  to  punish  its  violation  as  a  contempt.^ 

The  violation  of  an  injunction  to  restrain  the  infringement 
of  a  copyright,^  or  trade-mark, i°  may  be  punished  as  a  con- 
tempt by  any  court  or  judge  of  the  United  States  having  juris- 
diction of  the  defendants.  It  is  the  duty  of  the  clerk  of  the 
court  or  the  judge  that  grants  the  injunction,  whenever  required 
so  to  do  by  the  court  hearing  an  application  to  enforce  the  same, 
to  transmit  without  delay  thereto  a  certified  copy  of  all  the 
papers  in  the  cause  that  are  on  file  at  his  office."  .Disobedience 
to  a  subpoena,  issued  by  a  court  of  one  district,  ordering  a  wit- 
ness to  appear  and  testify  before  a  master  appointed  therein  by 
the  court  of  another  district,  is  punishable  by  the  court  whicli 
issued  the  subpoena. ^^ 

§429a.  Time  when  contempt  proceedings  should  be  insti- 
tuted. 

By  the  Clayton  Act  of  October  15,  1914,  "No  proceeding  of 
contempt  shall  be  instituted  against  any  person  unless  begun 
within  one  year  from  the  date  of  the  act  complained  of . "  ^ 
There  may  be  room  for  argument  as  to  the  application  of  this  sec- 
tion to  contempts  committed  in  the  presence  of  the  court  or  so 
near  thereto  as  to  obstruct  the  administration  of  justice  or  to 
contempts  committed  in  disobedience  of  a  decree  entered  in  any 
suit  in  the  name  of  the  United  States.^  If  not,  contempts  which 
are  criminal  offenses  and  are  committed  in  suits  by  or  on  behalf 
of  the  United  States  are  barred  by  the  three  year  statute  of  limi- 
tations.3  By  analogy  the  same  rule  would  probably  be  applied  to 
contempts  committed  in  the  presence  of  the  court  or  so  near 
thereto  as  to  obstruct  the  administration  of  justice.* 

8  Dowagiac  Mfg.  Co.  v.  Minnesota  St.  at  L.  1075,  §  37,  Pierce  's  Fed. 
Moline  Plow  Co.,  124  Fed.  736.  Code  Supp.  §  1589. 

9  Act  of  Mar.  4,  1909,  35  St.  at  ^^  He  Allis,  44  Fed.  216;  supra, 
L.    1075,    §  36.      Pierce    Fed.    Code  §  343. 

Supp.  §1589;   supra,  §278.  §  429a.     138  St.   at  L.  740,  §25; 

10  Act  of  Mar.  2,  1907,  34  St.  at       Comp.  St.  §  1245e. 

L.    1251,    §20,   Pierce's   Fed.   Code,  2  Ibid,    §24;    Comp.   St.,    §  1245d. 

§8826.  8U.  S.  R.  S.,  §1044;   Gompers  v. 

11  Act  of  March  2,  1907,  34  St.  at  U.  S.,  233  U.  S.  604;  supra,  §  ISOn. 
L.  1251,  §20,  Pierce's  Fed.  Code,  4  Gompers  v.  U.  S.,  233  U.  S.  604, 
§8826;    Act   of   March   4,   1909,   35  612. 


s 


430]  CIVIL  AND  CHIMINAI.  COXTEiMl'TS  DISTINGUISHED  2119 


It  has  been  said  tliat  no  lai)se  of  time  since  the  entry  of  a  de- 
cree will  prevent  contenijjt  proceedings  to  punish  a  violation 
thereof,  committed  within  the  statutory  period  of  limitations;^ 
hut  it  was  then  lield  that  an  injunction  restraining  the  defendants 
and  all  other  persons  associated  or  connected  with  them  from  in- 
terfering with  the  complainant's  business  by  intimidation  of  its 
employees  or  otherwise  which  was  granted  during  a  strike  in 
1907  did  not  justify  the  punishment  of  persons  not  parties  to 
such  suit  from  such  action  during  a  strike  declared  against  the 
same  complainant  in  1917  although  both  strikes  were  instigated 
by  the  same  trade  union  for  the  purpose  of  unionizing  the  busi- 
ness.^ 

Pending  an  appeal  accompanied  by  a  supersedeas  the  trial 
court  is  without  jurisdiction  to  entertain  contempt  i)roceedings 
to  punish  disobedience  to  the  decree  from  which  the  appeal  was 
taken."' 

A  court  has  no  jurisdiction  to  punish  for  contempt  an  act  not 
forbidden  at  the  time  of  its  commission;  nor  can  it  accomplish 
such  a  result  by  the  entry  of  an  order  rmnc  pro  tunc  as  of  a  date 
prior  to  the  commission  of  the  act,^  except  in  a  case  where  the 
judge  has  announced  orally  from  the  bench  a  decision  that  an 
injunction  issue,  when  the  order  may  be  entered  as  of  the  date 
of  such  decision,  and  a  subsequent  act  may  be  punished  accord- 
ingly, even  if  committed  before  the  formal  entry  of  the  order.^ 

Where  a  person  was  under  bail  to  appear  and  answer  indict- 
ments in  the  State  courts  for  the  embezzlement  of  money ;  it  was 
held  that,  until  such  indictments  were  disposed  of,  there  should 
be  no  hearing  upon  an  application  to  commit  him  for  contempt 
in  failing  to  obey  an  order  to  pay  over  the  same  to  a  trustee  in 
bankruptcy.^*' 

§  430.  Distinction  betw^een  criminal  and  civil  contempts. 

Summary  proceedings  to  punish  for  a  contempt  of  court  may 

6  Tosh  V.  West  Kentucky  CVal  Co.,  9  Ibid.;    Kinii)toii   v.   Eve,   2   Ves. 

C.  C.  A.,  262  Fed.  44,  46,  48.  &  B.  349;  Anon.,  3  Atk.  567;  James 

6  Tosh  V.  "West  Kentiu-ky  Coal  Co.,  v.  Downs,  18  Ves.  522;  Vansandau 
C.  C.  A.,  262  Fed.  44,  50.  v.  Rose,  2  Jac.  &  W.  264 ;  Koehler  v. 

7  Smith  V.  Government  of  Canal  Farmers'  &  D.  Xat.  Bank,  6  N.  Y. 
Zone,  C.  C.  A.,  249  Fed.  272.  Supp.  470. 

iEx  parte  Buskirk,  C.   C.   A.,   72  10  7?c    Hooks    Smelting    Co.,    146 

Fed.   14.  Fed.  336. 


2120 


ENFORCEMENT  OF  DECREES  AND  ORDERS 


[§430 


be  either  civil  or  criminal. ^  The  cases  in  which  civil  and  criminal 
proceedings  may  be  prosecuted  are  often  classified  under  the 
description  of  civil  and  criminal  contempts.^  In  civil  contempt 
proceedings  the  punishment  is  remedial  for  the  benefit  of  the 
complainant.^  In  those  which  are  criminal  in  their  nature,  the 
sentence  is  punitive  to  vindicate  the  authority  of  the  court.*  The 
line  of  demarcation  between  these  two  classes  is  not  clearly 
defined.  When  the  offense  consists  in  misbehavior  in  the  pres- 
ence of  the  court  or  so  near  thereto  as  to  obstruct  the  admin- 
istration of  justice,^  it  is  usually  punishable  only  by  criminal 
contempt  proceedings.^ 

In  many  cases  of  disobedience  to  an  order  the  party  may  be 
punished  either  civilly  or  criminally  therefor.''  "It  may  not  be 
always  easy  to  classify  a  particular  act  as  belonging  to  either  one 
of  these  two  classes.  It  may  partake  of  the  characteristics  of 
both.  "8 

When  the  contempt  was  committed  by  a  person  not  a  party 
nor  in  privity  with  a  party  to  the  original  suit,  the  proceedings 
should  ordinarily  be  criminal  in  their  nature.^  Such  has  been 
said  to  be  disobedience  to  a  subpoena  ad  testificandum}^  But 
disobedience  to  an  order  for  the  production  of  books  and  pa- 


§  430.  1  Gompers  v.  Bucks  Stove 
&  Eange  Co.,  221  U.  S.  418,  .5.5  L. 
ed.  797,  .34  L.  R.  A.  (N.  S.)  874. 
Where  the  act  is  one  that  evinces  a 
deliberate  purpose  to  contemn  the 
authority  of  the  court,  it  may  be 
jumished  as  a  criminal  contempt. 
Be  Rice,  181  Fed.  217.  See  Clay  v. 
Watei-s,  C.  C.  A.,  178  Fed.  385,  21 
Ann.  Cas.  897. 

2  Gompers  v.  Bucks  Stove  &  Range 
Co.,  221  U.  S.  418,  55  L.  ed.  797,  34 
L.  R.  A.   (N.  S.)    874. 

3  Ibid.  221  U.  S.  418,  441,  55  L. 
ed.  797,  805,  34  L.  R.  A.  (N.  S.) 
874.  But  see  Puget  Sound  Traction, 
Light  &  Power  Co.  v.  Lawrey,  202 
Fed.  263. 

4  Ibid. 

6  Supra,  §  428. 

6  Bessette  v.  W.  B.  Conkey  Co., 
194  U.  S.  324,  330. 


7  Gompers  v.  Bucks  Stove  &  Range 
Co.,  221  U.  S.  418,  55  L.  ed.  797,  34 
L.  R.  A.  (N.  S.)  874. 

8  Bessette  v.  W.  B.  Conkey,  194 
V.  S.  324,  329,  24  Sup.  Ct.  665,  48 
L.  ed.  997.  For  an  illustration  of 
the  distinction,  see  Be  Newman,  C. 
C.  A.,  214  Fed.  69. 

9  Ex  parte  Lennon,  166  U.  S.  548, 
17  Sup.  Ct.  658,  41  L.  ed.  1110;  Bes- 
sette v.  W.  B.  Conkey  Co.,  194  U.  S. 
324,  24  Sup.  Ct.  665,  48  L.  ed.  997 ; 
Garrigan  v.  U.  S.,  C.  C.  A.,  23  L.  R. 
A.  (N.  S.)  1295,  163  Fed.  16;  Puget 
Sound  Traction,  Light  &  Power  Co. 
v.  Lawrey,  202  Fed.  263. 

10  Bessette  v.  W.  B.  Conkey  Co., 
194  U.  S.  324,  330.  But  see  Be 
Farkas,  204  Fed.  343. 


§  430]        CIVIL  AND   CRIMINAL   CONTEMPTS    DISTINGUISHED  2121 

pers  ^^  or  an  order  directing  a  witness,  who  has  attended  to 
answer  a  question  ^^  in  a  civil  suit,  may  be  treated  as  a  civil  con- 
tempt. Disobedience  to  an  order  to  produce  papers  or  to  answer 
questions  before  a  gi*and  jury  or  in  a  criminal  prosecution,  is  an 
offense  against  the  Government  and  should  be  punished  by  crim- 
inal contempt  proceedings.^^ 

When  the  disobedience  to  an  injunction  is  an  act  of  violence 
amounting  to  a  breach  of  the  peace,  proceedings  to  punish  its 
violation  should  be  of  a  criminal  nature.^*  This  was  also  held 
where  the  injunction  regulated  the  transaction  of  business  by  a 
railroad  company.^^  Otherwise  disobedience  to  an  order  of  the 
court,  which  does  not  direct  the  payment  of  money  to  the  Gov- 
ernment,^^ is  usually  punished  by  civil  contempt  proceedings." 

Proceedings  to  punish  the  violation  of  an  injunction  against 
the  infringement  of  a  patent,  copyright,  or  trade-mark,  are  usu- 
ally civil  and  remedial.^®  But  in  patent  cases  it  was  formerly 
the  usual  custom  ^®  and  it  seems  is  still  permissible  to  consoli- 
date criminal  with  civil  proceedings  and  to  divide  the  fine  be- 
tween the  government  and  the  injured  part3\2*'     This  was  also 


11  Doyle  V.  London  Guaranty  & 
Accident  Co.,  204  U.  S.  509. 

12  Hultberg  v.  Anderson,  C.  C.  A., 
214  Fed.  349. 

18  Gill  V.  U.  S.,  C.  C.  A.,  202  Fed. 
502. 

14  Puget  Sound  Traction,  Light 
&  Power  Co.  v.  Lawry,  202  Fed. 
263;  Phillips  S.  &  T.  Co.  v.  Amal- 
gamated Ass'n,  208  Fed.  335;  U.  S. 
V.  Colo.,  216  Fed.  654. 

16  U.  S.  ex  rel.  D.  &  N.  O.  Ey.  v. 
Atchison  T.  &  S.  F.  Ry.  Co.,  16 
Fed.  853. 

16  Matter  of  Christensen  Engi- 
neering Co.,  194  U.  S.  458,  24  Sup. 
Ct.  729,  48  L.  ed.  1072. 

17  Bessette  v.  W.  B.  Conkey  Co., 
194  U.  S.  324,  329. 

18  Hayes  v.  Fischer,  102  U.  S. 
121;  New  Jersey  Patent  v.  Martin, 
186  Fed.  513;  Searls  v.  Worden,  13 
Fed.  716;  Re  Mullee,  7  Blatchf.  23; 
Doubleday    v.    Sherman,    8    Blatchf. 


45 ;  Schillinger  v.  Gunther,  15 
Blatchf.  303;  Re  North  Bloomfield 
Gravel  Mining  Co.,  27  Fed.  795; 
Macaulay  v.  White  Sewing  Machine 
Co.  V.  Am.  Strawboard,  75  Fed. 
972 ;  Ready  Roofing  Co.  v.  Taylor, 
15  Blatchf.  94;  Stahl  v.  Etrel,  62 
Fed.  920;  Fischer  v.  Hayes,  7  Fed. 
96;  Economist  Furnace  Co.  v. 
Wrought-Iron  Range  Co.,  86  Fed. 
1010. 

19  Hendryx  v.  Fitzpatrick,  19  Fed. 
810. 

20  Gary  Mfg.  Co.  v.  Acme  Flex- 
ible Clasp  Co.,  187  U.  S.  427,  23 
Sup.  Ct.  211,  47  L  ed.  244;  s.  c. 
108  Fed.  873;  Matter  of  Christensen 
Engineering  Co.,  194  U.  S.  458,  24 
Sup.  Ct.  729,  48  L.  ed.  1072;  Chris- 
tensen Engineering  Co.  v.  Westing- 
house  Air  Brake  Co.,  135  Fed.  774; 
Sabin  V.  Fogarty,  70  Fed.  482;  Chi- 
cago Directory  Co.  v.  V.  S.  Directorj' 


2122 


ENFORCEMENT   OF  DECREES  AND  ORDERS 


[§  430 


done  where  an  injunction  of  another  character  was  violated.^i 
"A  significant  and  generally  determining  feature"  of  a  civil 
contempt ' '  is  that  the  act  is  by  one  party  to  a  suit  in  disobedience 
of  a  special  order  made  in  behalf  of  the  other. ' '  22 

Ordinarily  an  order  directing  the  payment  of  money  is  en- 
forced only  by  civil  contempt  proceedings.^^ 

The  bankruptcy  law  gives  to  the  bankruptcy  courts  express 
power  to  "enforce  obedience  by  bankrupts,  officers  and  other 
persons  to  all  unlawful  orders  by  fine  or  imprisonment  or  fine 
and  imprisonment."  2*  This  would  seem  to  make  a  refusal  to 
pay  money  to  a  trustee  or  receiver  in  bankruptcy  punishable  in 
criminal  proceedings.^^ 

The  court,  to  vindicate  its  authority  may  punish  as  for  a 
criminal  contempt  a  bankrupt  who  has  it  in  his  power  to  obey 
but  wilfully  disobeys  its  order  to  pay  over  money  to  the  receiver 
or  trustee,  or  who  after  the  institution  of  proceedings  to  compel 
such  payment  has  wilfully  disabled  himself  from  compliance.2« 
Civil  proceedings  may  also  be  instituted  to  compel  such  a  pay- 
men  t.^''^ 

In  determining  whether  contempt  proceedings  which  have 
been  instituted  are  civil  or  criminal  in  their  nature,  an  examina- 
tion should  be  made  of  the  title,  the  prayer  of  the  party  who 
initiated  the  proceedings  and  the  punishment  if  any  which  has 
been  imposed.  If  the  title  is  in  a  suit  previously  pending,28  or  if 
the  prayer  for  relief  is  for  the  imposition  of  a  fine  payable  to  a 


Co.,  123   Yed.  194;   Continental  Gin 
Co.  V.  Murray  Co.,  162  Fed.  873. 

21  Be  Merchants'  Stock  &  Grain 
Co.,  223  U.  S.  641,  32  Sup.  Ct.  339, 
56  L.  ed.  584.  But  see  Board  of 
Trade  of  City  of  Chicago  v.  Tucker, 
C.  C.  A.,  221  Fed.  300. 

22  Bessette  v.  W.  B.  Conkey  Co., 
194  U.  S.  324,  329. 

23  Ee  Nevitt,  C.  C.  A.,  117  Fed. 
448,  453,  approved;  Bessette  v.  W. 
B.  Conkey,  194  U.  S.  324,  328,  24 
Sup.  Ct.  665,  666. 

24  Act  of  July  1,  1898,  30  St.  at 
L.  544,  §  2,  subd.  13. 

26  Be  Cole,  C.  C.  A.,  1st  Ct.,   163 


Fed.  180,  182.     But  see  Be  Kahn,  C. 
C.  A.,  204  Fed.  581. 

26  Freed  v.  Central  Tr.  Co.,  C.  C. 
A.,  7th  Ct.,  215  Fed.  873,  876;  Be 
Stern,  D.  N.  J.,  215  Fed.  979,  981. 

27  Freed  v.  Central  Tr.  Co.,  C.  C. 
A.,  7th  Ct.,  215  Fed.  873,  876; 
Stern,  D.  N.  J.,  215  Fed.  979,  981. 

28  Gompers  v.  Bucks  Stove  & 
Range  Co.,  221  U.  S.  418,  446,  31 
Sup.  Ct.  492,  55  L.  ed.  797,  34 
L.R.A.  N.S.,  874;  Mitchell  v.  Dex- 
ter, C.  C.  A.,  244  Fed.  926.  But 
see  Phillips  S.  &  T.  Co.  v.  Amalga- 
mated Ass'n,  208  Fed.  335,  343. 
Be  Kahn,  C.  C.  A.,  204  Fed.  581. 


43Ua]        PRACTICE   JN    CKl.MINAI.   (OXTK.M  I'T   PROCKEDIXfiS 


2123 


private  party  in  tlic  ;ilt(  I'lial'iNc^^  oi'  that  U\c  rcspoiKlciil  be  or- 
dered to  perform  some  aet  I'ur  tlie  benefit  of  such  a  party  or  else 
be  punished  for  contempt,^"  in  one  ease  where  the  petitioner 
prayed  punishment  for  contempt  and  that  petitioner  may  have 
such  other  and  further  relief  as  the  nature  of  its  case  maj'  re- 
(luire;^^  or  if  the  judgment  directs  the  payment  of  a  fine  to  a 
private  person,^^  or  impi-isonment  until  a  specified  act  for  the 
benefit  of  such  a  person  is  performed ;  ^^  the  proceedings  will  usu- 
ally be  considered  civil  in  their  nature.  If  the  title  is  in  the 
name  of  the  United  States,^*  or  the  prayer  is  merely  for  punish- 
ment for  contempt  of  court,^^  or  a  fine  is  imposed  payable  wholly 
or  in  i)art  to  the  Government,^^  or  an  imprisonment  for  a  speci- 
fied time  not  terminable  upon  the  performance  of  an  act  by  the 
respondent,^'''  the  proceeding  is  usuallj'  considered  to  be  criminal. 
Where  both  kinds  of  relief  are  sought  or  granted,  the  criminal 
element  dominates  the  proceeding.^s 

§  430a.  Practice  in  criminal  contempt  proceedings. 

Criminal   i)roceedings  to  punish   for  contempts  must  be  sep- 


:'A 


C.    A., 


U. 


s. 

G. 


29  Gompers  v.  Bucks  Stove  & 
Eange  Co.,  221  U.  S.  418,  449,  31 
Sup.  Ct.  492,  55  L.  cd.  797 
L.R.A.   (N.  S.)  874. 

30  Mitchell    v.    Dexter,    C. 
244  Fed.  926,  9:?0. 

31  Ibid. 
32Worden    v.    Searls,    121 

14,    25;    Cutting    v.    Van    Fleet, 
C.  A.,  252  Fed.  100. 

33  Hultberg  v.  Anderson,  C.  C.  A., 
214  Fed.  M9. 

34  Gompers  v.  Bucks  Stove  & 
Range  Co.,  221  U.  S.  418,  31  Sup. 
(Jt.  492,  55  L.  ed.  797,  34  L.R.A. 
N.S.  874;  Stewart  v.  U.  S.,  C.  C. 
A.,  236  Fed.  838. 

36  Gompers  v.  Bucks  Stove  & 
Range  Co.,  221  U.  S.  418,  31  Sup. 
Ct.  492,  55  L.  ed.  797,  34  L.R.A. 
(N.S.)  874;  Mitchell  v.  Dexter,  C. 
C.  A.,  244  Fed.  926,  930. 

36  Matter  of  Christeusen  Engi- 
neering Co.,  194  U.  S.  458,  24  Sup. 
a.    729,   48    L.   ed.    1072;    Ee   Mer- 


chants' Stock  &  Grain  Co.,  223  U. 
S.  641,  32  Sup.  Ct.  339,  56  L.  ed. 
584;  Creplik  v.  Couch  Patent  Co., 
C.  C.  A.,  190  Fed.  565,  571;  Phil- 
lips S.  &  T.  P.  Co.  V.  Amalgamated 
Ass'n,  208  Fed.  335,  341;  Shuler 
V.  Raton  Waterworks  Co.,  C.  C.  A., 
247  Fed.  634,  636. 

37  Gompers  v.  Bucks  Stove  & 
Range  Co.,  221  U.  S.  418,  442,  31 
Sup.  Ct.  492,  55  L.  ed.  797,  34 
L.R.A.  (N.S.)  874;  Doyle  v.  Loudon 
Guarantee  &  Accident  Co.,  204  U. 
S.  599;  Be  Kahn,  C.  C.  A.,  204 
Fed.  581. 

38  Matter  of  Chiristjensen  Engi- 
neering Co.,  194  U.  S.  458,  24  Sup. 
Ct.  729,  48  L.  ed.  1072;  Be  Mer- 
chants' Stock  &  Grain  Co.,  223  T'. 
S.  641,  32  Sup.  Ct.  339,  56  L.  ed. 
584;  Creplik  v.  Couch  Patent  Co., 
C.  C.  A.,  190  Fed.  565,  571;  Phil- 
lips S.  &  T.  P.  Co.  V.  Amalgamated 
Ass'n,  208  Fed.  335,  341. 


2124 


ENFORCEMENT   OF   DECREES  AND  ORDERS 


[§  430a 


arate  and  distinct  from  the  action  or  suit  in  which  the  contempt 
was  committed.^ 

The  practice  differs  in  different  classes  of  cases.  Criminal  pro- 
ceedings to  punish  contempt  committed  in  the  presence  of  the 
court  or  so  near  thereto  as  to  obstruct  the  administration  of 
justice  and  contempts  committed  in  disobedience  of  any  lawful 
orders,  decrees  or  commands  in  a  court  in  a  suit  or  action  brought 
or  prosecuted  in  the  name  of  or  on  behalf  of  the  United  States 
are  punished  in  conformity  to  the  usages  in  law  and  in  equity 
which  have  formerly  prevailed.^  Contempts  which  consist  of  the 
wilful  disobedience  to  any  other  lawful  order,  decree  or  command 
of  a  District  Court  of  the  United  States  and  which  would  other- 
wise be  a  criminal  offense  are  punished  in  accordance  with  pro- 
ceedings regulated  by  the  statute  described  in  the  following  sec- 
tion.^ 

It  is  the  proper  practice  not  to  entitle  such  proceedings  in 
the  original  suit  but  with  a  title  of  their  own  appropriate  to  indi- 
cate their  character  *  in  the  name  of  the  United  States  against 
the  person  charged  ^  or  in  the  name  of  the  United  States  in  the 
relation  of  the  complaining  party .^  Or  "in  re"  with  the  name 
of  the  accused  following.''' 

It  has  been  held,  however,  that  where  it  clearly  appears  that 
a  criminal  proceeding  has  been  instituted  and  an  objection  to 
the  title  is  not  made  before  or  at  the  trial  it  is  waived.* 

Unless  the  proceedings  are  instituted  by  the  court  of  its  own 
motion,  it  is  the  better  practice  to  begin  by  an  information  filed 
by  the  United  States  Attorney.^  This  is  the  practice  in  the  Sec- 
ond Circuit.^®  It  is  the  duty  of  the  attorney  of  the  United 
States  for  the  district  to  institute  the  proceedings  when  re- 
quested by  the  court  to  vindicate  the  authority  of  the  court.^^ 


\ 


§  430a.  1  Gompers  v.  Bucks  Stove 
&  Eange  Co.,  221  U.  S.  418,  55  L. 
ed.  797;  S.  Anargyros  v.  Anargyros 
&  Co.,   191  Fed.  208. 

8  38  St.  at  L.  739,  §24;  Comp. 
St.,   §1245d. 

3  Ibid,  infra,   §  430b. 

4  Fischer  v.  Hayes,  6  Fed.  63. 

6  Stewart  v.  U.  S.,  C.  C.  A.,  236 
Fed.  838. 

6  Fischer  v.  Hayes,  6  Fed.  63, 


7  Phillips  S.  &  T.  P.  Co.  V.  Amal- 
gamated Ass'n,  208  Fed.   335,   342. 

8  Ibid ;  see  U.  S.  v.  Toledo  News- 
paper Co.,  220  Fed.  458,  493. 

9  Be  Kahn,  C.  C.  A.,  204  Fed. 
581. 

10  Ibid. 

11  Durant  v.  Washington  County, 
4  Woolworth  297,  Fed.  Cas.  No. 
4,191.  See  38  St.  at  L.  739,  §  22, 
Comp.  St.,  1245b. 


§  430a]        PRACTICE   IN   CRIMINAL   CONTEMPT  PHOCLEDINUS  2125 

An}-  person,  as  amicus  curiae,  may  bring  a  criminal  contempt 
to  the  attention  of  the  court. ^^  The  court  may  institute  the  pro- 
ceedings of  its  own  motion."  It  has  been  said  that  when  the  con- 
tempt was  committed  in  the  presence  of  a  subordinate  judicial 
officer  such  as  a  special  commissioner  in  a  bankruptcy  proceed- 
ing the  proceedings  should  be  initiated  by  him.^* 

It  has  been  held,  that  in  the  case  of  a  violation  of  an  injunc- 
tion, the  civil  and  criminal  proceedings  can  be  combined ;  "  and 
said,  that  an  indictment  and  summary  criminal  proceedings  to 
punish  for  contempt  may  be  concurrent  and  that  a  judgment  in 
one  will  not  bar  the  other.^^  When  the  offenses  are  joint  or  con- 
nected all  who  commit  them  may  be  joined  in  the  same  proceed- 
ing.^^ Two  parties  to  a  proceeding  in  bankruptcy  were  punished 
upon  a  single  application  to  punish  them  for  contempt  in  several 
perjuries  therein  committed. ^^ 

The  information  may  be  sworn  to  upon  information  and  be- 
lief.^^  An  omission  to  verify  the  information  or  other  initial 
paper,  if  a  verification  be  necessary,  is  waived  by  a  failure  to 
object  thereto  before  the  trial.^o 

The  motion  papers  must  clearly  specify  the  acts  for  which 
punishment  is  sought,2i  although  the  nicety  and  precision  of  an 
indictment  are  not  required.22    The  act  which  is  judged  to  be  an 


12  Be  Star  Spring  Bed  Co.,  C.  C. 
A.,  203  Fed.  640 ;  Phillips  S.  &  T.  P. 
Co.  V.  Amalgamated  Ass'n,  208  Fed. 
335,  344;  Be  Cantor,  D.  C.  S.  D. 
N.  Y.,  215  Fed.  61,  63.  See  S.  C. 
in  C.  C.  A.,  Ibid. 

13  U.  S.  V.  Toledo  Newspaper  Co., 
220  Fed.  458,  afF'd  C.  C.  A.,  237 
Fed.  986,  afF'd  247  U.  S.  402. 

14i?f  Cantor,  D.  C,  215  Fed.  HI, 
63,  see  C.  C.  A.,  Ibid,  per  Learned 
Hand,  J. 

ISKreplik  v.  Couch  Patents  Co., 
C.  C.  A.,  190  Fed.  565,  citing  Be 
€hile«,  22  Wall.  157,  158,  22  L.  ed. 
819;  Hendryx  v.  Fitzpatrick,  19 
Fed.  810. 

16  Merchants'  S.  &  G.  Co.  v. 
Board  of  Trade,  C.  C.  A.,  201  Fed. 
20,  30;  United  States  v.  Colo.,  216 
Fed.  654. 


ITBe  Sobol,  C.  C.  A.,  242  Fed. 
487. 

IS  Be  Fellerman,  149  Fed.  244,  in 
which  the  writer  was  counsel. 

19  Creekniore  v.  U.  S.,  C.  C.  A., 
237  Fed.  743. 

20  Sona  V.  Aluminum  Castings  Co., 
C.  C.  A.,  214  Fed.  936;  Stuart  v. 
Reynolds,  C.  C.  A.,  204  Fed.  709. 

21  Philips  Sheet  &  Tin  Plate  Co. 
V.  Amalgamated  Ass'n  of  Steel, 
Iron  &  Tin  Workers,  208  Fed.  335, 
345;  Be  Cantor,  D.  C,  C.  C.  A.,  215 
Fed.  61,  63.  But  see  Stuart  v.  Reyn- 
olds, C.  C.  A.,  204  Fed.  709. 

22  S.  Anargyros  v.  Anargyros  & 
Co.,  191  Fed.  208;  Aaron  v.  U.  S.,  C. 
C.  A.,  15  Fed.  833. 


2126 


ENFORCEMENT   OF   DECREES  AND   ORDERS 


[§  430a 


offense  must  be  distinctly  specified. ^3  It  is  sufficient  if  the  of- 
fense is  set  forth  so  that  the  defendant  is  clearly  informed  of  the 
charge  against  him  and  whether  a  criminal  or  civil  contempt  is 
alleged.^*  An  omission  in  this  respect  is  jurisdictional  and  is 
not  waived  by  proceeding  to  trial  without  the  objection.^^  There 
can  be  no  punishment  for  a  contempt,  disclosed  in  the  evidence, 
which  was  not  charged  in  the  information,  order  to  show  cause, 
or  affidavits  before  the  hearing.^^  A  petition  for  violation  of  an 
injunction  against  strikers,  charged  to  have  been  committed  by 
a  person  not  a  party  to  the  suit,  is  insufficient  to  charge  him  with 
knowledge  of  the  injunction  when  it  alleges  in  the  alternative 
that  he  knew,  or  by  the  exercise  of  ordinary  intelligence  might 
have  known,  that  it  had  been  issued.^'  Allegations  that  the  acts 
of  which  complaint  is  made  have  interfered  with  the  complain- 
ant's exclusive  right  to  the  good  will  of  a  business,  to  his  irre- 
parable injury,  although  appropriate  to  a  civil  proceeding,  are 
inappropriate  in  a  proceeding  to  punish  for  a  criminal  con- 
tempt.2^  ^  petition  or  motion  for  the  attachment  of  a  defendant 
for  contempt  in  violating  an  injunction,  which  is  entitled  as  in 
the  original  suit,  and  refers  to  the  order  of  injunction  granted 
therein  by  its  date,  and  sets  out  in  detail  the  alleged  acts  of  vio- 
lation, is  sufficient.    It  need  not  set  out  the  order  in  terms.^® 


23  Ee  Cantor,  D.  C,  215  Fed.  61, 
63  per  Learned  Hand,  J.:  "Every 
judicial  proceeding  and  every  charge 
to  which  another  must  respond  just- 
ly requires  that  the  respondent 
should  know  with  reasonable  defini- 
tion what  he  has  to  answer.  It  will 
not  do,  as  in  this  case,  to  throw  at 
a  man  120  pages  of  testimony  and 
say  generally  that  it  is  generally 
permeated  with  perjury.  Some 
specification  the  most  elementary 
rules  of  fair  play  demand,  so  that 
he  may  explain  what  he  is  charged 
with,  and  so  that  the  judge  may 
know  on  what  the  moving  party 
relies.  Nor  is  it  any  answer  to 
say  that  the  absurd  precision  of  an 
old  indictment  at  common  law  is 
not  necessary;  which,  of  course,  it 
is   not.      The   requirement  is  practi- 


cal and  will  be  treated  practically, 
but  for  all  that  it  is  none  the  less 
real  and  necessary,  and  it  is  a  con- 
dition, so  far  as  I  know,  of  every 
kind  of  judicial  proceeding  in  every 
free  country."'  AflP'd,  C.  C.  A., 
Ibid. 

24  Schwartz  v.  United  States,  C. 
C    A.,  217  Fed.   866. 

25  Phillips  S.  &  T.  P.  Co.  V.  Amal- 
gamated Ass'n,  208   Fed.   3.35,  345. 

26  ^e  Reese,  C.  C.  A.,  107  Fed. 
942;  Huttig  Sash  &  Door  Co.  v. 
Fuelle,  14.3  Fed.  363,  374. 

27Garrigan  v.  U.  S.,  C.  C.  A.,  23 
L.R.A.    (N.S.)    1295,   163   Fed.   16. 

28  S.  Anargyros  v.  Anargyros  & 
Co.,  191  Fed.  208. 

29  Aaron  v.  U.  S.,  C.  C.  A.,  155 
Fed.  833. 


§  430a]        PRACTICE   IN    CRIMTXAL   CONTEMPT   PROCEEDINGS  2127 

The  petition  must  contain  a  prayer  tliat  the  person  charged 
be  punished  for  contempt  of  court.^°  An  omission  of  such  a 
prayer  is  a  jurisdictional  defect  which  is  not  waived  bj^  a  failure 
to  raise  the  same  before  or  at  the  trial.^^  It  was  so  held  where 
the  information  prayed  for  no  relief  except  an  attachment  of 
the  accused,  although  when  served  it  was  accompanied  by  an 
order  directing  them  to  show  cause  why  they  should  not  be  at- 
tached and  committed  for  violation  of  the  injunction.^^  --^^j^  ^^ 
relief  was  sought  save  their  attachment,  they  were  not  apprised 
that  their  punishment  was  the  object  in  view.  The  only  purpose 
an  attachment  could  serve  would  be  to  bring  the  parties  into 
court.  "^^  The  information  need  not  pray  any  specific  punish- 
ment either  fine  or  imprisonment.^* 

Objections  of  a  technical  character  to  the  information  or  other 
proceedings  will  not  be  considered  upon  the  writ  of  error  unless 
they  were  raised  below  by  assignment  of  eiror  or  otherwise.^^ 
Such  will  be  waived  where  the  accused  appears  and  goes  to  trial 
without  appropriate  objection.^^  A  failure  to  serve  the  informa- 
tion or  affidavit  upon  the  respondent  may  be  a  ground  for  an  ad- 
journment but  not  for  a  dismissal  of  the  proceeding. ^''^ 

Although  no  pleading  on  l)ehalf  of  the  respondent  is  necessary, 
it  is  the  safer  practice  for  him  to  set  forth  his  defense  in  an  affi- 
davit or  formal  answer,  in  such  a  way  that  the  issues  raised  mav 
be  clearly  shown.^* 

When  the  contempt  is  a  criminal  offense,  the  accused  may  be 
reached  under  criminal  process  by  an  order  for  his  removal, 
made  by  a  judge  in  any  district  where  he  may  be  found,  the 
proceedings  being  based  upon  the  writ  of  attachment,  issued  bj' 
the  court  of  the  district  where  the  offense  was  committed.'^ 

aOGompers     v.     Bucks     Stove     &  35  Gouts   v.   V.   S.,   O.    C.   A.,   249 

Range  Co.,  221  Fed.  418,  441,  448,  Fed.  595. 

;J1   Sup.  Ct.  498,   55   L.  cd.   797,  :54  36  Phillips    S.     &    T.     P.     Co.     v. 

L.R.A.    (N.S.)    874;    Phillips    v.    S.  Ainalgauiated   Ass'n,   208  Fed.   .335, 

&  T.  P.  Co.  V.  Amalgamated  Ass'n,  344,    citing    Foster's    Fed.    Pr.,   4th 

208  Fed.  335,  345.  od.,  p.  1095. 

31  Ibid.'  37  Sona  v.  Aluminum  Castings  Co., 

32  Phillips  S.  &  T.  P.  Co.  V.  Amal-  C;  C.  A.,  214  Fed.  936. 

gamated  Ass'n,  208  Fed.  335,  345.  38  He    Goodrich,    C.    C.     A.,     184 

33  Ibid.  Fed.  o. 

34  Creekmore   v.   U.   S.,   C.   C.    A.,  39  Be  Manning,  44  Fed.  275,  where 
!7  Fed.  74.'>,  747.  the  writer  was  counsel. 


o-i7 


2128 


ENFORCEMENT   OF   DECREES  AND  ORDERS 


[§430a 


A  person  arrested  in  criminal  proceedings  to  punish  for  a 
contempt  is  entitled  to  an  examination  before  a  magistrate,  if  so 
entitled  by  the  State  practice.***  When  the  contempt  is  commit- 
ted in  the  presence  of  the  court,  no  notice  nor  trial  of  any  dis- 
puted question  of  fact  is  necessary.*^  When  the  offense  consists 
in  an  insult  to  the  judge  he  has  the  power  to  inflict  punishment 
therefor,*^  Where  it  consists  in  publication  attacking  the  judge's 
conduct  or  in  a  letter  *^  unless  there  is  an  urgency  of  immediate 
action,  propriety  requires  that  it  should  be  heard  by  another 
judge  than  the  one  attacked.** 

"There  are  frequent  cases  where,  even  though  mistakenly,  a 
general  belief  may  easily  arise  that  there  is  a  personal  contro- 
versy between  the  contender  and  the  judge  of  the  court.  Even 
in  cases  of  this  class,  if  the  necessity  for  summary  action  or  if 
other  reasons  make  impracticable  the  substitution  of  another 
judge  to  hear  the  contempt  matter,  the  duty  of  the  regular  judge 
of  the  court  to  proceed  with  it  is  clear,  no  matter  how  embar- 
rassing this  duty  may  be  to  him ;  but,  in  these  cases,  if  there  is 
no  immediate  urgency,  and  if  no  other  reason  exists  making  it 
specially  appropriate  that  the  same  judge  act,  we  think  it  bj^  far 
the  better  policy  to  call  in  another  judge :  and  the  federal  sys- 
tem provides  special  facility  for  so  doing.  We  can  well  under- 
stand the  reluctance  with  which  a  District  Judge  would  put  him- 
self in  a  position  which  seemed  to  be  a  shifting  to  another  of 
this  sometimes  very  burdensome  and  very  delicate  duty;  but 
it  is  of  the  greatest  importance  that  contempt  proceedings  be 
put,  as  far  as  possible,  beyond  the  reach  of  even  unjust  adverse 
criticism."  *^ 


40i?e  Acker,  66  Fed.  290. 

41  Ex  parte  Terry,  128  U.  S.  289, 
32  L.  ed.  405;  He  Terry,  36  Fed. 
419. 

42  Toledo  Newspaper  Co.  v.  U.  S., 
C.  C.  A.,  220  Fed.  458,  492,  498; 
aff'd  247  U.  S.  402. 

48  U.  S.  V.  Hufe,  206  Fed.  700. 

44  Ibid.  This  was  the  practice 
pursued  by  one  of  the  judges  for 
the  Southern  District  of  Georgia  in 
U.  S.  V.  Huff,  206  Fed.   700. 

46  Toledo  Newspaper  Co.  v.  U.  S., 
237  Fed.  986,  988,  per  Dennison,  J. 


See  the  dissenting  opinion  of  Mr. 
Justice  Holmes,  in  s.  C,  247  U.  S. 
402,  424,  quoted  mpra,  §  428a. 
Notwithstanding  these  precedents, 
Mayer,  J.,  in  U.  S.  v.  Markewich, 
261  Fed.  537,  and  U.  S.  v.  Craig, 
N.  Y.  L.  J.,  1920,  tried  two  cases 
for  contempt  because  of  attack  upon 
himself  for  his  conduct  in  connec- 
tion with  the  receivership  of  the 
New  York  Street  Railroads.  Ac- 
cording to  the  newspapers,  in  U.  S. 
V.  Craig,  his  jurisdiction  to  do  this 
was  expressly  challenged. 


§  430a  J        PRACTICE    IN    CKI.MINAI.   COXTKMPT   !'KOCKEl)IN<;s  2121) 


It  would  seem  that  in  such  a  case  upon  the  filing  of  the  proper 
affidavit  the  part}-  accused  would  have  an  absolute  right  to  trial 
before  another  judge  although  no  attorney  seems  hitherto  to  have 
availed  himself  of  this  right.*^ 

The  omission  of  the  name  of  an  accused  from  an  order  placing 
the  case  upon  the  criminal  docket  does  not  invalidate  the  pro- 
ceedings when  no  ol)jecti()n  thereto  was  taken  before  the  trial.*''' 

The  old  docti'ine,  that  where  an  attachment  had  been  issued  a 
person  charged  with  contempt  might  demand  that  interrogato- 
ries be  filed  concerning  the  facts  which  were  the  basis  of  the 
charge  and  that  if  he  denied  them  under  oath  he  could  not  be 
punished  for  contempt,  the  only  remedy  being  an  indictment 
against  him  for  perjury,*^  has  been  abrogated.*^  except,  perhaps, 
when  the  decision  depends  upon  the  intent  of  an  ambiguous  act.^" 
It  seems  that  this  was  never  the  rule  in  equity. ^^  Where  it  is  a 
doubtful  question  of  law  whether  the  acts,  of  which  complaint 
is  made,  constitute  a  violation  of  the  injunction,  a  motion  to 
punish  the  same  for  contempt  will  be  denied.  The  court  will 
not  try  in  such  a  proceeding  a  difficult  question  as  to  the  in- 
fringement of  a  patent.^^ 

When,  at  the  argument  of  the  motion  for  an  attachment,  the 


46Ju(l.  Code,  §21;  ;',6  St.  at  L. 
1087;   supia,  §372. 

47Scoric  V.  V.  S.,  C.  C.  A.,  217 
Ff<l.  871. 

48  U.  S.  V.  Dodge,  2  Gall.  :n:?; 
Hollingsworth  v.  Duaiie,  Wall.  C.  C. 
77.  See  U.  S.  v.  Duane,  Wall.  C. 
C.  103. 

49  Savin,  Petitioner,  131  XI.  S. 
267,  33  L.  ed.  laO;  U.  S.  v.  Shipj), 
203  U.  S.  563,  51  L.  ed.  319,  8  Ann. 
Cas.  265;  U.  S.  v.  Carroll,  147  Fed. 
947,  951;  Swepston  v.  U.  S.,  C.  C. 
A.,  251  Fed.  205;  Gates  v.  U.  S., 
C.  C.  A.,  233  Fed.  201;  Kirk  v.  U. 
S.,  C.  C.  A.,  192  Fed.  273;  U.  S. 
V.  Huff,  206  Fed.  700;  U.  S.  v.  Car- 
roll, 147  Fed.  947,  951.  See  Ex 
parte  MeCown,  139  N.  C.  95;  51 
S.  E.  957,  2  L.R.A.  (N.S.)  603; 
Ex  parte  Summers,  27  N.  C.  169. 

60  U.  S.  V.  Shipp,   203  U.   S.  563, 


574,  51   L.  ed.  319,  324,  8  Ann.  Cas. 
265. 

51 U.    S.    V.    Anon.,    11    Fed.    701. 
See  U.  S.    V.  Debs,  64  Fed.  724. 

52  California  Paving  Co.  v.  Moli- 
tor,  113  U.  S.  609,  618,  28  L.  ed. 
1106,  1109;  Liddle  v.  Cory,  7 
Blatchf.  1 ;  Welling  v.  Trimming 
Co.,  2  Ban.  &  A.  1 ;  Buerk  v.  Im- 
haeuser,  2  Ban.  &  A.  465;  Fed. 
Cas.  No.  2,108;  Onderdonk  v.  Fan- 
ning, 2  Fed.  568;  Smith  v.  Halk 
yard,  19  Fed.  602;  Wirt  v.  Brown. 
30  Fed.  187;  Temple  Pump  Co.  v. 
Gas  P.  &  R.  B.  Mfg.  Co.,  31  Fed. 
292;  Howard  v.  Mast,  33  VeA. 
867;  Lilientiial  v.  Wallaeli.  :!7 
Fed.  241  ;  Pa.  Diamond  ('o.  v. 
Simpson,  39  Fed.  284;  Truax 
V.  Detweiler,  46  Fe<l.  117,  118;  En- 
terprise Mfg.  Co.  V.  Sargent.  48 
Fed.    453;    Mai'k    v.    Levy.    49    Fe.i. 


2130 


ENFORCEMENT   OF   DECREES  AND   ORDERS 


[§480a 


party  accused  of  disobedience  denies  the  charge,  the  practice  has 
been  for  the  court  either  to  determine  the  disputed  questions  of 
fact  upon  such  affidavits  as  were  then  presented  or  to  refer 
them.  53  Whether  the  Sixth  Amendment  applies  to  a  proceed- 
ing for  a  criminal  contempt  and  the  party  must  be  confronted 
with  the  witnesses  against  him,  has  not  yet  been  decided  by  the 


857;  Accumulator  Co.  v.  Consol. 
Elect.  Storage  Co.,  53  Fed.  793, 
795;  Bonsack  Macli.  Co.  v.  National 
Cigarette  Co.,  64  Fed.  858;  Interna- 
tional Eegister  Co.  v.  Eecording 
Fare  Eegister  Co.,  125  Fed.  790; 
infra,  §  431.  For  a  case  where  the 
construction  put  upon  the  patent  by 
another  court  was  followed,  see  Ac- 
cumulator Co.  V.  Consol.  El.  Stor- 
age Co.,  53  Fed.  793. 

63  Where  aflSidavits  were  used,  it 
was  held  that  the  facts  to  authorize 
a  conviction  must  be  clearly  estab- 
lished. Garrigan  v.  U.  S.,  C.  C.  A., 
163  Fed.  16.  It  has  been  held,  that 
affidavits  containing  allegations  up- 
on information,  without  stating  the 
source  thereof,  and  also  mere  con- 
ckisions  of  law,  are  insufficient  to 
support  a  violation  of  an  injunc- 
tion. Westinghouse  Air-Brake  Co. 
V.  Christensen  Eng.  Co.,  128  Fed. 
749.  An  objection  that  a  contempt 
proceeding  was  based  on  a  rule  is- 
sued on  a  complaint  made  on  in- 
formation and  belief  supported  by 
an  affidavit  of  the  same  character 
was  held  to  be  too  late,  when  not 
raised  until  after  the  alleged  con- 
temaor  had  admitted  the  act 
charged  and  had  stated  in  defense, 
that  the  act  was  done  in  ignorance 
of  the  order.  Be  Eice,  181  Fed.  217. 
Where  a  party  charged  with  con- 
tempt appears  and  goes  to  trial 
vithout  objection  by  appropriate 
motion  to  the  sufficiency  of  the  in- 
formation and  affidavits,  such  objec- 


tion is  waived  unless  it  is  jurisdic- 
tional. Aaron  v.  U.  S.,  C.  C.  A.,  155 
Fed.  833.  It  has  been  said  that 
where  the  facts  appear  on  the  rec- 
ord or  by  testimony  already  taken 
in  another  proceeding  in  the  suit, 
to  which  the  respondent  was  a  party, 
no  affidavits  are  required.  Ostcr 
V.  People,  192  111.  473,  56  L.E.A. 
462.  Where,  at  the  appointed  time 
for  the  hearing  of  a  motion  to 
punish  for  contempt,  ex  parte  affi- 
davits in  support  thereof  were 
suppressed  on  the  defendant's  mo- 
tion and  the  hearing  continued  for 
the  taking  of  testimony;  it  was 
held  that  the  defendant  was  not 
thereby  put  in  jeopardy  and  that 
such  proceedings  did  not  constitute 
a  bar  to  a  subsequent  hearing.  New 
Jersey  Patent  Co.  v.  Martin,  186 
Fed.  513.  A  letter  written  by  an 
attorney  to  his  client,  advising  him 
of  the  terms  of  an  injunction,  in  a 
suit  in  which  the  attorney  is  em- 
ployed, is  not  a  privileged  communi- 
cation, and  it  is  admissible  in  evi- 
dence to  prove  knowledge  of  the  in- 
junction. Aaron  v.  U.  S.,  C.  C.  A., 
155  Fed.  833;  Fischer  v.  Hayes,  6 
Fed.  63 ;  U.  S.  v.  Debs,  64  Fed.  724. 
See  Woodrufe  v.  North  Bl.  G.  M. 
Co.,  45  Fed.  129.  For  a  collection 
of  authorities  on  the  right  to  try 
the  question  of  affidavits,  see  -Re 
Cole,  C.  C.  A.,  163  Fed.  180,  185; 
Merchants'  S.  &  G.  Co.  v.  Board  of 
Trade  of  Chicago,  C.  C.  A.,  201  Fed. 
19,  28. 


430a]       PRACTICE   IX   CRIMINAL   CONTKMPT  PROCKEDIXGS  2131 


Supreme  Court  of  the  I'liited  States.^*  It  is  the  better  i)ra<-tice 
not  to  tr}'  the  ease  upon  affidavits,  but  to  take  oral  testimony 
before  a  master  or  examiner.^^ 

The  court  may  take  judicial  notice  of  all  orders  made  in  the 
suit  out  of  which  the  contempt  arose,^^  and  also  it  has  been  held 
of  orders  in  connected  litigation,"  but  if  the  decision  is  based 
upon  findings  in  another  case  which  is  subsequently  reversed 
or  modified,  the  order  in  the  second  case  will  be  reversed.^' 

Except  in  the  cases  specified  in  the  Clayton  Act  ^®  the  accused 
has  no  right  to  a  trial  by  juiy.^®  nor  to  have  the  witnesses  ex- 
amined before  the  judge. ^^  He  has  no  right  to  a  change  of 
venue. ^2  He  cannot  be  obliged  to  testify  against  himself,^^  nor 
to  answer  interrogatories.^* 

In  the  absence  of  a  denial,  machines  or  articles  sold  under  the 
same  name  as  those  the  sale  of  which  was  enjoined  will  be  pre- 
sumed to  be  of  the  same  character.^*  Upon  an  application  to 
punish  a  bankrupt  for  contempt  for  disobedience  to  an  order  by 
a  referee,  the  court  should  receive  all  material  evidence  relating 
to  what  preceded  as  well  as  to  what  followed  the  referee's  order, 
although  this  may  show  that  the  order  was  erroneous.^^ 

The  erroneous  admission  of  incompetent  evidence  does  not 
necessitate  a  new  trial  when  the  judgment  specifically  sets  forth 
such  evidence  and  states  that  it  is  rejected.^'^    Where  the  descrip- 


64  In  Re  Cole,  C.  C.  A.,  23  L.E.A. 
(N.S.)  255,  163  Fed.  180,  184,  it 
was  held  that  it  did  not;  but  that 
case  might  reasonably  be  considered 
to   be   a  civil   contempt   proceeding. 

66  Merchants'  S.  &  G.  Co.  v.  Board 
of  Trade  of  Chicago,  C.  C.  A.,  201 
Fed.  9;  Sona  v.  Aluminum  Castings 
Co.,  C.  C.  A.,  214  Fed.  9.16. 

66  Schwartz  v.  U.  S.,  C.  C.  A., 
217  Fed.  866;   supra,   §  3;52a. 

67  See  Gates  v.  U.  S.,  C.  C.  A., 
223   Fed.   1013;   supra,   §  332a. 

68  Gates  v.  U.  S.,  C.  C.  A.,  223 
Fed.   1013. 

69  Infra,    8  430h,   supra.    S  429a. 
60  N.  J.  Patent  Co.  v.  Martin,  166 

Fed.  1010;  Merchants'  S.  &  G.  Co. 
V.  Board  of  Trade  of  Chicago,  C.  C. 
A.,   201   Fed.   19,  26;    Smith  v.  Gov- 


ernment  of    Canal    Zone,    C.    C.    A., 
239  Fed.  133. 

61  Merchants '  S.  &  G.  Co.  v.  Board 
of  Trade  of  Chicago,  C.  C.  A.,  201 
Fed.  19,  26;   Ibid.  201  Fed.  19,  26. 

62  Ibid.  201  Fed.  19,  27. 

63  Gomjiers  v.  Bucks  Stove  & 
Range  Co.,  221  U.  S.  418,  444,  55 
L.  ed.  797,  807,  34  L.R.A.  (N.S.) 
874.  But  see  Merchants'  S.  &  G. 
Co.  V.  Board  of  Trade,  C.  C.  A.,  201 
Fed.   19,  27,  and  citations. 

64  Hollingsworth  v.  Duane,  Wall. 
C.  C.  77.     See  U.  S.  v.  Duane,  Wall. 

r.  c.  102. 

66  stahl  V.  Ertel,  62  Fed.  920. 

66  Ee  Goodrich.  C.  C.  A.,  184 
Fed.   r>. 

67  Gates  V.  T^.  S.,  C.  C.  A..  233 
Fed.  201. 


2132 


ENFORCEMENT  OP   DECREES  AND  ORDERS 


[§430a 


tion  was  too  general  the  judgment  of  conviction  was  reversed,®' 
but  the  trial  judge  was  allowed  to  enter  a  new  judgment  show- 
ing that  the  improper  evidence  had  been  disregarded  without  a 
new  trial.®' 

The  accused  is  entitled  to  a  fair  hearing.  A  decision  by  a  court 
Avhicli  announced  that  it  had  prejudged  the  act  and  delivered 
an  opinion  prepared  before  the  trial  was  set  aside.'''*' 

The  respondent  is  presumed  to  be  innocent  and  he  must  be 
proved  to  be  guilty  beyond  a  reasonable  doubt. '''^  "Strong  im- 
pressions" are  not  sufficient  against  a  sworn  denial.'''^  It  has 
been  held  that  a  mere  preponderance  of  evidence  is  insufficient.'''* 

The  burden  of  proof  is  upon  a  corporation  to  show  that  it  is 


68  Gates    v.    U.    S.,   C.    C.    A.,   223 
Fed.  1018. 

69  Gates   v.   U.   S.,    C.   C.   A.,   2.53 
Fed.  201. 

70  Ex    parte    Nelson,    Mo.,    June, 
]91H,  156  S.  W.  795. 

n  Hayes  v.  Fischer,  102  U.  S.  121, 
26  L.  ed.  95;  Ex  parte  Kearney,  7 
Wheat.  38,  5  L.  ed.  391;  New  Gr- 
leans  v.  Steamship  Co.,  20  Wall. 
387,  22  L.  ed.  3,54;  King  v.  Ohio 
&  M.  Ry.  Co.,  Fed.  Gas.  No.  7,800; 
Be  Judson,  3  Blatchf.  148  Fed.  Cas. 
No.  7,563 ;  Birdsall  v.  Hagerstown 
Agricultural  Imp.  Co.,  1  Ban.  &  A. 
426;  Be  Pitman,  1  Curtis,  186; 
Allis  V.  Stowell,  19  Gff.  Gaz.  727, 
728;  Fischer  v.  Hayes,  6  Fed.  63; 
Woodruflf  V.  North  Bloomfield 
Gravel  Mine  Co.,  18  Fed.  753;  Be 
Manning,  44  Fed.  275;  Accumulator 
Co.  V.  Cons.  El.  Storage  Co.,  53  Fed. 
796;  IT.  S.  V.  Jose,  63  Fed.  951;  Be 
Aker,  66  Fed.  290;  General  El.  Co. 
V.  McLaren,  140  Fed.  876;  U.  S.  v. 
Carroll,  147  Fed.  947;  Standard 
Typewriter  Co.  v.  Standard  Folding 
Typewriter  Sales  Co.,  187  Fed.  596; 
Armstrong  v.  Belding  Bros.  &  Co., 
181  Fed.  173;  Victor  Talking  Mach. 
Co.  V.  Sonora  Phonograph  Co.,  191 
Fed.  988;  Schwartz  v.  IT.  S.,  C. 
C.  A.,  217  Fed.  866;   Gates  v.  U.  S.. 


C.  C.  A.,  233  Fed.  201;  Kelly  v.  U. 
S.,  C.  C.  A.,  250  Fed.  947;  Be  Buck- 
ley, 69  Cal.  1;  Harris  v.  Clark,  10 
How.  Pr.  (N.  Y.)  415;  Potter  v. 
Low,  16  How.  Pr.  N.  S.  .549. 

72  Cimiotti  Unhairing  Co.  v.  Frol- 
loehr,   121   Fed.  561. 

73J?e  Buckley,  69  Cal.  1.  The 
defendant  will  not,  in  the  absence 
of  evidence,  be  presumed  to  have  no- 
tice of  the  issue  of  a  mandate  from 
an  appellate  court,  directing  a  de- 
cree for  an  injunction,  when  no  such 
decree  has  been  entered.  Dowagiac 
Mfg.  Co.  V.  Minnesota  Moline  Plow 
Co.,  124  Fed.  736.  But,  where  the 
contempt  charged  was  the  violation 
of  an  order  to  produce  books  and 
papers  for  inspection,  which  was 
made  after  a  hearing,  at  which  the 
defendant  failed  to  deny  that  the 
books  and  papers  were  not  under 
their  control,  it  was  held,  in  tlie 
contempt  proceedings,  that  the 
burden  was  upon  them  to  show  facts 
excusing  their  default ;  and  proof 
offered  by  them  tending  to  show 
that  the  books  and  papers  had  been 
through  accident  or  mistake  lost 
or  destroyed,  before  the  hearing  of 
tlie  application  for  their  inspection, 
was  insufficient  to  relieve  them  from 
})unishment.      London    Guarantee    & 


§  430a]       PRACTICE  IN    CRIMINAL  CONTEMPT  PROCEEDINGS 


2133 


not  in  possession  and  eojitrol  of  its  own  books  wliidi  ii  Iihs  been 
ordered  to  produced* 

When  the  contempt  charged  both  conspiracy  by  the  respond- 
ents to  aid  a  prisoner  committed  to  his  custody  to  escape  and 
permission  and  assistance  to  the  prisoner  in  such  escape  they 
were  punished  for  the  permission  and  assistance  although  the 
charge  of  conspiracy  was  not  proved.'^ 

The  settlement  and  discontinuance  of  a  suit  is  no  defense  to 
a  criminal  proceeding  for  the  violation  of  an  order  therein  pre- 
viously made.''^^  It  is  no  defense  to  criminal  proceedings  to 
punish  for  contempt  for  disobedience  to  an  injunction  that 
it  was  afterwards  dissolved,""  or  that  the 'respondent  ultimately 
succeeded  in  the  suit  in  which  tlie  contempt  was  committed  J* 
Where  an  injunction  against  the  infringement  of  a  patent  had 
been  granted  and  no  appeal  had  been  taken  from  the  same,  it 
was  held  that  the  validity  of  the  patent  for  Avant  of  invention 
and  anticipation  was  not  open  for  review  on  a  motion  to  punish 
the  defendant  for  contempt  in  its  violation.'^ 

Where  one  or  more  defendants  are  found  guilty  of  separate 
acts  of  disobedience  to  an  injunction  no  general  sentence  should 
be  imposed  but  the  punishment  for  each  offense  may  be  reviewed 
separately.®" 


Accident  Co.,  Limited  v.  Doyle  & 
Doak,  134  Fed.  125.  See  Be  Iron 
Clad  Mfg.  Co.,  C.  C.  A.,  201  Fed. 
66.  Where  officers  of  a  corporation, 
in  response  to  a  rule  upon  the  con- 
dition for  the  production  of  books 
and  papers,  answered  in  its  name 
that  they  had  been  destroyed,  and, 
upon  examination,  said  that  this 
was  alleged  upon  information  re- 
ceived from  their  subordinates,  who 
had  custody  of  the  same,  it  was 
held  that  they  were  not  in  contempt 
of  court  because  they  failed  to  an- 
swer of  their  own  personal  knowl- 
edge. Despeau.x  v.  Pennsylvania  R. 
Co.,  149  Fed.  798.  On  a  motion  for 
a  commitment  for  contempt  when 
served  with  a  subptena,  it  was  held 
that  two  witnesses  must  be  pro 
ciuced  to  prove  contemptuous  words, 
Fed.  Prac.  Vol.  11—64 


but  that  one  was  sufficient  to  prove 
a  battery  upon  the  process-server. 
Anon.,  o   Atkyns,  219. 

74i?f  Ironclad  Mfg.  Co.,  C.  C. 
A.,  201    Fed.  66. 

76  U.  S.  v.  Swepston,  C.  C.  A., 
251  Fed.  205. 

76  He  Steiner,  195  Fed.  299,  where 
tlie  contempt  consisted  in  present- 
ing false  affidavits. 

77  Shuler  v.  Raton  Waterworks 
Co..  C.  C.  A.,  247  Fed.  6:U.  See 
Gompers  v.  Bucks  Stove  &  Range 
Co.,  221  U.  S.  418,  451. 

78  Campbell  v.  Magnet  Light  Co., 
175  Fed.  117;  Brougham  v.  Oceanic 
Steam  Nav.  Co.,  C.  C.  A.,  205  Fed. 
857. 

79  Westinghouse  Air  Brake  Co.  v. 
Christensen  Eng.  Co.,   128  Fed.  749. 

80  Gates   v.   U.   S.,   C.   C.   A.,   223 


2134 


ENFORCEMENT   OF   DECREES  AND   ORDERS 


[§430a 


Where  an  injunction  order  has  been  reversed  or  dissolved  as 
improvident,  that  fact  can  be  taken  into  consideration  when  de- 
termining the  penalty  for  its  violation. ^^ 

In  the  assessment  of  the  fine  imposed,  the  court  may  take 
into  consideration  increased  costs  incurred  by  the  Government 
because  of  the  contempt, ^^  but  no  compensatory  fine  can  be  im- 
posed.®^ A  party  cannot  be  punished  for  contempt  when  the 
order  which  he  violated  is  void  for  want  of  jurisdiction ;  8*  even, 
it  has  been  held  in  civil  proceedings,  when  tlie  order  is  set  aside 
because  the  plaintiff  has  an  adequate  remedy  at  law.^^  A  per- 
son is  not  relieved  from  punishment  for  contempt  because  he 
acted  in  good  faith  under  the  advice  of  counsel  that  he  was 
not  infringing  the  court's  order,^^  nor  because  he  disobeyed  an 
order  from  charitable  motives,^''^  as  in  the  case  of  a  sheriff  who 
releases  a  prisoner  during  working  hours  in  order  that  the 
latter  might  support  his  family,**  nor  because  he  has  already 
served  the  sentence  in  a  criminal  prosecution  for  the  same 
offense.*® 

When  disobedience  to  an  order  requiring  the  payment  of 
money  is  due  to  inability  resulting  from  bankruptcy,  insolvency 
or  other  causes  not  attributable  to  the  fault  of  the  part}^  judged, 
ordinarily  he  will  not  be  punished  for  contempt ;  ^^  but  the  bur- 
den of  proof  is  on  the  respondent  in  such  cases. '^  A  violation 
of  an  order  may  be  punished  when  it  was  the  result  of  negli- 
gence, but  not  wilful   disobedience.®'^     The  fact   that   the  con- 


Fed.  1013;  Am.  Lighting  Co.  v. 
Public  Service  Corporation,  134  Fed. 
129.  But  see  U.  S.  v.  Shipp,  203 
U.  S.  563,  51  L.  ed.  319. 

81  S.  Anargyros  v.  Anargyros  & 
Co.,  191  Fed.  208;  Shuler  v.  Eaton 
Waterworks  Co.,  C.  C.  A.,  247  Fed. 
634. 

iZBe  Independent  Pub.  Co.,  C.  C. 
A.,  240  Fed.  849. 

83Searls  v.  Wordeu,  13  Fed.  716. 

84  Cuyler  v.  Atl.  &  N.  C.  L.  R.  Co., 
131  Fed.  95. 

85  Am.  Lighting  Co.  v.  Public 
Service  Corporation,  134  Fed. 
129. 

86  Atlantic   G.   P.   Co.   v.  Dittman 


P.  Mfg.  Co.,  9  Fed.  316;  Ulman  v.~ 
Ritter,  72  Fed.  1000;  Westinghouse 
El.  &  Mfg.  Co.  V.  Sangamo  El.  Co., 
128  Fed.  747;  Be  Munroe,  210  Fed. 
326,  reversed  as  another  point,  C. 
C.  A.,  216  Fed.  107;  Be  Fogelman, 
204  Fed.  357. 

ST  Be  O'Rouree,   251   Fed.   268. 

88  Ibid. 

88  Ee  Sobol,  C.  C.  A.,  242  Fed. 
487,  see  Clayton  Act,  §25,  38  St. 
at  L.  740;  Comp.  St.,  §  1245e, 
quoted,   infra,    S  430b. 

90  Be  Sobol,  C.  C.  A.,  242  Fed. 
487. 

91  Ibid. 

92  Indianapolis  Water  Co.  v.  Am. 


§  480a J        PRACTICE   IN    CRmiXAL   CONTEMPT  PROCEEDINGS 


2133 


tempt  was  committed  under  the  advice  of  counsel,®^  or  through 
negligence,^*  or  has  been  purged  by  obedience  to  the  order  and 
undoing  the  wrong,^^  or  that  the  act  was  one  not  generally  un- 
derstood by  the  public  to  be  illegal,^^  are  mitigating  circum- 
stances which  will  be  considered  in  measuring  the  punishment. 

The  extent  of  the  punishment  is  within  the  discretion  of  the 
court,''''  provided  it  does  not  exceed  tlie  statutory  limits  and  can 
not  be  considered  cruel  and  unusual.'*  When  an  order  was  dis- 
obeyed after  a  party,  through  his  counsel,  had  promised  to  obey 
it,  it  was  held  that  he  must  be  punished  by  imprisonment.'' 
It  has  been  said  that  a  sentence  of  both  fine  and  imprisonment 
may  be  imposed. ^°**  It  seems  that  the  imprisonment  imposed 
must  be  for  a  definite  period  of  time.^**^ 

The  imprisonment  may  be  in  a  county  jail.^®^  If  it  exceeds 
one  year  it  may  be  in  a  penitentiary. ^'^ 

In  the  assessment  of  a  fine  the  expense  to  the  government 
caused  by  the  contempt  may  be  taken  into  consideration. i®* 

Where  a  fine  is  imposed,  tliat  must  be  made  payable  to  the 


Strawboard  Co.,  75  Fed.  972;  Rob- 
inson V.  S.  &  B.  Lederer  Co.,  1-16 
Fed.  99;{.  But  see  Hanley  v.  Pae. 
Live  Stock  Co.,  C.  C.  A.,  234  Fed. 
522. 

93  Ullman  v.  Ritter,  72  Fed.  KUin ; 
Re  Fogelman,  204  Fed.  351.  Con- 
ini,  U.  S.  ex  rel.  D  &  G.  R.  R.  Co. 
V.  Atchison  T.  &  S.  F.  R.  Co.,  Hi 
Fed.  853. 

94  Indianapolis  Water  Co.  v.  Am. 
Strawboard  Co.,  75  Fed.  972;  Rob- 
inson V.  S.  &  B.  Lederer  Co.,  146 
Fed.  993.  No  punishment  was  im- 
posed wliere  a  party  liad  refused  to 
]iroduce  papers  under  the  belief  that 
they  would  disclose  Government  se- 
crets. Re  Grove,  C.  C.  A.,  180  Fed. 
62;  Re  Farkas,  204  Fed.  343;  U.  S. 
V.  Colo.,  216  Fed.  654. 

95  Re  Wiesebrock,  188  Fed.  757 ; 
Re  Farkas,  204  Fed.  343. 

96i?e  Boyd,  228  Fed.  1003;  inter- 
ference with  competition  at  a  .iudi- 
cial  sale. 


C. 
C. 


A., 
A.. 


97Creekmore  v.  U.  S.,  C. 
237  Fed.  743;  Re  Sobol,  C. 
242  Fed.  487. 

98  Ibid. 

99  Missouri,  K.  &  T.  Ry.  Co.  v. 
McCrary,  182  Fed.  401. 

100  U.  S.  V.  Collins,  146  Fed.  553, 
555.  Contra,  Ex  parte  Davis,  112 
Fed.   139. 

101  Matter  of  Marsh,  McArthur  & 
M.  (S.  C.  D.  C.)  32,  where  it  was 
held  that  otherwise  such  an  order 
was  void;  Gompers  v.  Bucks  Stove 
&  Range  Co.,  221  U.  S.  418,  442,  55 
L.  ed.  797,  806,  34  L.R.A.  (N.S.) 
874.  But  see  Re  Nevitt,  C.  C.  A., 
117  Fed.  448,  461. 

102Swepston  v.  United  States,  C. 
C.  A.,  251  Fed.  205. 

lOSCreekmore  v.  U.  S.,  C.  C.  A., 
237  Fed.  743. 

104  «e  Independent  Pub.  Co.,  228 
Fed.  787;  (where  the  contempt 
necessitated  a  new  trial  of  tlu'  snit  i, 
R<    Farkas,  204  Fed.  343. 


2136  ENFORCEMENT   OF   DECREES  AND  ORDERS  [§430a 

United  States ;  ^^^  but  it  has  been  held,  that,  a  fine  may  also  be 
imposed  payable  to  the  party  injured  and  for  the  purpose  of  his 
indemnification.  ^°^ 

This  has  been  often  done  in  patent  cases, ^•''''  and  sometimes  in 
others.^"* 

Costs,  if  awarded,  are  paid  to  the  Government. ^'^^  "Where  the 
court  has  found  that  a  party  was  guilty  of  several  independent 
contemptuous  acts  and  imposed  a  single  punishment,  the  judg- 
ment must  be  reversed  if  it  appears  that  some  of  those  acts  were 
not  contemptuous.^^" 

It  is  the  better  practice  for  the  order  committing  a  person  for 
contempt  to  recite  the  offenses  charged,  although  it  seems  that 
this  is  not  necessary  if  it  describes  the  same  by  reference  to 
other  proceedings.^^^  It  has  been  said  "The  record  should  show- 
that  an  issue  had  been  made  in  some  way  on  the  question  of 
contempt,  and  that  the  person  adjudged  guilty  thereof  had  had 
an  opportunity  to  be  heard  in  reference  thereto. ^^'^ 

It  has  been  said  that  an  order  committing  a  person  for  con- 
tempt cannot  be  altered  at  a  subsequent  term  of  the  court ;  ^^^ 
that  the  court  cannot  subsequently  discharge  the  party  commit- 

105  i?e  Christensen  Engineering  Co.,  L.  ed.  1072;  Christensen  Engineer- 
194  U.  S.  458,  24  Sup.  Ct.  729,  48  L.  ing  Co.  v.  Westinghouse  Air  Brake 
ed.  1072;  Bessette  v.  W.  B.  Conkey  Co.,  C.  C.  A.,  1:5.5  Fed.  774;  Chicago 
Co.,  194  U.  S.  ;?24,  24  Sup.  Ct.  665,  Directory  Co.  v.  United  States  Direc- 
48  L.  ed.  997;  Gompers  v.  Bucks  tory  Co.,  123  Fed.  194;  Continental 
Stove  &  Range  Co.,  .'521  U.  S.  418,  ;51  Gin  Co.  v.  Murray  Co.,  C.  C.  A.,  162 
Sup.  Ct.  492,  55  L.  ed.  797,  34  Fed.  873;  Sabin  v.  Fogarty,  70  Fed. 
L.R.A.    (N.S.)    874.  482. 

106  Kreplik  v.  Couch  Patents  Co.,  109  Durant  v.  Washington  County, 
C.  C.  A.,  190  Fed.  565,  citing  Be  4  Woolw.  297;  Gompers  v.  Bucks 
Chiles,  22  Wall.  157,  168,  22  L.  ed.  Stove  &  Range  Co.,  221  U.  S.  418, 
819;  Hendiyx  v.  Fitzpatrick,  19  447,  55  L.  ed.  797,  808,  34  L.R.A. 
Fed.    810,   813;    Merchants   Stock   &  (N.S.)    874. 

Grain  Co.  v.  Board  of  Trade,  C.  C.  HO  Gompers    v.     Bucks     Stove    & 

A.,  201  Fed.  20,  30.  Range  Co.,  221  U.  S.  418,  447,  55  L. 

107  Ibid;  Hendryx  v.  Fitzpatrick,  ed.  797,  808,  .34  L.R.A.  (N.S.)  874. 
19  Fed.  810.  Ill  Fischer  v.  Hayes,  6  Fed.  63. 

lOSCary     Manufacturing     Co.     v.  112  Ee   Cole,   C.   C.   A.,   23   L.R.A. 

Acme  Flexible  Clasp  Co.,  187  IT.  S.  (N.S.)   255,  163  Fed.  180,  183. 

427,  23  Sup.  Ct.  211,  47  L.  ed.  244;  113  Fischer  v.  Hayes,  6  Fed.  63.    A 

s.  C,  C  C.  A.,  108  Fed.  873;   Mat-  term    of   a    court   in   bankruptcy    is 

ter  of  Christensen  Engineering  Co.,  never  closed.    Be  Henschel,  114  Fed. 

194  U.  S.  458,  24  Sup.  Ct.  729,  48  968. 


§  430b]  CONTEMPTS    UNDER    THE    CLAYTON    ACT  2137 

ted  upon  proof  of  his  inability  to  comply  with  the  order,  his 
remedy  being  an  application  to  the  President  for  a  pardon ;  "* 
and  that  such  an  order  is  void  if  it  does  not  express  or  limit  tht 
term  of  imprisonment. ^^^ 

When  the  contempt  consisted  in  disobedience  to  a  subpoena 
to  appear  and  produce  documents  before  a  grand  jury,  and  an 
order  directed  that  the  delinquent  be  imprisoned  "until  he  shall 
be  willing  to  obey  the  command  of  said  subpoena  and  of  this 
order,"  it  was  held:  that,  upon  the  discharge  of  the  grand  jury, 
the  term  of  imprisonment  thus  imposed  expired ;  but  that  he  was 
not  purged  of  his  contempt,  and  a  new  term  of  imprisonment 
was  consequently  imposed  upon  him.^^^ 

A  prisoner  summarily  committed  for  a  contempt  of  court  is 
not  entitled  to  any  credit  for  good  behavior."''' 

It  has  been  said  that  the  President  has  no  power,  by  pardon, 
to  relieve  a  person  from  punishment  for  a  civil,  as  distinguished 
from  a  criminal,  contempt."*  The  court  refused  to  stay  pro- 
ceedings under  a  commitment,  until  the  persons  committed  for 
contempt  could  apply  to  the  President  for  pardon."^ 

Criminal  proceedings  to  punish  contempts  are  to  a  certain 
extent,  like  other  criminal  proceedings,  assimilated  by  statute 
to  those  under  the  State  practice.^^o 

It  has  been  said  that  such  an  offense  is  not  a  felony,  but  more 
in  the  nature  of  a  misdemeanor.^^i 

Otherwise,  the  practice  in  criminal  and  civil  proceedings  to 
punish  for  contempt  is  substantially  the  same. 

§  430b.  Contempt  proceedings  under  the  Clayton  Act  to  pun- 
ish acts  which  constitute  criminal  offenses. 

Complaints  of  abuses  by  the  Federal  courts  in  depriving  of 

114  i?e  Mullee,  7  Blatchf.  2.1,  Fed.  might  relieve  a  person  of  a  fine  im- 

Cas.  No.  9,911.     Contra,  Re  Nevitt,  posed  upon  him  for  an  affray  in  the 

C.  C.  A.,  117  Fed.  448,  -461.  presence   of  the   court,   :^   Op.   Atty. 

116  Matter  of  Marsh,  Mac  A.  &  M.  G.   622;    and  Attorney  General   Ma- 

(D.  C.)    .32.     Contra,  He  Nevitt,  C.  son:   that  he  might  relieve  default- 

C.  A.,  117  Fed.  448,  461.  ing    jurors    from    the    payment    of 

116  U.  S.  V.  Collins,  146  Fed.  553.  fines,  4  Op.  Atty.  G.  458. 

117  i?e  Terry,  37  Fed.  649.  119  Be  Nevitt,  C.  C.  A.,   117   Fed. 

118  i?e  Nevitt,  C.  C.  A.,  117  Fed.  448,  453. 

448,    456.      Contra,    Re    Mullee,    7  HO  Re    Acker,    66   Fed.    290,   203. 

Blatchf.    23,    Fed.    Gas.    No.    9,911.  See  U.   S,   v.   Block,  4   Saw>-er  211. 

Attorney    General    Gilpin    expressed  Fed.  Gas.  No.   14,609. 

the     opinion:     that     the     president  121  i?e  Acker,  66  Fed.  290. 


2138         ENFORCEMENT  OF  DECREES  AND  ORDERS       [§  430b 

their  constitutional  right  to  trial  by  jury  laborers  charged  with 
acts  of  violence  resulted  in  the  enactment  of  the  Clayton  Law 
of  October  15,  1914. 

"Any  person  who  shall  wilfully  disobey  any  lawful  writ, 
process,  order,  rule,  decree,  or  command  of  any  district  court  of 
the  United  States  or  any  court  of  the  District  of  Columbia  by 
doing  any  act  or  thing  therein,  or  thereby  forbidden  to  be  done 
by  him,  if  the  act  or  thing  so  done  by  him  be  of  such  character 
as  to  constitute  also  a  criminal  otfense  under  any  statute  of  the 
United  States  or  under  the  laws  of  any  State  in  which  the  act 
was  committed  shall  be  proceeded  against  for  his  said  contempt 
as  hereinafter  provided. "  ^ 

"Nothing  herein  contained  shall  be  construed  to  relate  to  con- 
tempts committed  in  the  presence  of  the  court,  or  so  near  thereto 
as  to  obstruct  the  administration  of  justice,  nor  to  contempts 
committed  in  disobedience  of  any  lawful  writ,  process,  order, 
rule,  decree,  or  command  entered  in  any  suit  or  action  brought 
or  prosecuted  in  the  name  of,  or  on  behalf  of,  the  United  States, 
but  the  same,  and  all  other  cases  of  contempt  not  specifically  em- 
braced within  section  twent^'-one  of  this  Act,  may  be  punished 
in  conformit}'  to  the  usage  at  law  and  in  equity  now  prevail- 
ing. ' '  2 

"Whenever  it  shall  be  made  to  appear  to  any  district  court 
or  judge  thereof,  or  to  any  judge  therein  sitting,  by  the  return 
of  a  proper  officer  on  lawful  process,  or  upon  the  affidavit  of 
some  credible  person,  or  by  information  filed  by  any  district  at- 
torne.y,  that  there  is  reasonable  ground  to  believe  that  any  person 
has  been  guilty  of  such  contempt,  the  court  or  judge  thereof,  or 
any  judge  therein  sitting,  may  issue  a  rule  requiring  the  said 
person  so  charged  to  show  cause  upon  a  day  certain  why  he 
should  not  be  punished  therefor,  which  rule,  together  with  a 
copy  of  the  affidavit  or  information,  shall  be  served  upon  the 
person  charged,  with  sufficient  promptness  to  enable  him  to  pre- 
pare for  and  make  return  to  the  order  at  the  time  fixed 
therein."  ^ 

"If  upon  or  by  such  return,  in  the  judgment  of  the  court, 

§  430b.     1  38  St.  at  L.   738,   §  21,  3  38    St.    at   L.    738,    §  22,    Comp. 

Conip.  St.,  §  1245a.  St.,  §  1245b. 

2  38    St.    at    L.    739,    §24,    Comp. 
St.,  §  1245d. 


§  430b]  CONTEMPTS    I'NDEK   THE    CLAYTON    ACT  2139 

the  alleged  eoiitempt  be  not  suffieieutly  purged,  a  trial  shall  be 
directed  at  a  time  and  place  fixed  by  the  court :  Provided,  how- 
ever. That  if  the  accused,  being  a  natural  person,  fail  or  refuse 
to  make  return  to  tlie  rule  to  show  cause,  an  attachment  may 
issue  against  his  person  to  compel  an  answer,  and  in  case  of  his 
continued  failure  or  refusal,  or  if  for  any  reason  it  be  imprac- 
ticable to  dispose  of  the  matter  on  the  return  day,  he  may  be  re- 
(juired  to  give  reasonable  bail  for  his  attendance  at  the  ti-ial  and 
his  submission  to  the  final  judgment  of  the  court.  Where  the 
accused  is  a  body  corporate,  an  attachment  for  the  sefjuestration 
of  its  property  may  be  issued  upon  like  refusal  or  failure  to 
answer. ' '  * 

"In  all  cases  within  the  purview  of  this  Act  such  trial  may 
be  by  the  court,  or,  upon  demand  of  the  accused,  bj^  a  jury ;  in 
which  latter  event  the  court  may  impanel  a  jury  from  the  jurors 
then  in  attendance,  or  the  court  or  the  judge  thereof  in  chambers 
may  cause  a  sufficient  number  of  jurors  to  be  selected  and  sum- 
moned, as  provided  by  law,  to  attend  at  the  time  and  place  of 
trial,  at  which  time  a  jury  shall  be  selected  and  impaneled  as 
upon  a  trial  for  misdemeanor;  and  such  trial  shall  conform,  as 
near  as  may  be,  to  the  practice  in  criminal  cases  prosecuted  by 
indictment  or  upon  information."  ^ 

"If  the  accused  be  found  guilty,  judgment  shall  be  entered 
accordingly,  prescribing  the  punishment,  either  by  fine  or  im- 
prisonment, or  both,  in  the  discretion  of  the  court.  Such  fine 
shall  be  paid  to  the  United  States  or  to  the  complainant  or  other 
party  injured  by  the  act  constituting  the  contempt,  or  may, 
where  more  than  one  is  so  damaged,  be  divided  or  apportioned 
among  them  as  the  court  may  direct,  but  in  no  case  shall  the 
fine  to  be  paid  to  the  United  States  exceed,  in  case  the  accused 
is  a  natural  person,  the  sum  of  $1,000,  nor  shall  such  imprison- 
ment exceed  the  term  of  six  months :  Provided,  That  in  any  case 
the  court  or  a  judge  thereof  may,  for  good  cause  shown,  bj'  affi- 
davit or  proof  taken  in  open  court  or  before  such  judge  and 
filed  with  the  papers  in  the  case,  dispense  with  the  rule  to  show 
cause,  and  may  issue  an  attachment  for  the  arrest  of  the  person 
charged  with  contempt :  in  which  event  such  person,  when  ar- 
rested, shall  be  brought  before  such  court  or  a  judge  thereof 

4  38    St.    at    L.    7:18,    §22,    Comp.  5  38    St.    at    L.    738,    §22,    Comp. 

St.,  §  1245b.  St.,  §  1245b. 


2140  ENFORCEMENT   OF   DECREES  AND  ORDERS  [§  430e 

without  unnecessary  delay  and  shall  be  admitted  to  bail  in  a 
reasonable  penalty  for  his  appearance  to  answer  to  the  charge 
or  for  trial  for  the  contempt;  and  thereafter  the  proceedings 
shall  be  the  same  as  provided  herein  in  case  the  rule  had  issued 
in  the  first  instance. ' '  ^ 

"The  evidence  taken  upon  the  trial  of  any  person  so  accused 
may  be  preserved  by  bill  of  exceptions,  and  any  judgment  of 
conviction  may  be  reviewed  upon  writ  of  error  in  all  respects  as 
now  provided  by  law  in  criminal  cases',  and  may  be  affirmed,  re- 
versed, or  modified  as  justice  may  require.  Upon  the  granting 
of  such  writ  of  error,  execution  of  judgment  shall  be  stayed, 
and  the  accused,  if  thereby  sentenced  to  imprisonment,  shall  be 
admitted  to  bail  in  such  reasonable  sum  as  may  be  required  by 
the  court,  or  by  any  justice,  or  any  judge  of  any  district  court 
of  the  United  States  or  any  court  of  the  District  of  Columbia. ' '  ' 

"No  proceeding  for  contempt  shall  be  instituted  against  any 
person  unless  begun  within  one  year  from  the  date  of  the  act 
complained  of;  nor  shall  any  such  proceeding  be  a  bar  to  any 
criminal  prosecution  for  the  same  act  or  acts ;  but  nothing  herein 
contained  shall  affect  any  proceedings  in  contempt  pending  at 
the  time  of  the  passage  of  this  Act."  ® 

This  statute  is  constitutional  although  it  discriminates  between 
persons  guilty  of  different  classes  of  contempts  of  the  court.' 
It  does  not  apply  to  an  attempt  to  tamper  with  a  juror.i" 

§  430c.  Contempt  proceedings  under  Prohibition  Law. 

Special  statutory  regulations  have  been  enacted  to  regulate 
contempt  proceedings  to  punish  violations  of  injunctions  under 
the  Federal  Prohibition  Law. 

"In  the  case  of  the  violation  of  any  injunction,  temporary 
nr  permanent,  granted  pursuant  to  the  provisions  of  this  title, 
the  court,  or  in  vacation  a  judge  thereof,  may  summarily  try 
and  punish  the  defendant.  The  proceedings  for  punishment  for 
contempt  shall  be  commenced  by  filing  with  the  clerk  of  the 
court  from  which  such  injunction  issued  information  under  oath 

6  38  St.  at  L.  738,  §  22,  Comp.  9  Couts  v.  U.  S.,  C.  C.  A.,  249 
St.,   §  1245b.                                                   Fed.  595. 

7  38    St.    at    L.    739,    §23,    Comp.  10  Ibid. 
St.,  §  1245e. 

8  38    St.    at    L.    740,    §  25,    Comp. 
St.  §  1245e. 


§431]  CIVIL    CONTEMPT    PROCEEDINGS  2141 

setting  out  the  alleged  facts  constituting  the  violation,  where- 
upon the  court  or  judge  shall  forthwith  cause  a  warrant  to 
issue  under  which  tiie  defendant  shall  be  arrested.  The  trial 
may  be  had  upon  affidavits,  or  either  party  ma^^  demand  the  pro- 
duction and  oral  examination  of  the  witnesses.  Any  person 
found  guilty  of  contempt  under  the  provisions  of  this  section 
shall  be  punished  by  a  fine  of  not  less  than  $500  nor  more  than 
.$1,000,  or  by  imprisonment  of  not  less  than  thirty  days  nor  more 
than  twelve  months,  or  by  both  fine  and  imprisonment."^ 

"No  person  shall  be  excused,  on  the  ground  that  it  may  tend 
to  incriminate  him  or  subject  him  to  a  penalty  or  forfeiture, 
from  attending  and  testifying,  or  producing  books,  papers,  docu- 
ments, and  other  evidence  in  obedience  to  a  subpoena  of  any 
court  in  any  suit  or  proceeding  based  upon  or  growing  out  of  any 
alleged  violation  of  this  Act ;  but  no  natural  person  shall  be 
prosecuted  or  subjected  to  any  penalty  or  forfeiture  for  or  on  ac- 
count of  any  transaction,  matter,  or  thing  as  to  which,  in  obedi- 
ence to  a  subpoena  and  under  oath,  he  may  so  testify  or  produce 
evidence,  but  no  person  shall  be  exempt  from  prosecution  and 
punishment  for  perjury  committed  in  so  testifying. "  ^ 

"After  February  1,  1920,  the  possession  of  liquors  by  any  per- 
son not  legally  permitted  under  this  title  to  possess  liquor  shall 
be  prima  facie  evidence  that  such  liquor  is  kept  for  the  purpose 
of  being  sold,  bartered,  exchanged,  given  away,  furnished,  or 
otherwise  disposed  of  in  violation  of  the  provisions  of  this 
title.  "3 

§431.  Civil  contempt  proceedings. 

There  is  no  settled  practice  in  civil  contempt  proceedings.^ 
Proceedings  to  punish  a  contempt  otherwise  than  as  a  criminal 
offense  ^  are  instituted  for  the  protection  of  the  person  injured.^ 
This  is  the  usual  remedy  for  the  violation  of  an  injunction 
granted  for  the  protection  of  that  party  when  the  infringement  is 
not  a  criminal  act.*    The  proceedings  mu.st  clearly  apprise  the 

§430c.     lAct    of    Oct.    28,    1919,       Powdor   Co.,  C.  C.  A.,  206  Fed.  24. 

S24,  41   St.   at  L.   305.     Cf.  supra,           Z  Supra,   §§430-430e. 

§  274a.  8  Board   of   Trade  v.   Tvu-her,   221 

2  Ibid,    §30.  See   snpra,   §§  339a,       Fed.  300. 

339b.  4Bradstreet    Co.    v.    Bradstreet 's 

8  Ibid,  §  33.  Collection  Bureau,  C.  C.  A.,  249  Fed. 

§-431.     lU.  S.    V.    Sweeney,    9.1       958. 

Fed.  434,  446;  Morehouse  v.  Giant 


2142 


ENFORCEMENT   OF   DECREES  AND   ORDERS 


[§431 


defendant  of  the  nature  of  the  eliarge.^  With  the  exceptions 
hereinafter  described  they  follow  in  general  the  proceedings  to 
punish  a  contempt  criminall}'  in  cases  not  covered  b}-  the  Clay- 
ton Act.^ 

The  proceedings  should  be  entitled  Avith  the  name  of  the  suit 
in  which  the  offense  was  committed.'''  They  are  usually  insti- 
tuted by  an  order  to  show  cause  supported  by  an  affidavit.^ 

In  case  of  disobedience  to  a  decree  for  the  performance  of  a 
specific  act,  other  than  the  payment  of  money,  the  rules  direct 
the  issue  of  an  attachment  ex  parte  by  the  clerk,  upon  the  filing 
of  an  affidavit  that  the  act  has  not  been  performed  within  the 
required  time.^  It  is,  however,  the  usual  practice  to  give  notice 
to  the  delinquent,  of  an  application  for  an  attachment,  either 
by  an  order  to  show  cause  or  otherwise. i®  An  attachment  may 
be  issued  at  the  request  of  a  person  not  a  party  to  the  cause,  in 
whose  favor  an  order  has  been  made,  or  against  a  person  not  a 
party  to  the  cause,  against  whom  obedience  to  an  order  can  be 
enforced."  Notice  of  the  application,  when  required,  should  be 
served  personally  upon  the  person  thereby  affeeted.i"  If  a  party 
conceals  himself  to  avoid  personal  service  of  the  notice,  perhaps 
notice  may  be  served  upon  an  attorney  who  has  appeared  for 
him  in  the  proceeding  in  which  the  contempt  was  committed. ^^ 
In  the  case  of  a  foreign  corporation,  it  is  sufficient  to  serve  notice 
upon  the  person,  whom  it  advertises  as  its  manager  for  the  State 
and  upon  its  solicitor,  or  perhaps  upon  its  counsel  in  the  orig- 


6  Ibid. 

6  Supra,  §  430. 

7  Gompers  v.  Buck  Stove  &  Eange 
Co.,   221   U.   S.  418,   55  L.  ed.   797. 

8  Bradstreet  Co.  v.  Bradstreet  's 
Collection  Bureau,  0.  C.  A.,  249 
Ped.  956. 

9Eq.  Eule  8.  See  In  re  Steiner, 
195  Fed.  299. 

10  Worcester  v.  Truman,  1  Mc- 
Lean, 483;  Fischer  v.  Hayes,  6  Fed. 
63.  Six  days'  notice  has  been  held 
to  be  reasonable.  American  Const. 
Co.  V.  Jacksonville,  T.  &  K.  Ey.  Co., 
52  Fed.  937.  Where  the  notice 
named  a  defendant  corporation 
"and  its  officers"  as  the  objects  of 


the  contempt  proceedings,  without 
specifying  the  individual  officers,  it 
•was  held  that  any  officer  served 
with  the  notice  might  be  attached. 
American  Const.  Co.  v.  Jackson- 
ville, T.  &  K.  Ey.  Co.,  52  Fed.  937. 

11  Equity  Eule  10.  See  King  v. 
McLean  Asylum  of  M.  G.  Hospital, 
C.  C.  A.,  64  Fed.  325.     Supra,  §  428. 

12  Gray  v.  Chicago,  I.  &  N.  E. 
Co.,  1  Woolw.  63;  Hollingsworth  v. 
Duane,  Wall.  C.  C.   141. 

13  Eureka  L.  &  Y.  C.  Co.  v.  Su- 
perior Ct.  of  Yuba  County,  116  U. 
S.  410,  418,  29  L.  ed.  671;  supra, 
§165. 


§431J 


CIVIL    CONTEMPT    PROCEEDINGS 


2U:i 


inal  suit.^*  M  is  the  safer  practice  to  serve  notice  upon  the  per- 
son, whom  it  has  authoi-ized  to  accept  serv-iee  of  process  against 
it  within  the  State.^^ 

Several  proceedings  may  be  issued  to  compel  obedience  to  the 
same  order.^^ 

The  proceeding  may  be  instituted  by  a  person  not  a  party  to 
the  cause  in  whose  favor  an  order  has  been  made." 

In  the  English  Court  of  Chancery  a  party  in  contempt  could 
not  move  for  any  other  purpose  than  to  discharge  the  contemi)t 
proceedings  or  to  expunge  scandal  from  the  record  ;^8  and  in 
such  eases  he  could  only  apply  by  petition.i^  The  usual  rule  in 
the  Federal  courts  is  that  he  is  only  debarred  from  applications 
which  are  not  of  strict  right  but  are  matters  of  favor  in  the  dis- 
cretion of  the  court,20  such  as  an  application  to  open  a  default.^i 
and  that  his  answer  cannot  be  stricken  from  the  record,  nor  can 
he  be  denied  a  hearing.22  The  Court  of  Appeals  of  the  District 
of  Columbia  has  held  that  a  party  whom  the  record  shows  to  be 
apparently  in  contempt  of  the  court,  although  he  has  not  been  so 
adjudicated,  will  not  be  permitted  to  argue  an  appeal.23 

Where  proceedings  are  civil  in  their  nature  the  respondent  can 
not  bo  arrested  nor  removed  from  another  district  to  that  in 
which  the  proceedings  were  instituted."*  Where  the  defendant 
had  been  extradited  upon  a  criminal  charge,  it  was  held  that  he 
could  not  be  attached  in  civil  proceedings  for  contempt.^s 

It  has  been  held  that  the  respondent  may  be  compelled  to  testi- 


14  Wcstinghouse  Air  Brake  Co.  v. 
Christenscn  Eug.  Co.,  ]30  Fed.  7:^5. 
16  See    §§  164c,   213   supra. 

16  Gordon  v.  Tuico-Halvab  Co., 
C.  C.  A.,  247  Fed.  487;  Bradstroet 
Co.  V.  Bradstreet's  Collection  Bu- 
reau, C.  C.  A.,  249  Fed.  958. 

17  U.  S.  Envelope  Co.  v.  Trauso 
Paper  Co.,  221  Fed.  79;  Del.  Lao. 
&  W.  R.  E.  Co.  V.  Franks,  C.  C.  A., 
230  Fed.  988. 

18  Everett  v.  Pyrthergch,  12  Sim. 
363. 

19  Loed  Eldon  v.  Nicholson  v. 
Squire,   16  Vcs.   259,   260. 

ZOHovey  v.  Elliott,  167  U.  S. 
409,  42  L.  ed.  215. 


21  Ellingwood  v.  Stevenson,  4 
Sandf.  Ch.  (X.  Y.)   366. 

22  Hovey  v.  Elliott,  167  U.  S.  4tl9, 
42  L.  od.  215;  Sibley  v.  Sibley.  76 
App.  Div.  (N.  Y.)  132,  136.  Con- 
tra,  Walker  v.  Walker,  82  N.  Y.  260; 
Pickett  v.  Ferguson,  45  Ark.  177, 
191.  See  Bennett  v.  Bennett,  208 
r.  S.  505,  52  L.  ed.  .590. 

23  Early  v.  Early,  D.  C.  Ct.  App. 
261   Fed.  1003. 

24Mitcliell  v.  Dexter,  C.  C.  A., 
L'44   Fed.  926. 

£5  Smitli  V.  Government  of  Ian:'! 
Zone,  C.   C.   A.,  249  Fed.   272. 


2144 


ENFORCEMENT  OF  DECREES  AND  ORDERS 


§431 


fy  against  himself  ^^  although  not  to  acts  which  are  in  themselves 
criminal.^'''  The  investigation  will  not  be  limited  because  of  a 
contention  that  relevant  evidence  will  disclose  confidential  rela- 
tions between  the  respondents  and  their  customers  and  enable  the 
petitioners  to  take  business  away  from  them.^* 

It  is  the  better  practice  not  to  try  the  case  upon  affidavits  but 
to  take  oral  testimony  before  a  master  or  examiner.^^ 

The  complainant  is  entitled  to  contradict  the  testimony  of  th'^» 
defendant's  employees  although  he  called  and  examined  them.^® 

Witnesses  may  be  examined  before  a  special  examiner  ap- 
pointed to  take  testimony  within  and  without  the  district  where 
the  proceeding  is  instituted.^^  Where  the  examination  is  im- 
properly conducted  the  application  for  relief  should  be  made  to 
the  court  in  the  jurisdiction  where  the  examination  is  being  con- 
ducted and  not  to  that  which  ordered  the  taking  of  the  testi- 
mony.^^ 

Where  the  contempt  consists  in  disobedience  to  an  order  direct- 
ing the  payment  of  money,  the  burden  is  upon  the  respondent  to 
prove  his  inability.'^  In  the  absence  of  a  denial,  machines  or 
articles  sold  under  the  same  name  as  those  the  sale  of  which  was 
enjoined,  will  be  presumed  to  be  of  the  same  character.^*  The 
court  cannot  punish  a  contempt  by  striking  out  an  answer  or  by 
refusing  a  hearing  upon  the  merits. ^^ 

A  State  statute  regulating  the  practice  in  contempt  proceed- 
ings does  not  afiPect  the  practice  in  the  Federal  courts,  far  as 
civil  proceedings  are  concerned. ^^ 


26  Merchants '  Stock  &  Grain  Co. 
V.  Board  of  Trade,  C.  C.  A.,  201 
Fed.  20,  28;  State  v.  Sieber,  49 
Oregon,  1;  88  Pac.  313;  Patterson 
V.  Wyoming  Valley  District  Council, 
31  Pa.  Superior  Ct.  112  (appeal  dis- 
missed by  Supreme  Court). 

27  State  V.  Sieber,  49  Oregon,  1 ; 
88  Pac.  313;  Gompers  v.  Bucks 
Stove  &  Eange  Co.,  221  U.  S.  418, 
31  Sup.  Ct.  492,  55  L.  ed.  797;  34 
L.E.A.    (N.S.)    74. 

28  Board  of  Trade  v.  Tucker,  202 
Fed.  288,  see  supra,  §  343. 

29  Merchant 's  S.  &  G.  Co.  v.  Board 
of   Trade,   C.    C.   A.,   201   Fed.   920. 


30  Board  of  Trade  v.  Tucker,  202 
Fed.  288. 

31  Ibid. 

32  Ibid. 

33  Cutting  V.  Van  Fleet,  C.  C.  A., 
252  Fed.  100. 

34Stahl  V.  Ertel,  62  Fed.  920; 
Stebhins  v.  Duncan,  108  U.  S.  32, 
48,  27  L.  ed.  641,  647;  Brown  v. 
Metz,  33  111.  339,  85  Am.  Dec.  277. 

35Hovey  v.  Elliott,  167  U.  S.  409, 
42  L.  ed.  215,  supra,  §  251. 

36  Searles  v.  Worden,  13  Fed. 
716. 


§431 


CIVJL    CONTEMPT    rROCEEDrNGS 


2145 


Where  it  is  a  doubtful  (luestion  of  law  whether  the  acts,  of 
which  complaint  is  made,  constitute  a  violation  of  the  injunction, 
a  motion  to  punish  the  same  for  contempt  will  be  denied.  The 
court  will  not  try  in  such  a  })roceeding  a  difficult  question  as  to 
the  infringement  of  a  patent.^'  When  the  contempt  charged  con- 
sists in  the  use  of  a  machine  which  has  been  substantially  altered 
so  as  to  differ  from  that  ])ut  in  evidence  in  tlic  suit,^^  or  in  tlic 
use  of  a  new  device'*  the  application  will  usually  be  denied  and 
the  patentee  must  seek  his  remedy  by  a  supplemental  bill  ^  oi-  l)y 
a  new  suit.'*^  Wlicn  llie  alleged  infringer  relies  upon  a  new  pat- 
ent not  considered  before  the  decree  Avas  entered,  the  motion  will 
usually  be  denied  until  there  has  been  an  adjudication  as  to  the 
effect  thereof.*^  When,  however,  the  change  is  merely  colorable 
proceedings  to  punish  for  contempt  because  of  its  use  may  be 
sustained.*^  Although  the  court  even  then  in  its  discretion  may 
compel  the  complainant  to  apply  for  a  new  injunction  by  a  sup- 
plemental bill.** 


37  California  Paving  Co.  v.  Moli- 
tor,  113  U.  S.  609,  618,  28  L.  ed. 
1106,  1109;  Lirldle  v.  Cory,  7 
Blatehf.  1;  Welling  v.  Trimming 
Co.,  2  Ban.  &  A.  1;  Buerk  v.  Im- 
haeuser,  2  Bann.  &  A.  46.5;  Fed. 
Cas.  No.  2,108;  Ondcrdonk  v.  Fan- 
ning, 2  Fed.  568;  Smith  v.  Halk- 
yard,  19  Fed.  602;  Wirt  v.  Brown, 
30  Fed.  187;  Temple  Pump  Co.  v. 
Mfg.  Co.,  31  Fed.  292;  Howard  v. 
Mast,  33  Fed.  867;  Lilienthal  v. 
Wallach,  37  Fed.  241 ;  Pa.  Diamond 
Co.  V.  Simpson,  39  Fed.  284;  Tniax 
V.  Detweiler,  46  Fed.  117,  118;  En- 
terprise Mfg.  Co.  V.  Sargent,  48 
Fed.  453;  Mack  v.  Levy,  49  Fed. 
857;  Accumulator  Co.  v.  Consol. 
Elect.  Storage  Co.,  53  Fed.  793, 
795;  Bonsack  Mach.  Co.  v.  National 
Cigarette  Co.,  64  Fed.  858;  Interna- 
tional Register  Co.  v.  Recording 
Fare  Register  Co.,  125  Fed.  790. 
For  a  case  where  the  construction 
])iit  upon  the  patent  hy  another 
court  was  followed,  see  Accumulator 


Co.   V.    Consol.    El.    Storage   Co.,    53 
Fed.  793. 

38  Rajah  Auto  Supply  Co.  v. 
Grossman,  C.  C.  A.,  207  Fed.  84; 
Crown  Cork  &  Seal  Co.  v.  Ameri- 
can Cork  Specialty  Co.,  C.  C.  A., 
211  Fed.  650;  Frank  F.  Smith  Metal 
Window  Hardware  Co.  v.  Yates,  C. 
C.  A.,  244  Fed.  793. 

39  Individual  Drinking  Cup  Co.  v. 
Public  Service  Cup  Co.,  234  Fed. 
653;  Charles  Green  Co.  v.  Henry  P. 
Adams  Co.,  C.  C.  A.,  247  Fed.  485. 

40,S'h;>»v/.   §S  231.  389a. 

41  Supra.   §  389a. 

42  Charles  Green   Co.   v.    Henry    1'. 
Adams  Co.,  C.  C.  A.,  247  Fed.  485, 
486.     But  see  Gordon  v.  Turco-Hal 
vah   Co.,   233   Fed.   430,  aff'd  C.  C. 
A.,  247  Fed.  487. 

43  Frank  F.  Smith  Metal  Window 
Hardware  v.  Yates,  C.  C.  A.,  244 
Fed.  793;  Gordon  v.  Turco-Halvali 
Co.,  233  Fed,  430,  aff'd  C.  C.  A., 
247  Fed.  487. 

44Xat.      Metal      Molding      Co.      v. 


2146 


ENFORCEMENT   OF   DECREES  AND  ORDERS 


[§431 


When  the  defendant  appears  in  reply  to  an  order  to  show 
cause  w]i3'  he  should  not  be  punished  for  violation  of  an  injunc- 
tion, the  court  is  not  limited  in  granting  the  relief  to  that  speci- 
fied in  the  prayer  of  the  applicant.*^ 

The  usual  relief  afforded  by  the  court  is  a  fine  or  imprisonment 
until  compliance  is  made  with  the  order  violated.*^  The  only 
proper  punishment  is  a  fine  measured  by  the  pecuniary  injuries 
sustained  *'^  and  imprisonment  until  that  fine  is  paid.*^  Im- 
prisonment for  a  specified  term  cannot  be  imposed.^  The  court 
may  make  a  preliminary  order  directing  a  fine,  determining  the 
principles  with  regard  to  which  its  amount  should  be  estimated, 
and  directing  either  a  reference  to  a  master  to  determine  the 
amount  or  a  submission  of  affidavits  upon  that  point  to  the 
court.5®  In  a  civil  proceeding,  the  court  orders  the  fine  to  be 
paid  to  the  party  injured,^!  and  may  direct  the  offender  "to 
stand  committed  till  paid. ' '  ^^ 

When  an  application  is  made  to  compel  the  payment  of  money 
it  is  the  safer  practice,  not  to  enter  an  order  directing  the  pay- 
ment and  that  in  default  thereof,  the  party  should  be  committed, 
but  to  make  the  order  specify  the  time  in  which  the  payment 
should  be  made  and  in  case  of  default  to  enter  an  order  upon 
notice  imposing  a  punishment  for  the  contempt. ^^ 

An  order  declaring  that  the  defendant  is  in  contempt  of  an 
injunction  forbidding  the  use  of  his  name  and  directing  that 
uidess  the  name  is  removed  from  his  door  and  from  the  telephone 
directory  within  ten  days  thereafter,  further  application  may  be 


Tubular  Woven  Fabric  Co.,  C.  C. 
A.,  239  Fed.  907;  Charles  Green 
Co.  V.  Harry  P.  Adams  Co.,  C.  C. 
A.,  247  Fed.  485;  Gordon  v.  Turco- 
Halvah  Co.,  C.  C.  A.,  247  Fed.  487, 
affirming  233  Fed.  430. 

45  Bradstreet  Co.  v.  Bradstreet  's 
Collection  Bureau,  C.  C.  A.,  249  Fed. 
958. 

46  Ibid. 

47  Gompers  v.  Bucks  Stove  & 
■Rang;e  Co.,  221  IT.  S.  418,  o-j  L. 
ed.   797,  34  L.E.A.    (N.S.)    874. 

48  Ibid.     Fischer  v.  Hayes,  6  Fed. 
63;  New  Jersey  Patent  Co.  v.  Mar 
tin,   186  Fed.   513. 


49  Gompers  v.  Bucks  Stove  & 
Range  Co.,  221  U.  S.  418,  55  L.  ed. 
787,   34  L.R.A.    (N.S.)    874. 

50  Fischer  v.  Hayes,  6  Fed.  63. 

51  Searles  v.  Worden,  13  Fed.  716; 
8.  c,  as  Worden  v.  Searles,  121  U. 
S.  14,  30  L.  ed.  853;  Be  Mullee,  7 
Blatchf.  23;  Douldeday  v.  Sherman, 
8  Blatchf.  45;  Bridges  v.  Sheldon, 
7  Fed.  747. 

52  Fischer  v.  Hayes,  6  Fed.  6.'. ; 
U.  S.  E.  S.,   S  725. 

63i?f  Cole,  C.  C.  A.,  163  Fvd. 
180,   183. 


431] 


CIVIL    C()N"n:.MPT    I'ROCEEDIXGS 


214'i 


made  to  the  court,  was  licld  to  1)C  a  decree  upon  coiiteiupt  ap- 
pealable, enforceable  by  an  innnediate  attachment,  and  not  by 
a  .sni)i)lementary  decree.^* 

When  an  injunction  against  the  infringement  of  a  patent  has 
been  violated,  the  tine  may  include  the  profits  made  by  the  de- 
fendant through  his  contemptuous  acts.^^ 

The  burden  of  pi-oof  is  upon  tlie  defendant  to  show  that  he 
is  entitled  to  a  credit  for  depreciation.^^  He  is  ordinarily 
entitled  to  a  credit  for  the  expenses  of  advertising  the  in- 
fringing article  and  for  an  a})portioinnent  of  his  general  expenses 
for  his  taxes  and  insurance.^'  Where  no  profits  or  damages  are 
shown,  the  amount  of  the  tine  is  usually  limited  to  the  counsel 
fees  and  the  disbursements  of  the  defendant  in  the  <-ontempt 
proceedings.^^  A  reasonable  counsel  fee  for  the  civil  contempt 
proceedings  is  almost  always  included  in  the  fine  imposed.^* 

The  reasonable  expenses  of  the  proceedings  are  also  included 
and  the  court  may  allow  the  expense  of  copies  of  stenographers' 
minutes  which  are  not  taxable ;  ^®  but  where  the  record  was  un- 
necessarily voluminous  and  the  expenses  so  large  that  a  fine  com- 
mensurate therewith  would  have  been  inordinate,  complete  re- 
imbursement to  the  plaintiff  was  not  granted.^^ 


54  Bradstreet  Co.  v.  Bradstreet  's 
Collection  Bureau,  C.  C.  A.,  249 
Fed.  950,  9.'>9. 

66  Ibid.      But   wlieie,  after   tlie    in 
stitution    of    eoiiteiu])t     proceed  in^js 
for    violation    of    a    jireliminary    in 
junction,    a    deci'ee    was    entered    liv 
consent  in  favor  of  tlie  complainants 
upon    their    waiver    of    all    damaije- 
and  costs;  it  was  held  that  the  coun- 
sel fees  and   disl)ursenients  included 
in    the   fine   should   not  exceed   thosv' 
necessitated    by    the    contempt    pro- 
ceedings.    New  Jersey  Patent  Co.  v 
Martin,    186    Fed.    .IIH,    T)]?;    Boar.l 
of    Trade    of    City    of    (Miica«io     v. 
Turker,   -22]    Fed.   :;().1. 

66  Gordon  v.  Turco-Iialvah  Cu., 
C.  C.  A.,  247  Fed.  487,  see  suiira. 
§S  .'^89b,    :?89c. 

67  Ibid. 

68('heatliam      Electric      Switching; 


Device  Co.  v.  Transit  Development 
Co.,  197  Fed.  56.3;  Union  Tool  Co. 
v.  U.  S.,  C.  C.  A.,  262  Fed.  431. 
But  see  Victor  Talking  Maeh.  Co. 
V.  S  mora  Phonogra]>h  Co.,  191 
Fed.  988.  Wliere,  in  such  a  case, 
no  jiunishment  was  imposed  ami  the 
contempt  consisted  in  the  institu- 
tion of  a  suit;  the  fine  should  in- 
clude the  expenses  of  the  defense 
of  such  suit,  including  reasonable 
counsel  fees  to  be  paid  to  the  party 
against  whom  the  suit  was  lirought. 
Bridges  v.  Sheldon,   7    l\'<i.    17. 

69Stahl  V.  Ertel,  (J2  Fe.j.  92(t: 
Be  DeForest  Wireless  Tel.  Co.,  1.'4 
Fed.  81. 

60  Gordon  v.  Turco  llalvah  Co.. 
C.   C.   A.,  247  Fed.  487,  492. 

61  Board  of  Trade  v.  Tucker,  221 
Fed.  aOO,  304,  aff'd  C.  C.  A.,  221 
Fed.     305,     306;     where    a     fine    of 


2148 


ENFORCEMENT   OF   DECREES  AND   ORDERS 


I  §432 


The  complainant  is  also  entitled  to  the  costs  of  the  proceed- 
ings.^2  These,  unless  included  in  the  fine,  cannot  be  collected 
by  attachment  but  only  upon  execution.^^  Where  the  proceeding 
is  instituted  by  creditors  for  the  benefit  of  the  estate  of  a  bank- 
rupt or  insolvent  the  court  may  direct  that  part  of  the  fine  be 
paid  to  them  as  partial  reimbursement  for  their  expenses.^* 

The  expense  of  watching  the  defendant  to  ascertain  whether 
he  was  violating  the  injunction  and  of  securing  evidence  of  the 
contempt  may  be  included  in  the  fine.^^ 

Upon  the  hearing  of  an  application  to  punish  a  defendant  for 
contempt  in  violating  an  injunction  against  infringement,  the 
court  ordered  the  marshal  to  take  the  infringing  machines  into 
his  possession  and  retain  them  until  the  final  determination  of 
the  suit.^^  When  the  contempt  consisted  in  building  a  railroad, 
in  violation  of  an  injunction,  the  marshal  was  ordered  to  take 
up  the  railroad  at  the  expense  of  the  guilty  party .^^ 

The  settlement  and  discontinuance  of  a  suit  in  which  an  in- 
junction has  been  granted  is  a  defense"  to  civil  proceedings  to 
punish  for  contempt  a  violation  of  an  injunction  therein 
granted.^*  It  seems,  that  after  the  reversal  of  the  order  that  has 
been  violated,  civil  proceedings  for  contempt  cannot  be  main- 
tained,®® but  where  there  has  been  no  appeal,  the  validity  of  the 
patent  for  want  of  invention  and  for  anticipation  cannot  be  con- 
sidered in  the  contempt  proceedings.'® 

§  432.  Writ  of  attachment  against  the  person.  An  attach- 
ment against  the  person  is  a  Avrit  directed  to  the  marshal  of  the 
court,  sealed  and  bearing  teste  in  tlie  same  manner  as  a  writ  of 


I 


of    Trade    of    City    of 
Tucker,    C.    C.    A.,    221 


$1800  was  imposed,  although  there 
was  evidence  that  the  contempt  pro- 
ceedings cost  the  complainants  over 
$14,000. 

62  Ibid. 

63  Board 
Chicago  V. 
Fed.   305. 

64  Morehouse  v.  Giant  Powder  Co., 
C.  C.  A.,  206  Fed.  24. 

65  Delaware  L.  &  W.  E.  Co.  v. 
Frank,  C.  C.  A.,  230  Fed.  988; 
Cheatham  Electric  S.  D.  Co.  v.  Tran- 
sit Development  Co.,  261  Fed.  792, 
796. 


66  Underwood  Typewriter  Co.  v. 
Elliott-Fischer  Co.,  156  Fed.  588. 

67  Indianapolis  &  N.  W.  Traction 
Co.  v.  Consolidated  Traction  Co., 
125  Fed.   247,  250. 

68  Gompers  v.  Bucks  Stove  & 
Eange  Co.,  221  U.  S.  418,  55  L. 
ed.  797,  .34  L.R.A.  (N.S.)  874.  But 
see  N.  ,1.  Patent  Co.  v.  Martin,  186 
Fed.  513. 

69  S.  Anargyros  v.  Anargyros  & 
Co.,   191   Fed.   208. 

70  Campbell  v.  Magnet  Light  Co., 
175  Fed.  117. 


§433]  EXECUTION    OF    WRIT    OF    ATTACHMENT  2149 

•subpoena,^  directing  iiim  to  attach  the  body  of  the  person  named 
therein,  and  to  safely  keep  the  same,  so  that  he  can  produce  the 
person  or  persons  thus  attached  in  court  at  a  certain  day  termed 
the  return  day  of  the  writ,  or  until  the  further  order  of  the 
court. '^  The  writ  must  be  indorsed  with  the  special  reason  for 
which  it  is  issued,  and  also  with  the  name  and  address  of  the 
solicitor  of  the  party  issuing  it.^ 

The  writ  may  be  issued  either  in  vacation  or  in  term ;  and  may 
be  returnable  immediately;  provided,  at  least,  that  the  party 
against  whom  it  is  issued  then  dwells  or  is  within  twenty  miles 
of  the  place  of  holding  the  court.  Otherwise,  if  the  English  prac- 
tice is  followed,  a  period  of  fifteen  days  between  the  teste  and 
the  return  might  be  required.* 

The  writ  of  attachment  cannot  ])e  addressed  to  any  marshal 
beyond  the  territorial  jurisdiction  of  the  court  or  in  another  dis- 
trict in  a  diflferent  State,^  unless  it  directs  the  arrest  of  a  witness 
who  lives  within  one  hundred  miles  of  the  place  of  trial  and  has 
disobeyed  a  subpoena.  In  the  latter  case  it  should  be  directed  to 
the  marshal  of  the  district  where  the  witness  resides.® 

§  433.  Execution  of  writ  of  attachment.  The  first  thing  to  be 
done  after  the  writ  has  been  issued  is  to  deliver  it  to  the  marshal 
to  whom  it  is  directed,  or  to  one  of  his  deputies  authorized  by 
him  to  receive  such  writs.^  Although  the  writ  is  alwa3-s  directed 
to  the  marshal  of  the  judicial  district  within  which  it  is  to  be 
executed,^  it  is  usually  executed  by  one  of  his  deputies. 

The  marshal  and  his  deputy  can  only  execute  the  writ  within 
the  district  for  which  he  has  been  appointed ;  ^  and  not  then 
against  a  person  who  has  been  brought  there  by  force  or  fraud, 
or  under  such  circumstances  as  would  make  it  improper  to 
serve     a     subpoena     upon     him;*     and     probably     not     upon 

§432.     ISee   U.   S.    R.    S.,    8  911.  :VM;      Sommerville     v.     French,      1 

2Braithwaite's  Pr.   159-161.  Cranch,  C.  C.  A.,  474. 

3Braithwaite's   Pr.    1.59.  S  4S;i     1 U.   S.    R.   S.,    §787. 

4  Acts  of  11  Geo.  IV  and  1   Wm.  2  U.  S.  R.  S.,   §  787. 

IV.,  ch.   36,   §  15,  subd.  3.  3  U.  S.  R.  S.,  §  787;  In  the  Matter 

6Ee    Manning,    44    Fed.    275,    in  of  Allen,   13   Blatchf.   271;   Voss   v. 

which   the    author    was   counsel;    U.  Luke,    1    Cranch,    C.    C.    331;    Soni- 

S.  V.  Jacobi,  4  Am.  Law.  T.  R.,  148,  merville  v.  French,  1   Cranch,  C.  C. 

151.  474. 

6  Voss   V.    Luke,    1    Cranch,   C.    C.  4  In     the     Matter     of     Alien,     13 

Fed.  Prae.  Vol.  11—65 


2150  ENFORCEMENT  OF  DECREES  AND  ORDERS  [§  433 

Sunday,^  nor  usually  in  the  court-room,^  except  for  an  offense 
committed  in  the  presence  of  the  court.'^  In  the  case  of  a  recalci- 
trant witness  who  resides  out  of  the  district  but  within  one 
hundred  miles  of  the  place  of  trial,  it  was  held  that  he  might  be 
arrested  under  a  writ  issued  by  the  trial  court  addressed  to  the 
marshal  of  the  district  of  the  residence  of  the  witness.^  It  has 
been  held :  that  in  other  cases  this  cannot  be  done ;  ^  but  that,  on 
presentation  of  a  certified  copy  of  the  contempt  proceedings  and 
of  the  writ  of  attachment,  the  district  attorney  of  the  district 
where  the  delinquent  is,  may  obtain  from  a  commissioner  of  that 
district  a  warrant  for  the  arrest  of  the  party  in  contempt,  who 
is  then  entitled  to  an  examination,  pending  whicli  he  may  be  dis- 
charged on  bail ;  and  that  if  the  commissioner  decides  to  hold  the 
accused  the  judge  of  that  district  may  issue  a  warrant  for  his 
removal  as  in  other  criminal   cases. ^® 

If  the  delinquent  be  already  in  custod}^,  either  upon  criminal 
sentence  or  civil  process,  no  further  arrest  is  necessary;  but  the 
marshal  should  give  notice  of  the  attachment,  which  notice  is 
called  a  detainer,  to  the  keeper  or  jailer  in  whose  custody  he  is.^^ 

If  a  return  day  be  appointed  in  a  writ,  and  it  be  issued  to  en- 
force obedience  to  an  interlocutory  order,  the  marshal  may,  but 
is  not  obliged  to,  allow  the  delinquent  to  go  at  large  with  or  with- 
out security  for  his  surrender  to  him  upon  the  return  day.^^  If 
the  delinquent  do  not  then  surrender  himself  to  the  marshal's 
custody,  the  latter  and  his  bondsmen  are  responsible  for  all  dam- 
ages which  the  court  shall  determine  have  resulted  therefrom  to 
the  party  at  whose  instance  the  writ  was  issued.^^  It  seems,  how- 
ever, that  this  cannot  be  done  when  the  writ  is  issued  for  a  re- 
fusal to  perform  a  specific  act  in  obedience  to  a  decree.^* 

Blatchf.  271.  And  see  authorities  456,  462;  Be  Manning,  44  Fed.  275. 
cited  under  §  167,  supra.     Cf.  Wroe  10  U.  S.  v.  Jaeobi,  4  Am.  L.  T.  K. 

V.   Clayton,   16   Simons,   183.  148,  151,  152;  Re  Manning,  44  Fed. 

6  29  Car.  II,  ch.  12,  §  6.     And  see  275. 

authorities  cited  under  §  163.  H  Trotter  v.   Trotter,   Jacob,  533. 

6U.  S.  V.  Scholfield,  1  Cranch,  C.  12  Morris    v.    Hayward,    6    Taunt. 

C.  130;    Davis  v.   Sheron,  1  Cranch,  569;    Studd  v.  Action,   1  H.   Black- 

C.  C.  287.  stone,  468. 

7  Ibid.     Cf.  §  428,  mpra.  13  Moore  v.  Moore,  25  Beav.  8 ;  U. 
SVoss   V.   Luke,   1   Cranch,   C.    C.  S.  R.  S.,  §§783-786. 

331.     But  see  Henry  v.  Ricketts,  1  14  Rule    8;    Cowdry    v.    Cross,    24 

Cranch,  C.  C.  580.  Beav.  445. 

9  Ex  parte  Graham,  3  Wash,  C.  C. 


§  433]  EXECUTION    OP   WRIT    OP    ATTACHMENT  2151 

According  to  an  old  writer,  when  the  marshal  "has  taken  up 
the  body  he  has  paid  obedience  to  the  writ,  though  he  does  not 
actually  bring  him  up  to  the  court ;  because  the  contempt  only  in- 
duces a  commitment,  which  is  satisfied  by  imprisonment  in  the 
county  gaol."^^  If,  however,  he  be  specially  ordered  to  bring 
the  contemnor  before  the  court,  he  must  obey. 

Upon  the  return  day  of  the  writ  the  marshal  should  make  a 
return  thereto.  He  cannot  detain  the  party  named  in  the  writ 
after  the  return  day,  unless  by  the  court's  orders.^^ 

There  are  three  ordinary  returns  upon  a  writ  of  attachment: 
First  if  the  delinquent  cannot  be  arrested,  the  mar.shal  returns. 
"The  wMthin-named  John  Stiles  is  not  found  in  my  bailiwick." 
This  is  termed  a  non  est  inventus,  and  upon  it  further  process  of 
contempt  is  grounded.  Second,  if  the  delinquent  has  been  ar- 
rested, but  the  marshal  has  either  accepted  bail  for  his  appear- 
ance or  keeps  him  in  his  own  custody,  the  return  is,  "I  have  at- 
tached the  within-named  John  Stiles,  as  within  I  am  commanded, 
whose  body  I  have  ready."  This  is  called  accepi  corpus.  Third, 
if  the  marshal  has  arrested  the  delinquent  and  lodged  him  in  jail, 
or,  finding  him  there,  has  lodged  a  detainer  against  him,  the 
marshal  returns,  ' '  I  have  attached  the  within-named  John  Stiles, 
whose  body  remains  in  [naming  the  jail  or  prison]  in  my  cus- 
tody. "^"^ 

Although  the  return  is  regularly  made  by  the  marshal,  no  mat- 
ter by  whom  the  writ  has  been  executed,  it  will  not  be  void  if 
made  by  his  deputy.^*  If  the  marshal  refuse  to  make  any  return 
he  may  be  compelled  to  do  so,  by  means  of  an  order  to  show  cause 
followed  by  an  attachment  against  him.^® 

When  the  marshal  or  his  deputy  is  a  party  to  a  cause,  or  prob- 
ably when  a  writ  of  attachment  is  issued  against  either  of  them, 
the  writs  and  precepts  therein  must  be  directed  to  such  disinter- 
ested person  as  the  court  or  any  justice  or  judge  thereof  may 
appoint,  and  the  person  so  appointed  may  execute  and  return 
them.20  In  such  a  case  the  person  serving  the  process  should 
make  affidavit  thereof.^^ 

16  Gilbert's   Ch.   88.  19  U.    S.    v.    Scroggins,    3    Woods, 

16  Ex  parte  Burf  ord,  1  Craneh,  C.       529 ;    Daniell  's  Oh.  Pr.  470. 
C.   456.  20  U.    S.    E.    S.,    §923;    Eq.   Bule 

IVRraithwaite's  Pr.  272,  281.  15. 

18  Spafford  v.  Goodcll,  3  McLean,  21  Eq.  Rule  15. 

97. 


2152 


ENFORCEMENT   OF   DECREES  AND  ORDERS 


[§434 


§  434.  Review  of  commitments  for  contempt.     In  general. 

A  commitment  for  contempt  may  be  reviewed  by  habeas  corpus, 
which  is  usually  accompanied  by  the  writ  of  certiorari;  ^  in  an 
extraordinary  case,  by  the  writ  of  certiorari  alone ;  ^  by  M^rit  of 
error  ^  or  appeal ;  *  and,  in  bankruptcy,  possibly  by  a  petition  of 
review.^  The  validity  or  propriety  of  any  part  of  the  order  can- 
not be  reviewed  upon  a  mandamus  to  compel  the  Circuit  Court  of 
Appeals  to  review  the  same.^  A  Circuit  Court  of  Appeals  has 
refused  to  issue  a  writ  of  prohibition  to  stay  contempt  proceed- 
ings in  a  Circuit  Court,  in  a  case  where  its  appellate  jurisdiction 
had  not  been  invoked  by  appeal  or  writ  of  error.''' 

§  435.  Review  by  habeas  corpus  of  commitment  for  contempt. 
If  a  commitment  for  contempt  is  void,  the  prisoner  may  be  dis- 
charged by  the  writ  of  habeas  corpus;'^  but  not  for  irregular- 
ities,^ nor  for  the  erroneous  construction  of  a  statute,^  when  the 
court  had  jurisdiction  to  grant  the  order. 

The  writ  will  also  issue  in  extraordinary  cases*  such  as  the 
improper  commitment  of  a  witness  for  perjury.^ 

An  editor  was  discharged,  upon  a  writ  of  habeas  corpus,  from 
a  commitment,  because  of  a  criticism  of  a  court  in  a  newspaper, 
since  that  offense  was  not  included  in  the  statute.^    When  the 


§434.     \  Infra,   §§  435,  461. 

ZEe  Chetwood,  165  U.  S.  443,  41 
L.  ed.  782.  There  the  Supreme 
Court  allowed  a  writ  of  certiorari 
unaccompanied  by  the  writ  of 
habeas  corpus,  to  bring  up  the  rec- 
ord, so  that  an  order  might  be  re- 
vised and  annulled,  which  adjudged 
a  party  to  a  suit  and  his  attorney 
guilty  of  contempt,  and  directed 
them  to  dismiss  one  writ  of  error 
and  to  refrain  from  prosecuting  an- 
other.    See  infra,  §  460. 

i  Infra,   §436. 

ii  Infra,    §437. 

6  Be  Cole,  C.  C.  A.,  163  Fed.  180, 
183,  90  C.  C.  A.  50,  53,  23  L.R.A. 
(N.S.)  255;  Be  Goodrich,  C.  C.  A., 
184  Fed.  5,  7;  infra,  §438. 

6  i?e  Merchants'  Stock  &  (Jrain 
Co.,  223  U.  S.  639,  56  L.  ed.  584. 


IBe  Paquet,   C.   C.   A.,   114   Fed. 

437. 

§  435.  1  Ex  parte  Fisk,  113  U. 
S.  713,  28  L.  ed.  1117;  Ex  parte 
Terry,  128  U.  S.  289,  32  L.  ed.  405. 
See   §§461-467,   infra. 

2  Savin,  Petitioner,  131  U.  S.  267, 
279,  33  L.  ed.  150,  154;  Stevens  v. 
Fuller,  136  U.  S.  468,  478,  34  L.  ed. 
461,  463;  U.  S.  v.  Pridgeon,  153 
U.  S.  48,  38  L.  ed.  631,  636;  Ex 
parte  Davis,  112  Fed.  139;  Ex  parte 
O'Neal,  125  Fed.  967.  See  §461, 
infra. 

3  Be  Tyler,  149  IT.  S.  164,  37  L. 
ed.  689;  Ex  parte  O'Neal,  125  Fed. 
967. 

4  Ex  parte  Hudgins,  249  U.  S. 
378,   384,  infra,   §461. 

6  Ibid. 

eCuyler  v.  Atl.  &  N.  C.  R.  Co., 
131  Fed.  95. 


§  435 J  REVIEW  BY   HABEAS   CORPUS  OF   COMMITMENT  2153 

court  has  no  jurisdiction  of  the  subject-matter  of  the  suit,  in 
which  the  decree  or  order  violated  was  made,  a  commitment 
for  violation  of  an  injunction  therein  is  void,  and  the  prisoner 
will  be  discharged  upon  a  writ  of  liubeas  corpiLs.''  It  was  so  held 
where  the  order  of  the  court  was  an  unjustifial)le  interference 
with  the  administration  of  a  decedent's  estate.*  A  party  was  dis- 
charged from  a  connnitment  for  disobedience  to  an  order  for  his 
examination  before  trial  which  was  autliorized  l)y  the  State  but 
not  by  a  Federal  statute.^ 

This  cannot  be  done,  however,  on  the  ground  that  the  court 
had  no  jurisdiction  of  the  suit,  because  there  was  no  difference 
of  citizenship  nor  Federal  (piestion  involved ;  ^°  nor  because 
process  upon  the  original  bill  has  not  been  served ;  "  nor,  in  case 
of  disobedience  to  a  subpicna  because  of  the  immateriality  of  the 
evidence  sought  to  be  elicited  or  the  insufficiency  of  the  plead- 
ings.^2  Where  the  disobedience  occurred  after  an  acquiescence 
for  over  two  years  in  the  order  attacked,  the  punishment  was  a 
small  fine,  with  imprisonment  only  until  the  fine  was  paid,  and 
it  was  admitted  at  the  argument  that  the  proceeding  was  adopted 
in  order  to  obtain  a  summary  disposition  of  the  cause  by  the  Su- 
preme Court :  it  Avas  held  that  the  writ  of  habeas  corpus  should 
not  be  allowed. ^3  Where  the  court  erroneously  imposed  both 
fine  and  imprisonment  it  was  held  that  there  could  be  no  dis- 
charge by  habeas  corpus,  until  either  the  fine  had  been  paid  or 
the  term  of  imprisonment  had  been  served,^* 

The  petition  for  the  writ  may  allege,  and  the  petitioner  may 
prove,  any  facts  not  in  contradiction  of  the  record,  which  show- 
that,  on  the  facts,  no  case  of  contempt  was  made  out.^^     It  was 

T  Ex    parte    Robinson,    C.    C.    A.,  H -Ea;    parte    Richards,    117    Fed. 

144  Fed.  835.  fi;>8. 

i  Ex  parte  'Robinson,  C.  C.  A.,  U4  12  Fairchild    v.    U.    S.,    C.    C.    A., 

Fed.  835.     The  previous  proceedings  146  Fed.  508.    But  see  supra,  §§  343, 

are   reported   as   Carrau   v.   O'Calli-  352,  354. 

gan,  C.  C.  A.,  125  Fed.  657,  60  C.  13  Ea-  parte  Simon,  208  U.  S.  144, 

C.  A.,  347;   Farrell  v.  O'Brien,  199  52  L.  cd.  429. 

U.   S.   89;    25   Sup.   Ct.    727,   50   L.  ^^  Ex  parte  Davis,   112  Fed.    13!). 

ed.  101.  15  Cuddy,    Petitioner,    131    U.    S. 

9  Ex  parte  Fisk,  113  U.  S.  713,  28  280,  33  L.  ed.  154;  Et  parte  May- 
L.  ed.  1117.  «iel<l,   HI   U.  S.   107,   llti,  :'>',   L.  od. 

10  In  re  Lennoii,   l(i(i  V.  S.  548,  41        635,   638. 
L.  ed.   1110;    Conkey  Co.  v.   Russell, 

111    Fed.    417;    Ex   parte    Richards, 
117  Fed.  65S. 


2154 


ENFORCEMENT   OP   DECREES  AND  ORDERS 


[§436 


held  Judge  will  not,  upon  the  return  of  the  writ  of  habeas  cor- 
pus, discharge  a  person  committed  by  another  Circuit  Judge ;  ^^ 
but  he  will  thus  review  a  commitment  by  a  District  Judge.^''' 

The  facts  upon  w^hich  a  commitment  is  based  can  be  brought 
before  an  appellant  tribunal  for  review  by  habeas  corpus,  accom- 
panied by  a  writ  of  certiorari}^ 

§  436.  Review  by  writ  of  error  of  commitment  for  contempt. 

A  writ  of  error  is  the  proper  method  of  reviewing  an  order 
punishing  for  contempt  a  person  not  a  party  to  the  suit.^ 

A  writ  of  error  is  the  proper  method  of  reviewing  an  order  of 
punishment  in  criminal  contempt  proceedings.^  This  is  so  when- 
ever any  part  of  the  fine  is  payable  to  the  United  States ;  ^  so  far, 
at  least,  as  that  portion  is  concerned.* 

Where  a  writ  of  error  has  been  issued  in  a  case  where  an  ap- 
peal was  the  proper  remedy,  the  writ  will  be  treated  as  if  it  were 
an  appeal.^ 

Where  a  constitutional  question  ^  or  a  jurisdictional  question 
is  at  issue,''  the  question  can  be  reviewed  immediately  by  the 
Supreme  Court  of  the  United  States. 


R. 


s. 


16  7?e  Hale,   139   Fed.   496. 

"Cuyler  v.  Atlantic  &  N.  C. 
Co.,  131  Fed.  95. 

18i?e   Watts   &   Sachs,   190   U. 
1,  47  L.  ed.  933 ;   infra,  §  466. 

§  436.  1  Bessette  v.  W.  B.  Con- 
key  Co.,  194  U.  S.  324;  Shuler  v. 
Raton  Waterworks  Co.,  C.  C.  A., 
247  Fed.  634. 

2  Matter  of  Christensen  Eng.  Co., 
194  U.  S.  458,  48  L.  ed.  1072;  Gom- 
pers  V.  Bucks  Stove  &  Range  Co., 
221  U.  S.  418,  55  L.  ed.  797,  34 
L.R.A.  (N.S.)  874;  Be  Merchants' 
Stock  &  Grain  Co.,  223  U.  S.  639, 
56  L.  ed.  584,  setting  aside  Mer- 
chants' Stock  &  Grain  Co.  v.  Board 
of  Trade,  C.  C.  A.,  187  Fed.  398; 
Sessions  v.  Gould,  63  Fed.  1001; 
Board  of  Couneilmen  v.  Deposit 
Bank,  C.  C.  A.,  127  Fed.  812;  Gar- 
rigan   v.   U.   S.,  C.   C.   A.,   163   Fed. 


16;    Swepston   v.   U.    S.,   C.    C.    A., 
201  Fed.  205. 

3  Matter  of  Christensen  Eng.  Co., 
194  U.  S.  458,  48  L.  ed.  1072;  Be 
Merchants'  Stock  &  Grain  Co.,  223 
U.  S.  639,  56  L.  ed.  584,  setting 
aside  Merchants'  Stock  &  Grain  Co. 
V.  Board  of  Trade,  C.  C.  A.,  187 
Fed.  398. 

4  Ibid.  See  Worden  v.  Searls,  121 
U.  S.  14,  26,  30  L.  ed.  853,  857. 

5  Act  of  Sept.  6,  1916,  ch.  448, 
§4,  39  St.  at  L.  727,  Comp.  St. 
1916,  §  1649a;  Shuler  v.  Raton  Wa- 
terworks Co.,  C.  C.  A.,  247  Fed. 
634. 

6  Nelson  v.  U.  S.,  201  U.  S.  92, 
50  L.  ed.  673,  where  a  witness  was 
committed  for  refusing  to  incrimi- 
nate himself. 

7Jud.  Code,  §250,  36  St.  at  L. 
1087.  See  chapter  xxxvi  on  ''Writs 
of  Error  and  Appeals,"  infra. 


§436] 


REVIEW   BY   WRIT  OF  ERROR 


2155 


Otherwise,  even  in  the  case  of  summary  proceedings,  not  begun 
bj-  information,  the  writ  of  error  is  returnable  to  the  Circuit 
Court  of  Appeals.* 

No  writ  of  error  lies  to  an  order  punishing  a  party  for  con- 
tempt when  the  proceeding  was  purely  remedial  as  between  the 
parties  to  the  suit  and  not  criminal  in  its  nature.^ 

No  constitutional  question  is  involved  in  an  order  committing 
a  district  attorney  for  contempt  in  refusing  to  comply  with  a 
prior  order  for  the  return  of  books  and  papers  which  were  held 
to  have  been  seized  by  him  in  violation  of  the  constitutional 
rights  of  the  owner.^"  Where  the  party  in  contempt  consented 
to  the  order  which  he  disobeyed,  the  point,  that  if  resisted  it 
woiild  have  been  a  violation  of  his  constitutional  rights,  cannot 
be  raised  upon  writ  of  error."  Where  the  objection  to  the  com- 
mitment for  the  commission  of  an  assault  on  an  officer  of  a  court 
for  the  purpose  of  preventing  the  discharge  of  his  duties,  was 
that,  on  the  facts,  no  case  of  contempt  was  made  out ;  it  was  held 
that  the  contention  was  addressed  to  the  merits  of  the  case,  not 
to  the  jurisdiction  of  the  court,  and  that  a  writ  of  error  im- 
mediately from  the  Supreme  Court  to  the  District  Court  of  the 
United  States  would  not  lie.i'^ 

When  the  order  was  entered  in  a  criminal  proceeding  it  may 
be  thus  reviewed  although  the  suit  in  which  the  alleged  contempt 
was  committed  has  not  terminated.^* 

An  order  denying  a  motion  to  vacate  an  order  of  commitment 
for  contempt  cannot.^* 

When  the  writ  of  error  is  returnable  to  the  Supreme  Court  of 
the  United  States  it  must  be  issued  within  three  months  after  the 
entry  of  the  order.i^    ^yhen  returned  to  the  Circuit  Court  of  Ap- 


8  Toledo  Newspaper  Company  v. 
U.  S.,  247  U.  S.  402. 

9  Hultberg  v.  Anderson,  C.  C.  A., 
214  Fed.  .349;    »upra,  §  4.'?0. 

10  Wise  V.  Mills,  220  U.  S.  549, 
55  L.  ed.  579. 

H  Brown  v.  U.  S.,  C.  C.  A.,  196 
Fed.  .351;  Gouts  v.  U.  S.,  C.  C. 
A.,   249   Fed.   595. 

12  O'Neal  V.  U.  S.,  190  U.  S.  36, 
47  L.   ed.  945;   International  Paper 


Co.  V.  Chaloux,  C.  C.  A.,  165  Fed. 
436. 

13  Gompers  v.  Bucks  Stove  & 
Range  Co.,  221  U.  S.  418,  440,  55  L. 
ed.  797,  805,  34  L.R.A.  (N.S.)  874; 
Hultberg  v.  Anderson,  C.  C.  A., 
214  Fed.  349. 

14  Gill  V.  IT.  S.,  C.  C.  A.,  202 
Fed.  502;  Shuler  v.  Ratan  Water- 
works Co.,  C.  C.  A.,  247  Fed.  634. 

16  l7ifra,  §  698. 


2156 


ENFORCEMENT    OF   DECREES    AND    ORDERS 


[§436 


peals  it  must  be  issvied  within  six  months. ^^  A  judgment  adjudg- 
ing two  persons,  who  are  jointly  charged  and  tried,  guilty  of  eon- 
tempt  for  violating  an  injunction,  although  their  acts  were  sep- 
arate, may  be  reviewed  as  to  both  on  a  single  writ  of  error.^' 

When  an  appeal  is  taken  from  an  order  in  a  case  which  prop- 
erly could  only  be  reviewed  by  a  writ  of  error,  the  proceeding 
will  be  treated  as  if  a  writ  of  error  had  been  duly  issued. ^^ 

Upon  a  writ  of  error  only  questions  of  law  can  be  consid- 
ered,^^ and  those  only  which  are  presented  upon  an  assignment 
of  error.2*  A  finding  of  fact  supported  by  competent  evidence 
can  not  be  reviewed  ^^  even  though  it  is  contended  that  it  does 
not  show  the  guilt  of  the  party  beyond  a  reasonable  doubt. ^^  The 
evidence  can  not  be  considered  unless  a  bill  of  exceptions  is  filed 
and  allowed.^^  It  has  been  said  that  the  admission  of  immaterial 
or  prejudicial  facts  is  error ;  2*  but  the  better  rule  is  otherwise.^^ 
It  has  been  held  that  an  error  in  the  admission  of  evidence  is  not 
cured  by  a  recital  in  the  charge  that  the  findings  are  based  only 
on  legal  evidence,  rejecting  the  irrelevant  and  improper  parts 
thereof,  when  what  evidence  was  disregarded  and  rejected  is  not 
indicated.2^  When  the  judgment  recited  that  the  court  took 
judicial  notice  of  the  facts  found  in  a  similar  case,  some  of  which 
findings  were  subsequently  reversed  upon  appeal,  it  was  sent  back 
for  new  findings  of  fact  in  view  of  the  opinion  in  the  former 
case.^''^     Where  the  punishment  is  based  upon  several  charges, 


16  Shuler  v.  Raton  Waterworks 
Co.,  C.  C.   A.,  247  Fed.   634. 

17  Tosh  V.  West  Kentucky  Coal 
Co.,  C.  C.  A.,  252  Fed.  44. 

18  39  St.  at  L.  727;  Shuler  v. 
Eaton  Waterworks  Co.,  247  Fed. 
639;  infra,  §687. 

WBe  Grove,  C.  C.  A.,  180  Fed. 
62;  Swepston  v.  U.  S.,  C.  C.  A.,  201 
Fed.  205. 

20  Ibid.  Assignments  that  the 
court  erred  in  entering  the  order  be- 
low and  erred  in  refusing  to  deny 
the  same,  were  held  to  be  sufficient 
to  justify  the  inspection  of  the  rec- 
ord by  the  court  of  review  to  ascer- 
tain whether  there  was  any  appar- 
ent error.     Ibid. 


21  Fairfield  v.  U.  S.,  C.  C.  A., 
146  Fed.  508;  Toledo  Newspaper 
Co.  V.  U.  S.,  C.  C.  A.,  237  Fed. 
986,  aff'd  247  U.  S.  402;  Be  In- 
dependent Pub.  Co.,  C.  C.  A.,  240 
Fed.  849;  Tjosevig  v.  U.  S.,  C.  C. 
A.,  255  Fed.  5. 

22  Schwartz  v.  IT.  S.,  C.  C.  A., 
217  Fed.  866. 

23  Brown  v.  Detroit  Tr.  Co.,  C.  C. 
A.,  193  Fed.  622. 

24  Swepston  v.  United  States,  C. 
C.   A.,  251   Fed.   205. 


25  Gates 
Fed.  1013. 

26  Ibid. 

27  Ibid. 


V.   U.   S.,   C.    C.   A.,   223 


§  437]      REVIEW  BY   AIM'EAL  OF  COMMITMENT  FOR  CONTEMPT        2157 


some  of  which  were  not  sufficiently  proved,  there  should  be  a 
reversal. 2* 

The  propriety  of  an  order  granting  an  injunction  from  which 
no  appeal  has  been  taken  can  not  be  considered  upon  the  review 
of  a  judgment  for  contempt  in  violating  such  injunction  when 
the  first  order  was  within  the  jurisdiction  of  the  court. ^^ 

All  nuitters  which  the  opinion  of  the  District  Court  assumed 
and  which  might  be  naturally  inferred  will  be  considered  as 
found  when  no  specific  fiiidings  were  made  or  requested.'® 

The  payment  of  a  fine  imposed  in  criminal  contempt  ])roceed- 
ings  docs  not  deprive  the  defendant  of  the  right  to  review  the 
legality  of  his  conviction.'^  The  Supreme  Court  of  the  United 
States  has  refused  to  review  by  writ  of  error  the  judgment  of  a 
State  court  denying  an  application  to  punish  a  party  for  con- 
tempt, where  it  was  claimed  that  the  obligation  of  a  contract  was 
impaired  by  such  denial.'^ 

§  437.  Review  by  appeal  of  coininitment  for  contempt.  A 
commitment  in  civil  contempt  proceedings  can  only  be  reviewed 
by  an  appeal.^  This  is  the  case  whenever  the  punishment  is  a 
fine  wholly  payable  to  a  party  to  the  suit ;  even  if  accompanied 
by  imprisonment,  not  for  a  fixed  term,  but  until  the  fine  is  paid.^ 

When  a  writ  of  error  is  taken  to  review  an  order  which  proper- 
ly could  have  been  reviewed  only  by  an  appeal  the  writ  of  error 
will  be  treated  as  if  it  were  an  appeal.'  It  was  formerly  held, 
that  where  part  of  the  fine  was  payable  to  the  United  States  and 
the  remainder  to  a  party  to  the  suit,  so  much  of  the  proceedings 
as  imposed  the  latter  might  be  reviewed  by  appeal.*    It  has  been 


28  Toledo  Newspaper  Co.  v.  United 
States,  247  U.  S.  -402;  hut  see  in- 
fra, §  u36. 

29Scoric-  v.  United  States,  C.  C. 
A.,  217   Fed.  871. 

30  Toledo  Newspapt'i-  Co.  v.  U.  S., 
247  U.  S.  402. 

31  Fairfield  v.  U.  S.,  C.  C.  A., 
146  Fed.  508. 

32  Newport  Light  Co.  v.  Newport, 
151  U.  S.  527,  .38  L.  ed.  259. 

§  437.  1  Matter  of  Christensen 
Eng.  Co.,  194  U.  S.  458,  48  L.  ed. 
1072;  Doyle  v.  Loudon  Guarantee  & 
Accident  Co.,  204  U.  S.  599,  51  L. 


ed.  641  ;  Gonipers  v.  Bucks  Stove  & 
Eange  Co.,  221  U.  S.  418,  55  L.  -hI 
797,  .34  L.R.A.  (N.S.)  874;  Han 
ley  V.  Pacific  Live  Stock  Co.,  C.  C. 
A.,  234  Fed.  522;  Cutting  v.  Vjm 
Fleet,  C.  C.  A.,  252  Fed.   lOU..    . 

2  Clay  V.  Waters,  C.  C.  A.",  178 
Fed.  385,  21   Ann.  Cas.  897. 

3  Shuler  v.  Raton  Waterworks 
Co.,  C.  C.  A.,  247  Fed.  634. 

4  Matter  of  Christensen  Eng.  Co., 
194  U.  S.  458,  48  L..  ed..  i072; 
Doyle  V.  London  Guarantee  <S:  Awi- 
dent  Co.,  2Q4  U.  S..  599,..9J.  L,  ed. 
641 ;    Worden  . V:  ..Seafls,  -is;"  V-^B. 


2158 


ENFORCEMENT    OF    DECREES    AND    ORDERS 


[§138 


said  that  an  order  punishing  a  party  for  a  civil  contempt,  com-r 
mitted  after  the  final  decree,  is  reviewable  by  appeal.^  It  cannot 
be  reviewed  by  writ  of  error,^ 

An  interlocutory  order  punishing  a  party  for  contempt  in  civil 
proceedings  cannot  be  reviewed  by  an  appeal,'  but  when  it  pun- 
ishes persons  not  parties  to  the  suit  it  seems  that  they  can  im- 
mediately sue  out  a  writ  of  error.' 

No  appeal  can  be  taken  from  an  order  in  an  action  at  law 
punishing  a  party  for  contempt.^ 

The  Circuit  Court  of  Appeals  for  the  Eighth  Circuit  has  taken 
jurisdiction  of  an  appeal  from  an  order,  discharging  a  rule  to 
show  cause  why  a  party  should  not  be  punished  for  contempt 
of  a  final  decree  of  injunction  against  the  infringement  of  a 
trade-mark.^® 

The  Circuit  Court  of  Appeals  for  the  Seventh  Circuit  dis- 
missed an  appeal  from  an  order  dismissing  a  rule  to  show  cause 
why  a  witness  should  not  be  punished  for  contempt  in  refusing 
to  answer  a  question  before  an  examination  in  a  suit  where  no 
final  decree  had  been  entered.^^ 

An  order  will  not  be  reversed  upon  the  facts  when  the  evidence 
is  not  contained  in  the  transcript  and  the  findings  made  by  a 
judge  or  master  below  are  sufficient  to  sustain  the  commitment. ^^ 

§  438.  Review  by  revisory  petitions  of  commitments  for  con- 
tempt in  bankruptcy  proceedings.  Although  the  point  is  doubt- 
ful, in  two  cases  in  the  First  Circuit  commitments  in  contempt 
proceedings  were  reviewed  by  revisory  petitions,^  but  when  part 


14,  26,  30  L.  ed.  853,  857;  Gompers 
V.  Bucks  Stove  &  Eange  Co.,  221  U. 
S.  418,  5  L.  ed.  797,  34  L.R.A. 
(N.S.)   874. 

6Worden  v.  Searls,  121  U.  S.  14, 
26,  30  L.  ed.  853,  857;  Wilson  v. 
Calangraph  Co.,  C.  C.  A.,  153  Fed. 
961,  963;  Clay  v.  Waters,  C.  C.  A., 
178  Fed.  385,  21  Ann.  Cas.  897. 

6  Ibid. 

f  Hultberg  v.  Anderson,  C.  C.  A., 
214  Fed.  349. 

•  Shuler  v.  Raton  Waterworks  Co., 
C.  C.  A.,  247  Fed.  634. 

9  International  Paper  Co.  v.  Cha- 
loux,  C.  C.  A.,  165  Fed.  436. 


10  Enoch  Morgan 's  Sons  Co.  v. 
Gibson,  C.  C.  A.,  122  Fed.  420. 

11  Hultberg  v.  Anderson,  C.  C.  A., 
214  Fed.  349. 

12  Frank  v.  Bernard,  C.  C.  A., 
185  Fed.  812;  McKee  Glass  Co.  v. 
fl.  C.  Fry  Glass  Co.,  C.  C.  A.,  248 
Fed.  125. 

§438.  I  Be  Goodrich,  C.  C.  A., 
184  Fed.  5,  7;  Re  Cole,  C.  C.  A., 
163  Fed.  180,  183,  90  C.  C.  A.  50, 
53,  23  L.R.A.  (N.S.)  255.  Where 
an  order  directed  that  a  trustee  in 
bankruptcy  be  committed  to  jail  un- 
less he  filed  an  account  on  or  be- 
fore a  certain  date,  a  petition  for  a 


§439] 


SEQUESTRATION 


2159 


of  the  punishment  is  a  fine,  payable  to  the  United  States,  a  writ 
of  error  is  the  proper  remedy.^ 

§  439.  Sequestration.  The  process  of  sequestration  is  a  writ 
or  commission  issuing  under  the  seal  of  the  court,  directed  either 
to  the  marslial  or  to  certain  persons  of  the  plaintiff's  nomination 
empowering  liiin  or  them  to  enter  upon  and  sequester  the  real 
and  personal  estate  of  a  defendant  (or  some  particular  parcel 
of  his  lands),  and  to  take,  receive,  and  sequester  the  rents,  issues, 
and  profits  thereof,  and  keep  the  same  in  their  hands,  or  pay 
the  same  in  such  manner  and  to  such  persons  as  the  court  shall 
in  its  discretion  appoint,  until  such  defendant  shall  have  per- 
formed some  matter,  previously  ordered  by  the  court,  in  the 
process  specifically  mentioned,  for  not  doing  whereof  he  is  in 
contempt. 1  This  is  one  of  the  oldest  writs  of  the  court  of  chan- 
cery, and  has  been  the  cause  of  many  conflicts  between  the  Eng- 
lish Chancellors  and  the  courts  of  common  law.^  :\Iuch  curious 
history  and  learning  upon  the  subject  invite  the  attention  of  the 
antiquarian ;  but,  as  the  writ  is  now  rarely  used,  little  space  will 
be  devoted  to  it  in  this  work. 

By  the  Equity  Rules,  w^henever  the  marshal  has  returned  non 
est  inventus  under  a  writ  of  attachment,  a  writ  of  sequestration 
may  issue  to  compel  obedience  to  a  decree  or  order  of  the  court.' 
The  writ,  when  not  issued  to  the  marshal,  appoints  two  or  more 
sequestrators.*  The  usual  number  is  four.^  The  sequestrators 
are  officers  of  the  court,  and  as  such  are  subject  to  new  directions 
during  the  discharge  of  their  functions,^  may  be  attached  for 
disobedience  or  misconduct,'  and,  if  resistance  be  made  to  them, 
may  be  aided  by  the  court  with  the  exercise  of  its  process  of 
contempt,*  or  by  a  writ  of  assistancg.^    Sequestrators  must  from 


revision  of  tlie  order  which  was  per- 
mitted to  be  filed  prior  to  the  ex- 
piration of  the  time  was  dismissed 
as  premature.  O 'Conor  v.  Simseri, 
C.  C.  A.,  184  Fed.  712. 

2  Brown  v.  Detroit  Tr.  Co.,  C.  C. 
A.,  193  Fed.  622. 

§439.  IHinde's  Ch.  Pr.  127; 
Hoffman's  Ch.  Pr.,  ch.  iii,  §10; 
Daniell's  Ch.  Pr.,  ch.  xxv,  §7. 

2  Gilbert 's  Forum  Eomanum,  78 ; 
Daniell's  Ch.  Pr.,  ch.  xxv,  §7. 


8  Rules  7  and  8.  See  Shainwald 
V.  Lewis,  6  Fed.  766,  777. 

4  Hoffman's  Ch.  Pr.,  ch.  iii,  §10. 

5  Daniell  's  Ch.  Pr.,  ch.  xxv,  §  5. 
6Hinde's  Ch.   Pr.   138;    Daniell's 

Ch.  Pr.,  ch.  XXV,  §  7;  Hoffman's  Ch. 
Pr.,  ch.  iii,  §  10. 

7  Lord  Pelham  v.  Lord  Harley,  3 
Swanst.  291,  n. 

8  Angel  v.  Smith,  9  Ves.  335; 
Lord  Pelham  v.  Duchess  of  New- 
castle, 3  Swanst.  293,  n.;  Bule  9. 


2160  ENFORCEMENT    OP    DECREES    AND    ORDERS  [§440 

time  to  time  account  for  what  comes  into  their  hands,  and  pay 
into  court  such  money  as  they  receive. ^° 

§  440.  Writ  of  assistance  and  writ  of  possession.  The  Equity 
Rules  provide  that  ' '  when  any  decree  or  order  is  for  the  delivery 
of  possession,  upon  proof  made  by  affidavit  of  a  demand  and  re- 
fusal to  obey  the  decree  or  order,  the  party  prosecuting  the  same 
shall  be  entitled  to  a  writ  of  assistance  from  the  clerk  of  the 
court.  "1  This  is  a  writ  commanding  the  marshal  to  eject  the 
defendant  from  the  land  and  put  the  plaintiff  in  possession ;  and 
is  executed  in  the  same  manner  as  a  writ  of  habere  facias  posses- 
sionem is  executed  in  favor  of  a  successful  plaintiff  in  the  action 
of  ejectment;^  "in  the  execution  of  which  the  sheriff  may  take 
with  him  the  posse  comitatus,  or  power  of  the  county,  and  may 
justify  breaking  open  doors,  if  the  possession  be  not  quietly 
delivered.  But,  if  it  be  peaceably  yielded  up,  the  delivery  of  a 
twig,  a  turf,  or  a  ring  of  a  door  in  the  name  of  seisin,  is  sufficient 
execution  of  the  writ."^  This  writ  is  often  used  to  put  into 
possession  receivers  *  and  sequestrators.^  It  is  not  issued  with- 
out an  order  for  that  purpose.^ 

An  application  may  be  made  by  a  l)ill  to  carr^'  the  decree  into 
execution  '''  or  by  a  petition. ^  It  cannot  issue  against  any  but  a 
party  to  the  suit,  or  his  representative,  or  one  who  came  into 
possession  under  him  since  the  suit  was  begun.^ 

The  grantee  of  the  purchaser  at  a  foreclosure  sale  where  the 
court  has  ordered  the  receiver  to  put  him  in  possession  of  the 
purchased  property,  if  the  court  has  retained  jurisdiction  of  the 
suit,  may  obtain  a  writ  of  possession.^'* 

9  Lord  Pelham  V.  Duchess  of  New-  6  Seton  on  Decrees  (4th  ed.), 
castle,  ."5   Swanst.  289,  n.;   Rule  91           1562. 

10  Howell  V.  Lord  Coningshy,  1  7  Eoot  v.  Woolwortli,  150  U.  S. 
Fowl.     Ex.     Pr.     161;   '  Deshrow     v.        401;    14  Sup.  Ct.  1.36. 

Grommie,   Bunb.   272.  8  Lee    v.    Thornton,    N.    C,    Oct., 

§440.     1  Rule  9.  1918,  97  S.   E.  2.3. 

2  Hunter's    Suit    in    Equity     (6th  9  Terrell  v.  Allison,  21  Wall.   289, 

ed-),    168.  22  L.   ed.   634;    Howard  v.   Railway 

3B1.  Com.   412.  Co.,   101   U.   S.   837,   849,  25   L.   ed. 

4  Sharp    V.    Carter,    3    Wms.    :i75,  1081,   1084;    Thompson   v.    Smith,   1 

379,- ii.'-;  Seton  on  Decrees  (4th  ed.j.  Dill.  458. 

441,  1563.  10  Farmers'  L.   &  Tr.   Co.   v.   Chi- 

6  Lord  Pelham  v.  Duchess  of  New-  cago  &  A.  Ry.  Co.,  44  Fed.  653,  658. 

castle,  3   Swanst.  289,  n.)    Seton   on  But    see    Van    Hook    v.    Throckmo.-- 

Decrees  (4th  ed.),  1562.-  ton,   8   Paige    (N.    Y.),   33;    People 


§441]  ACTIOX   BY   COl'RT   ITSELF  2161 

It  may  be  issued  to  enforce  the  decree  in  a  suit  to  set  aside  a 
deed  for  fraud  and  undue  influence  ^^  or  to  cancel  a  cloud  upon 
the  complainant's  title,^^  and  in  any  suit  brought  for  the  pur- 
pose of  determining  the  rights  of  the  litigants  to  the  title  or 
possession  of  real  estate,*^  although  a  single  case  limits  the 
exercise  of  the  jurisdiction  to  the  enforcement  of  decrees  which 
pass  the  title.^* 

The  writ  cannot  be  issued  to  i»ut  a  party  in  possession  of  land 
beyond  the  territorial  jurisdiction  of  the  court,  and  all  acts  of  the 
marshal  beyond  such  jurisdiction  are  unauthorized  notwithstand- 
ing the  command  of  the  writ.^^ 

After  a  party  has  been  put  in  possession  under  a  judgment  in 
ejectment,  the  court  has  no  power  at  a  subsequent  term  to  direct 
a  restitution  of  the  property  to  the  persons  from  whom  possession 
was  taken,  unless  the  judgment  is  reversed  by  the  proper  court 
of  review.^^  It  has  been  held  that  a  marshal  or  other  officer 
charged  with  the  execution  of  a  writ  of  possession,  under  judg- 
ment in  ejectment,  cannot  appeal  to  the  court  for  instructions 
because  of  protests  made,  or  notices  served  upon  bim,  by  persons 
not  parties  to  the  action,  who  claim  independent  rights  in  the 
land.i"' 

§  441.  Action  by  the  Court  itself.  The  Equity  Rules  now  pro- 
vide :  "If  a  mandatory  order,  injunction  or  decree  for  the  specific- 
performance  of  any  act  or  contract  be  not  complied  with,  the 
court  or  a  judge,  besides,  or  instead  of,  proceedings  against  the 
disobedient  party  for  a  contempt  or  by  sequestration,  may  by 
order  direct  that  the  act  required  to  be  done  be  done,  so  far  as 

V.    Grant,    45    Cal.    97;    Stanley    v.  13  Clarke   v.   Aldridge,   162   N.   C. 
Sullivan,    71    Wis.    585,    5    Am.    St.  328,   78    S.   E.    216;    Lee   v.    Thorn- 
Rep.    245;    Harding    v.    Harker,    17  ton,  97  S.  E.  2.3. 
Idaho,  341,  105  Pac.   788;   Jones  v.  14  Clay  v.  Hammond,  199  111.  370, 
Hooper,  50  Miss.  513.  65  N.  E.  352,  also  reported  and  ap- 

11  Reed  v.  Exiim,  84  N.  C.  430;  proved  in  93  Am.  State  Rep.  143, 
Sehenek  v.  Conover,  13  N.  J.  Eq.,  156,  disapproved  in  Loe  v.  Thorn- 
223;  Knight  v.  Houghtalling,  94  N.  ton,  N.  C,  Oct.,  1918,  97  S.  E.  23. 
C,  408;  Stanley  v.  Sullivan,  71  16  5e  Anderson,  94  Fed.  487,  497. 
Wis.  585;  see  also  Yates  v.  Hamby,  16  Dickinson  v.  Huntington,  C.  C. 
2   Atk.  362;    Adamson  v.   Adamson,  A.,  185  Fed.  703. 

12  Ont.  Pr.,  21    (Ann.  Cas.,  1&13D,  17  Huntington 's   Devisees   v.   Tay- 

1121,  note).  lor,  156  Fed.  700,  aff 'd  Dickinson  v. 

12  Root  v.  Woolworth,  150  T.  S.  Huntington,  C.  C.  A.,  185  Fed.  703. 
401,  14  Sup.  Ct.  136. 


2162 


ENFORCEMENT    OF    DECREES   AND   ORDERS 


[§441 


practicable,  by  some  other  person  appointed  by  the  court  or 
judge,  at  the  cost  of  the  disobedient  party,  and  the  act,  when  so 
done,  shall  have  like  effect  as  if  done  by  him. "  ^    It  had  previ- 


§441.  lEq.  Eule  8.  In  the 
year  1830,  an  act  was  passed  in 
England,  at  the  instance  of  Sir  Ed- 
ward Sugden,  the  autlior  of  Sugden 
on  Powers,  afterwards  Lord  St. 
Leonards,  providing :  ' '  That  when 
any  person  shall  have  been  directed 
by  any  decree  or  order  to  execute 
any  deed  or  other  instrument,  or 
make  a  surrender  or  transfer,  or  to 
levy  a  fine  or  suffer  a  recovery,  and 
shall  have  refused  or  neglected  to 
execute,  make  or  transfer,  or  levy 
or  suffer  the  same,  and  shall  have 
been  committed  to  prison  under 
process  for  such  contempt,  or,  being 
confined  in  prison  for  any  other 
cause,  shall  have  been  charged  with 
or  detained  under  process  for  such 
contempt,  and  shall  remain  in  sucft 
prison,  the  court  may,  upon  motion 
or  petition,  and  upon  affidavit  that 
such  person  has  after  the  expiration 
of  two  calendar  months  from  ihe 
time  of  his  being  committed  under 
or  charged  with,  or  detained  under 
such  process,  again  refused  to  exe- 
cute such  deed  or  instrument  or 
make  such  surrender  or  transfer,  or 
levy  or  suffer  such  fine  or  recovery, 
order  or  appoint  one  of  the  masters 
in  ordinary,  or  if  the  act  is  to  be 
done  out  of  London,  then,  if  neces- 
sary, one  of  the  masters  extraordi- 
nary, to  execute  such  deed  or  other 
instrument  or  to  make  such  sur- 
render or  transfer,  for  and  in  the 
name  of  such  person,  and  to  levy 
such  fine  or  suffer  such  recovery,  in 
his  name,  and  to  do  all  acts  neces- 
sary to  give  validity  and  operation 
to  such  fine  and  recovery,  and  to 
lead  or  declare  the  uses  thereof;  and 


the  execution  of  said  deed  or  other 
instrument,  and  the  surrender  or 
transfer  made  by  the  said  master, 
and  the  fine  or  recovery  levied  or 
suffered  by  him,  shall  in  all  respects 
have  the  same  force  and  validity  as 
if  the  same  had  been  executed  or 
made,  levied  or  suffered,  by  the  par- 
ty himself;  and  within  ten  days 
after  the  execution  or  making  of  any 
such  deed  or  other  instrument  or 
surrender  or  transfer,  or  levying  or 
suffering  such  fine  or  recovery,  no- 
tice thereof  shall  be  given  by  the 
adverse  solicitor  to  the  party  in 
whose  name  the  same  is  executed  or 
made ;  and  such  party,  as  soon  as 
the  deed  or  other  instrument  or  sur- 
render, transfer,  fine  or  recovery 
shall  be  executed,  made,  levied,  or 
suffered,  shall  be  considered  as  hav- 
ing cleared  his  contempt,  except  as 
far  as  regards  the  payment  of  the 
costs  of  the  contempt,  and  shall  be 
entitled  to  be  discharged  therefrom, 
imder  any  of  the  provisions  of  this 
act  applicable  to  his  case;  and  the 
court  shall  make  such  order  as  shall 
be  just,  touching  the  payment  of  the 
costs  of  or  attending  any  such  deed, 
surrender,  instrument,  transfer,  fine, 
or  recovery. "  "  That  where  a  person 
shall  be  committed  for  a  contempt 
in  not  delivering  to  any  person  or 
persons  or  depositing  in  court  or 
elsewhere,  as  by  any  order  may  be 
directed,  books,  papers,  or  any  other 
articles  or  things,  any  sequestrator 
or  sequestrators  appointed  under 
any  '  commission  of  sequestration 
shall  have  the  same  power  to  seize 
and  take  such  books,  papers,  writ- 
ings, or  other  articles  or  things,  be- 


§442] 


BILLS  TO  CARRY  DECREES  LVTO  EXECUTION 


2163 


ously  been  held  that  the  Supreme  Court  of  the  District  of  Colum- 
bia ^  and  a  Circuit  Court  of  the  United  States  ^  had  power  to  ap- 
point a  trustee  to  execute  an  assignment  of  a  patent  right,*  or  to 
have  the  same  made  by  a  master,*  A  Court  of  Equity  has  power 
to  appoint  a  trustee  to  protect  the  rights  of  the  beneficiaries  of  a 
trust.^  A  District  Court  of  the  United  States  has  power  to  direct 
its  marshal  to  remove  buildings  from  land  over  which  a  complain- 
ant has  a  right  of  way.'' 

When  permanent  injunctions  are  issued  to  restrain  the  in- 
fringement of  copyrights  *  or  trade  marks,^  the  court  may  order 
the  destruction  by  the  marshal  of  the  infringing  articles.  In 
contempt  proceedings  the  court  may  also  direct  the  destruction 
of  a  railroad  or  other  building  built  in  violation  of  an  order  of 
the  court. ^° 

§  442.  Bills  to  carry  decrees  into  execution.    A  bill  to  carry 
a  decree  into  execution  is  proper  where,  after  a  decree  has  been 
pronounced,  it  has  happened  that  owing  to  some  neglect  of  the 
parties  to  proceed  upon  the  decree,  their  rights  have  become  so 


ing  in  the  custody  or  power  of  the 
person  against  whom  the  sequestra- 
tion issues,  as  they  would  over  his 
own  property;  and  thereupon  such 
articles  or  things  so  seized  and  tak- 
en shall  be  dealt  with  by  the  court 
as  shall  be  just;  and  after  such  seiz- 
ure it  shall  be  lawful  for  the  court, 
upon  the  application  of  the  prisoner, 
or  of  any  other  person  in  the  cause 
or  matter,  or  upon  any  report  to  be 
made  in  pursuance  of  this  act,  to 
make  such  order  for  the  discharge 
of  the  prisoner,  upon  such  terms, 
and,  if  it  shall  see  fit,  making  any 
costs  to  the  cause,  as  to  the  court 
shall  seem  proper. ' ' 

2  Acts  of  1  Wm.  IV,  ch.  36,  §  15, 
R.  15;  Shepherd  v.  Com'rs  of  Ross 
County,  7  Ohio,  271;  Carpenter  v. 
Strange,  141  U.  S.  87,  35  L.  ed. 
640 ;  Sayle  v.  Scott  Paper  Mfg.  Co., 
55  Fed.  553,  557;  Lynde  v,  Colum- 
bus, C.  &  I.  C.  Ry.  Co.,  57  Fed.  993 ; 
York   County   Sav.   Bank  v.   Abbot, 


139  Fed.  988,  993;  Wilson  v.  Mar- 
tin, etc.,  Co.,  151  Mass.  515,  8  L.R.A. 
309;   supra,  §§  64,  398r 

3  Underfeed  Stoker  Co.  v.  Am. 
Ship.  Windlass  Co.,  165  Fed.  65. 

4Ager  v.  Murray,  105  U.  S.  126, 
132,  26  L.  ed.  942,  944. 

6  Underfeed  Stoker  Co.  v.  Am. 
Ship  Windlass  Co.,  165  Fed.  65, 
when  the  defendant  refused  so  to  do 
after  a  sale  of  the  patent  right  in  a 
suit  of  which  the  court  liad  jurisdic- 
tion. 

6  Drennen  v.  Heard,  198  Fed.  414. 

7  Gormley  v.  Clark,  134  U.  S. 
338,  33  L.  ed.  909. 

8  35  St.  at  L.  1081;  37  St.  at 
L.  489,  38  St.  at  L.  113;  Comp. 
St.,  §9546,  9526. 

9  33  St.  at  L.  729;  Comp.  St., 
§  9505. 

10  Indianapolis  &  N.  W.  Traction 
Co.  V.  Consolidated  Traction  Co.,  125 
Fed.  247,  250. 


2164 


ENFORCEMENT    OP    DECREES    AND    ORDERS 


[§442 


embarrassed  by  subsequent  events  that  no  ordinary  process  of 
the  court  upon  the  first  decree  will  serve,  and  it  is  therefore  nec- 
essary to  have  another  decree  of  the  court  to  ascertain  and  en- 
force them ;  ^  or  where  a  person  who  was  not  a  party  nor  claims 
under  a  party  to  the  original  decree,  claims,  m  a  similar  interest, 
or  is  unable  to  obtain  the  determination  of  his  own  right  until 
the  decree  has  been  carried  into  execution ;  ^  or  by  or  against  a 
person  claiming  as  assignee  of  a  party  to  the  original  decree,^  or 
otherwise,  in  privity  with  such  a  party,  for  example,  a  stock- 
holder or  perhaps  a  creditor  of  a  corporation ;  *  or  to  carry  into 
execution  the  judgment  of  an  inferior  court  of  equity.^ 

A  bill  of  this  description  is  generally  partly  an  original  bill, 
though  not  strictly  original ;  and  sometimes  it  is  likewise  a  bill 
of  revivor  or  a  supplemental  bill,  or  both ;  and  the  frame  of  the 
bill,  and  the  course  of  proceedings  upon  it,  vary  accordingly.^ 
Such  a  bill  is  treated  as  ancillary  to  the  principal  suit,  and  the 
Federal  court  in  which  the  original  decree  was  entered  will  take 
jurisdiction  of  the  same  irrespective  of  the  citizenship  of  the 
parties.' 

Upon  a  bill  to  carry  a  decree  into  execution  the  court  is  at 
liberty  to  examine  into  the  grounds  of  the  original  decree,  and 
if  such  decree  appears  to  have  been  erroneous,  to  refuse  to  en- 
force it,  even  when  the  same  was  entered  by  consent.^    Where  a 


§  442.  1  Mitford's  PI.,  ch.  i,  §  3; 
Daniell's  Ch.  Pr.  (1st  Am.  ed.) 
1689;  Johnson  v.  Northley,  Prec.  in 
Ch.  134;  s.  C,  2  Vern.  407. 

2  Mitford's  PL,  ch.  i,  §3;  Dan- 
iell's Ch.  Pr.  (1st  Am.  ed.)  1689, 
]690;  Rylands  v.  Latouche,  2  Bligh, 
566;  Oldham  v.  Eboral,  Cooper  Sel. 
Cases,  temp.  Brougham,  27. 

3  Lawrence  Mfg.  Co.  v.  Janesville 
C.  Mills,  138  U.  S.  552,  34  L.  ed. 
1005;  Pacific  Live  Stock  Co.  v. 
Hanley,  C.  C.  A.,  200  Fed.  468;  Or- 
gan V.  Gardiner,  1  Ch.  Cas.  231; 
Lord  Carteret  v.  Paschal,  3  Peere 
Wms.  197;  Binks  v.  Binks,  2  Bligh, 
P.  C.  593;  Root  v.  Woolworth,  150 
U.  S.  401,  37  L.  ed.  1123;  Daniell's 
Ch.  Pr.  (1st  Am.  ed.)  1691. 


4  Central  Tr.  Co.  v.  Western  N. 
C.  R.  Co.,  89  Fed.  24. 

5  Morgan  v.  ,   1   Atk.  408; 

Mitford's  PI.,  ch.   1,   §3;    Daniell's 
Ch.  Pr.  (1st  Am.  ed.)  1691. 

6  Mitford's  PL,  ch.  i,  §3;  Dan- 
iell's Ch.  Pr.   (1st  Am.  ed.)   1693. 

7  Railroad  Co.  v.  Chamerlain,  6 
WalL  748,  18  L.  ed.  859;  Root  v. 
Woolworth,  150  U.  S.  401,  37  L.  ed. 
1123;  Central  Tr.  Co.  v.  Western  R. 
Co.,  89  Fed.  24. 

8  Lawrence  Mfg.  Co.  v.  Janes- 
ville C.  Mills,  138  U.  S.  552,  562, 
34  L.  ed.  1005,  1009;  Lewers  & 
Cooke  V.  Atcherly,  222  U.  S.  285,  56 
L.  ed.  202;  Gay  v.  Parprat,  106  U. 
S.  679,  27  L.  ed.  256;  Lawrence  v. 
Berney,  2  Rep.  in  Ch.  127;  Johnson 


§  442  J  BILLS  TO  CARRY  DECREES  INTO  EXECUTION  2165 

decree  is  capable  of  being  executed  by  the  ordinary  process  and 
forms  of  the  court,  whatever  the  iniquity  of  the  decree  may  be, 
till  it  is  reversed  the  court  is  bound  to  assist  it  witli  the  utmost 
process  the  course  of  the  court  will  bear ;  but  where  the  common 
process  of  the  court  will  not  serve  and  things  come  to  be  in  such 
a  state  and  condition  after  a  decree  made,  that  it  re(juires  a  new 
bill  and  a  second  decree  upon  that  before  the  first  decree  can  be 
executed,  if  the  first  decree  is  unjust,  the  court  desires  to  be 
excused  in  making  it  its  own,  and  to  build  upon  such  foundations, 
and  charging  its  conscience  with  promoting  an  apparent  in- 
justice ;  and  this  obliges  the  court  to  examine  the  grounds  of  the 
first  decree  before  it  makes  the  same  decree  again.* 

V.  Northey,  Prec.  in  Cli.   1:54;    s.  c,  9  Lawrence    v.    Heniey,    2    Cli.    H. 

2   Vern.  407;    Atty.   Gen.  v.  Day,   1  127;    Lawrence    Mfg.   Go.   v.   Jancs- 

Vesey,  218;   Wert  v.  Skip,  1  Vesey,  ville   C.   Mills,   1:58    V.   S.   552,   562, 

218;  Hamilton  v.  Hoiigliton,  2  Bligh,  ;14  L.  cd.  1005,  1009;  Mitford's  PI., 

P.  C.  169;  Mitford's  PI.,  cli.  i,  ^li;  cli.    i,    §.3;    Daniell's    Ch.    Pr.    (1st 

Daniel] 's    Ch.    Pr.     (1st    Am.    ed.)  Am.  ed.)    1691,  1692. 
1691,    1692.      Cf.    Deposit    Bank    v. 
Frankfort,    191    V.    S.   499,    525,   48 
L.  ed.  276,  286. 


Fed.  Prac.  Vol.  11—66 


CHAPTER  XXIX. 


CORRECTION   OF   DECREES   OTHERWISE  THAN   BY  APPEAL. 

§  443.  Correction  of  decrees.  In  general.  AVhen  a  party  to  a 
suit  in  equity,  or  his  representative  feels  himself  aggrieved  by  a 
final  decree  of  the  court,  there  are  eight  ways  in  which  he  can 
apply  to  have  such  decree  reversed,  set  aside,  or  varied :  by  peti- 
tion for  a  mere  clerical  or  accidental  error,^  by  a  petition  for  a 
rehearing,^  by  a  bill  of  review,^  by  a  bill  in  the  nature  of  a  bill  of 
review,*  by  a  supplemental  bill  in  the  nature  of  a  bill  of  review,^ 
by  a  bill  to  set  aside  a  decree  on  account  of  fraud,  mistake,  acci- 
dent, or  surprise,^  by  a  bill  to  suspend  or  avoid  the  operation  of 
a  decree,'  and  by  an  appeal.* 

An  interlocutory  decree  can  be  corrected  before  ^  or  at  the 


§  443.     1  §  444. 

2  §  445. 

3  §§  447-449. 

4  S  450. 
6  §  446. 

6  §  451. 

7  §  452. 

8Ch.    XXXVI. 

9  Iowa  V.  Illinois,  151  U.  S.  238, 
38  L.  ed.  145;  supra,  §397.  See, 
however,  Gmin  v.  Black,  60  Fed.  151. 

A  decree  for  an  accounting,  even 
one  making  absolute  an  order  that  a 
bill  be  taken  pro  confesso,  Webster 
V.  Oliver  Ditson  Co.,  171  Fed.  895, 
is  interlocutory  and  may  be  modi- 
fied at  any  time,  Weston  El.  Instru- 
ment Co.  V.  Empire  El.  Instrument 
Co.,  166  Fed.  867.  See  Comly  v. 
Buchanan,  81  Fed.  58,  where  a  de- 
cree for  an  injunction  and  an  ac- 
counting, entered  December  9,  1895, 
was  modified  on  petition  January 
22,  1897.  A  decree  in  a  partition 
suit  adjudging  the  property  suscep- 


tible of  partition,  and  appointing 
petitioners  to  make  the  same,  is  in- 
terlocutory and  may  be  set  aside 
or  modified  at  any  time  before  final 
decree.  Dangerfield  v.  Caldwell,  C. 
C.  A.,  151  Fed.  554. 

A  court  refused  to  modify  an  in- 
terlocutory decree  for  an  injunction, 
so  as  to  more  clearly  advise  the  de- 
fendant what  he  could,  and  what  he 
could  not  do  without  infringing 
same.  Thomas  &  Sons  Co.  v.  El. 
Porcelain  Co.,  114  Fed.  407. 

An  interlocutory  decree  can  be 
opened  to  admit  new  evidence,  only 
on  the  same  terms  as  a  final  decree. 
Deitch  V.  Staub,  C.  C.  A.,  115  Fed. 
309,  317.  It  has  been  said  that  this 
will  not  be  done,  when  the  party 
seeking  to  modify  the  interlocutory 
decree  has  acquiesced  in  the  same. 
Dewey  v.  Stratton,  C.  C.  A.,  114 
Fed.  179. 

Cushman  &  Denison  Mfg.  Co.  v. 
Grammes,    225    Fed.    883,    885,    per 


2166 


§444] 


AMENDMENT    OF    DECREE 


2167 


entry  of  the  final  decree-i"*  A  rule  of  the  State  court  permitting 
decrees  or  a  default  to  be  opened  at  the  term  after  they  have 
become  absolute  will  not  be  followed  by  the  Federal  courts."  A 
motion  to  set  aside  an  interlocutory  decree  will  ordinarily  be 
denied,  if  based  only  upon  grounds  considered  at  the  hearing.^^ 
§  444.  Amendment  of  decree  without  a  rehearing-.  The  rules 
provide  that  "clerical  mistakes  in  decrees  or  decretal  orders,  or 
errors  arising  from  any  accidental  slip  or  omission,  may,  at  any 
time  before  the  close  of  the  term  at  which  final  decree  is  ren- 
dered, be  corrected  by  order  of  the  court  or  a  judge  thereof,  upon 
petition  without  the  form  or  expense  of  a  rehearing."  ^  Decretal 
orders  may  be  corrected  in  the  same  manner.^  In  this  way,  cor- 
rections have  been  permitted  of  errors  in  the  title  of  a  decree  or 
order ;  ^  of  an  omission  from  a  decree  for  specific  performance  of 


Dickinson,  J.:  "  Tlie  decree,  it  is 
true,  is  interlocutory;  but  as  long  as 
it  stands  it  disposes  of  everything 
involved  in  it.  We  entertain  no 
doubt  of  the  power  of  control  which 
the  court  has  over  such  decrees. 
This  is  implied  in  their  very  nature. 
If  authority  for  the  existence  of 
such  power  is  required,  it  may,  be 
found  in  Perkins  v.  Fourinquet,  47 
U.  S.  206,  12  L.  ed.  406.  This  is, 
however,  far  from  the  being  all. 
The  exercise  of  power,  merely  be- 
cause it  is  jiossessed,  the  height  of 
unwisdom.  Tlie  doctrine  of  stare 
decisis,  where  the  decision  lias  been 
made  in  the  very  case  under  con- 
sideration, has  a  value  far  beyond 
that  of  the  presumption  of  correct- 
ness. The  ruling  is  much  more  than 
merely  persuasive,  even  when  the 
reasoning  of  the  judges  by  whom 
it  was  rendered  is  such  as  to  bring 
instant  convinccment  of  mind.  It 
is  a  decision  of  the  questions  in- 
volved which  should  not  be  dis- 
turbed by  any  otlier  than  a  tribunal 
having  appellate  duties.  We  have 
the  authority  of  one  of  the  greatest 


of  jurists  and  statement  for  thi' 
truth  that  bad  laws  may  be  borne 
but  the  '  jtis  aut  vadum  aiit  incer- 
tum'  presents  a  situation  which  is 
intolerable. ' ' 

10  Henry  v.  Travelers'  Ins.  Co., 
34  Fed.  258;  Clark  v.  Blair,  14  Fed. 
812;  Eogers  v.  Pitt,  129  Fed.  9;J2; 
King  V.  West  Virginia,  216  U.  S. 
92,  100,  54  L.  ed.  396,  401;  Lewers 
&  Cooks  V.  Atcherly,  222  U.  S.  285, 
295,  56  L.  ed.  202,  205.  For  mo- 
tions at  the  foot  of  a  decree,  see 
supra,  §  405;  Kapiolani  Estate,  Lim- 
ited V.  Atchcrlcy,  238  U.  S.  179; 
Pease  v.  Katlibun-Jones  Engineer- 
ing Co.,  228  Fed.  275. 

11  Austin  V.  Riley,  55  Fed.  833. 
See  Rogers  v.  Pitt,  129  Fed.  932, 
937.     But  see  infra,  §481. 

12  A.  B.  Dick  Co.  v.  Wickelman, 
77  Fed.  853;  Rogers  v.  Pitt,  129 
Fed.  932,  937. 

§  444.  1  Eq.  Rule  72.  See  Wit- 
ters V.  Sowles,  32  Fed.  130;  Hop  B. 
Mfg.  Co.  V.  Warner,  28  Fed.  577. 

2  Union  S.  Ref.  v.  Mathiesson,  3 
Cliflf.   146. 

8  Spearing  v.   Lynn,  2  Vern.  376. 


2168 


CORRECTION  OF  DECREES 


[§444 


a  direction  to  settle  the  conveyance,*  or  of  a  reference  as  to 
title ;  ^  of  an  omission  in  a  decree  in  a  creditor's  suit  of  a  direction 
to  take  the  accounts  of  the  personal  estate ;  ^  of  an  allowance  of 
interest  from  a  different  date  from  that  determined  in  a  master 's 
report  which  the  court  had  confirmed ;  "^  to  change  the  place  at 
which  a  sale  of  real  estate  was  directed  in  order  to  conform  with 
the  statute ;  *  to  correct  the  numbers  of  certain  letters  patent,  an 
interest  in  which  was  decreed  to  a  party,  w^hen  there  was  no  issue 
concerning  the  identity  of  the  same,^  and  of  other  minor  defects 
or  redundances  in  respect  to  which  a  decree  did  not  conform  to 
the  directions  or  the  written  opinion  of  the  court.^<*  It  has  been 
held  that  such  a  correction  cannot  be  made  in  an  appealable  case 
after  the  term  at  which  the  decree  was  entered,^!  except  by  con- 
sent, and  it  has  been  held  that  when  thus  corrected  the  corrected 
decree  cannot  be  modified, ^^  except  under  extraordinary  circum- 
stances.^' 

An  order  or  decree  entered  by  consent  cannot  be  varied  or 
modified  in  a  material  part  without  the  assent  of  all  the  parties 
to  the  same ;  but  the  court,  it  seems,  may  give  such  further  direc- 
tions as  are  necessary  to  carry  it  "into  effect,  according  to  its 
spirit  and  intent,"^*  and  under  extraordinary  circumstances  it 
might  be  set  aside. ^^ 


4  Trevelyan  v.  Charter,  9  Beav. 
140. 

6  Hughes  V.  Jones,  26  Beav.  24. 

6  Piekard  v.  Mattheson,  7  Ves. 
29.'?. 

7  Fidelity  Trust  &  Safe  Deposit 
Co.  V.  Eoanoke  Iron  Co.,  84  Fed. 
744. 

8  Fulton  Inv.  Co.  v.  Dorsey,  220 
Fed.   298. 

9  Maginn  v.  Standard  Equipment 
Co.,  C.  C.  A.,  150  Fed.  139. 

10  Gage  V.  Kellogg,  26  Fed.  242; 
Rogers  v.  Eiessner,  34  Fed.  R.  270; 
Tufts  v.  Tufts,  3  W.  &  M.  429; 
Pfanschmidt  v.  Kelly  M.  Co.,  32 
Fed.  667;  Witters  v.  Sowles,  32 
Fed.  765;  Burdsall  v.  Curran,  31 
Fed.  918;  Albany  v.  Steam  T.  Co., 
26    Fed.    318;    Dorsheimer    v.    Ror- 


baek,  9  C.  E.  Green  (N.  J.)  33; 
Sprague  v.  Jones,  9  Paige  (N.  Y.) 
395;  Jarmon  v.  Wiswall,  9  C.  E. 
Green  (N.  J.)  68.  But  see  Ry. 
Reg.  Mfg.  Co.  V.  North  Hudson  Co. 
R.  Co.,  26  Fed.  411. 

11  Doe  V.  Waterloo  Min.  Co.,  60 
Fed.  643;  Hicklin  v.  Marco,  64  Fed. 
609;  Born  v.  Schneider,  128  Fed. 
179.  Be  Metropolitan  Tr.  Co.,  218 
U.  S.  312,  54  L.  ed.  1051.  Contra, 
Taylor  v.  Easton,  C.  C.  A.,  180  Fed. 
363,  368,  where  the  petition  was 
treated  as  a  bill  of  review;  Ommen 
V.  Talcott,  180  Fed.  925,  a  mistake 
as  to  the  date  of  the  entry  of  a 
decree  made  pending  an  appeal. 

12  Ibid. 

13  U.  S.  V.  Discher,  255  Fed.  719. 

14  In  Leitch  v.  Cumpston,  4  Paige 


§444] 


AMENDMKN'T    OF    DKCREE 


2169 


The  foi'iner  English  prai'tice  (>eL'asioiiall\-  though  rarely  al- 
lowed similar  corrections  in  what  were  manifestly  mere  clerical 
errors  after  a  decree  had  been  enrolled ;  ^^  and  in  the  Federal 
courts  it  has  been  said  that  an  eri-or  in  calculating  the  amount 
ordered  by  the  decree  to  be  paid  may  be  corrected  after  enrol- 
ment, upon  motion  or  petition,  by  entering  a  credit  as  for  its 
payment.^' 

A  decree  cannot  be  set  aside  after  the  expiration  of  the  term 
when  it  was  entered  because  the  remedy  was  at  connnon  law  and 
not  in  e(iuity.^8  A  decree  may  be  set  aside  in  whole  or  in  part 
at  a  subsequent  term  because  it  is  beyond  the  jurisdiction.^^  This 
was  done  where  it  did  not  conform  to  the  pleadings  or  tindings 
and  injuriously  aflPected  persons  not  parties  to  the  suit. 20  Judg- 
ments have  been  set  aside  after  th(»  terms  at  which  they  were 
rendered  where  appearances  had  been  made  by  attorneys  with- 
out authority.^^  It  has  been  held  that  the  Federal  courts  can  set 
aside,  after  the  term  at  which  it  was  rendered,  a  final  judgment 
or  decree  entered  by  a  mistake  of  the  judge  without  an  examin- 
ation of  the  pleadings  and  evidence ;  ^^  one  which  the  judge  was 
induced  to  make  by  false  representations  as  to  its  nature  ^^  or  as 
to  the  value  of  property'-  thereby  affected,^*  when  tlie  necessity  for 


(N.  Y.)  476;  Gage  v.  Kellogg,  26 
Fed.  242;  Rogers  v.  Riessiier,  ."54 
Fed.   270. 

16  City  of  Des  Moines  v.  Des 
Moines  Water  Co.,  218  Fed.  9:59; 
Cushinan  &  Denison  Mfg.  Co.  v. 
Grammes  et  al.,  234  Fed.  952;  Chan- 
cellor Walworth  in  Leiteli  v.  Cunip- 
ston,  4  Paige    (N.  Y.)   47:5. 

16  Weston  v.  Haggerston,  G.  Coop- 
er, 134;  Yow  V.  Townsend,  1  Dick. 
59;  Atty.  Gen.  v.  Greenhill,  34  Beav. 
174;  Beekman  v.  Peek,  ;;  .1.  Ch.  (N. 
Y.)  415;  Clark  v.  Hall,  7  Paige 
(N.  Y.)  382;  Thompson  v.  Gould- 
ing,  5  Allen  (Mass.)  81.  For  en- 
rollment of  decrees,  see  supra,  S  4(Hi. 

17  Massie  v.  Graham,  3  McLean, 
41. 

18  Brown  v.  Allebach,  182  Fed. 
264. 

19  Clark  V.  Arizona  Mut.   Savings 


&  Loan  Ass'n,  217  Fed.  640.  Aff  "d 
as  Farmers'  &  Merchants'  Bank  of 
Phoenix,  Ariz.  v.  Arizona  Mut.  Sav- 
ings &  Loan  Ass'n,  C.  C.  A.,  220 
Fed.  1.  Ee  Dennett,  C.  C.  A.,  221 
Fed.  350. 

20  Ibid. 

21  After  three  years,  in  McGeorge 
V.  Bigstone  G.  I.  Co.,  88  Fed.  599. 
After  eleven  years,  in  Maury 's 
Trustees  v.   Fitzwater,  88  Fed.  768. 

22  C.  S.  V.  Williams,  67  Fed.  384. 
Such  an  application  should  be  ad- 
dressed to  the  judge  who  made  the 
error.  If  he  is  dead  or  has  left 
the  bench,  another  .judge  will  rarely, 
if  ever,  grant  it.  Hicklin  v.  Man-o. 
64   Fed.   609. 

23  Fisher   v.    Simon,   67    FoA.   387. 
24Winslow  V.  Staab,  C.  C.  A.,  242 

l\^d.  426. 


2170 


CORRECTION  OF   DECREES 


[§444 


the  correction  and  the  matter  from  which  it  is  to  be  made  appear 
upon  the  face  of  the  record ;25  when,  according  to  the  judge's 
recollection,  it  does  not  conform  to  his  decision ;  ^6  jn  which  last 
two  cases  no  notice  of  the  application  for  the  correction  is  re- 
quired ;  27  and  whenever  it  can  be  shown,  by  evidence  adduced 
aliunde,  that  the  judgment  does  not  represent  the  decision  of  the 
eourt,2*  and  the  whole  or  any  part  of  a  decree  which  is  beyond 
its  jurisdiction.'^^ 

A  decree  may  be  modified  by  the  consent  of  the  parties  at  any 
time.30  But  it  has  been  held  that  the  Federal  courts,  after  the 
term  at  which  they  were  rendered  and  the  time  allowed  by  the 
rules  for  an  application  for  a  rehearing  has  expired,  have  not  the 
power  to  set  aside  decrees  or  judgments  for  errors  of  law.^^ 

A  decree  entered  upon  a  mandate  of  the  Supreme  Court  which 
fails  in  any  respect  to  comply  therewith  is  not  final,  and  may  be 
modified  at  a  subsequent  term.^^ 

It  has  been  held  that,  after  the  term  at  which  a  decree  has  been 
entered,  it  may  be  modified  as  to  the  time  or  the  manner  of  its 
enforcement.^^ 

A  Federal  court  may  vacate  or  correct  its  judgments  or  decrees 
on  its  own  motion  during  the  same  term  for  any  cause.^* 

Where  the  judge,  after  he  had  signed  a  decree,  but  before  it 
was  entered  on  the  journal,  suspended  its  entry,  and  thereafter 
proceeded  to  reform  the  pleadings  and  hear  the  cause  anew  with 
the  acquiescence  of  the  parties,  it  was  held  that  the  decree  had  no 
validity,  although  it  was  by  mistake  filed  by  the  clerk.^^ 


25  Odell  V.  Reynolds,  C.  C.  A.,  70 
Fed.   656. 

26  Ibid. 

27  Ibid. 

28  In  such  a  case  the  application 
must  be  upon  notice.    Ibid. 

29  Ee  Dennett,  C.  C.  A.,  221  Fed. 
350,  357. 

30  U.  S.  V.  Trogler,  C.  C.  A.,  237 
Fed.  181. 

31  Klever  v.  Seawall,  C.  C.  A.,  65 
Fed.  373;  McGregor  v.  Vt.  L.  & 
Tr.  Co.,  C.  C.  A.,  104  Fed  709. 

32  Moran  v.  Hagerman,  C.  C.  A., 
64  Fed.   499. 

33  Mootry   v.    Grayson,    C.    C.   A., 


104  Fed.  613,  618;  Farmers'  L.  & 
Tr.  Co.  V.  Oregon  Pac.  R.  Co.,  28 
Oreg.  44;  s.  c,  40  Pac.  1089;  Monk- 
house  V.  Corporation  of  Bedford, 
17  Ves.   380. 

34  Aetna  L.  Ins.  Co.  v.  Board  of 
Co.  Com'rs,  C.  C.  A.,  79  Fed.  575; 
Miocene  Ditch  Co.  v.  Moore,  Judge 
of  the  United  States  District  Court, 
C.  C.  A.,  150  Fed.  483;  United 
States  ex  rel.  Animarium  Co.  v.  Cir- 
cuit Court  of  United  States,  South- 
ern Dist.  of  Iowa,  C.  C.  A.,  129  Fed. 
897. 

35  Mahler  v.  Animarium  Co.,  129 
Fed.  897. 


§445] 


PETITION  FOR  A   REIIEARIXG 


2171 


A  decree  should  not  be  modified  without  notice  to  all  the 
parties  thereby  affected,^®  unless  one  of  them  can  not  be  served 
within  the  jurisdiction.  The  omission  of  notice  does  not  make 
the  order  of  amendment  void  for  want  of  jurisdiction.^''^ 

Where  a  decree  was  modified,  at  a  term  subsequent  to  its  entry, 
it  was  presumed  that  it  was  not  final  where  the  record  did  not 
affirmatively  show  the  contrary.^^  Where  evidence  omitted  by 
oversight  was  offered  to  the  court  upon  appeal,  the  case  was  re- 
versed, with  the  direction  for  a  rehearing,  upon  the  payment  of 
costs  of  the  original  court  and  the  court  of  review.^^ 

§445.  Petition  for  a  rehearing".  A  ix-tition  for  a  rehearing 
is  the  proper  method  of  correcting  before  enrolment  errors  in  a 
decree  which  are  not  evidently  clerical  or  accidental.  A  petition 
for  a  rehearing  could  formerly  in  England  have  only  been  made 
to  a  judge  before  whom  the  cause  was  heard,  or  to  the  Lord 
Chancellor.!  In  the  Federal  courts  a  petition  for  a  rehearing 
wmII  usually  be  entertained  only  by  the  judge  or  justice  before 
whom  the  cause  was  heard.^ 

The  rules  provide  that  "No  rehearing  shall  be  granted  after  the 
term  at  which  the  final  decree  of  the  court  shall  have  been  entered 
and  recorded,  if  an  appeal  lies  to  the  Circuit  Court  of  Appeals 
or  the  Supreme  Court.  But  if  no  appeal  lies,  the  petition  may 
be  admitted  at  any  time  before  the  end  of  the  next  term  of  the 
court,  in  the  discretion  of  the  court."'  A  petition  filed  within 
the  time  prescribed  by  the  rules  may  be  heard  and  granted  sub- 
sequently.* 

When  the  respondent  to  a  petition  for  a  rehearing,  at  the  hear- 


36  Livingston  v.  Livingston,  Indi- 
ana, D.  C.  1918,  121  N.  E.  119. 

37  U.  S.  V.  Midland  Oil  Co.,  232 
Fed.  619;  Kalehua  v.  Clark,  C.  C. 
A.,   250  Fed.   612. 

38  Maginn  v.  Standard  Equipment 
Co.,  C.  C.  A.,  1.50  Fed.  139. 

39  St.  Claire  Foundry  Co.  v.  Union 
Jack  Co.,  C.  C.  A.,  184  Fed.  989. 

§445.  IDaniell's  Ch.  Pr.  (5tli 
Am.  ed.)   1471. 

2  Giant  P.  Co.  v.  California  V.  P. 
Co.,  5   Fed.   197,   202. 

3Eq.  Eule  69.     See  McMicken  v. 


Pcrrin,  18  How.  507,  15  L.  ed.  504; 
Bank  of  Lewisburg  v.  Sheflfey,  140 
U.  S.  445,  35  L.  ed.  493;  First  Nat. 
Bank  v.  Woodrum,  86  Fed.   1004. 

4  Aspen  M.  &  S.  Co.  v.  Billings. 
150  U.  S.  31,  36,  37  L.  ed.  986,  988; 
Goodard  v.  Ordway,  101  U.  S.  745, 
25  L.  ed.  1040;  New  Orleans  v. 
Fisher,  C.  C.  A.,  91  Fed.  574,  585; 
Giant  P.  Co.  v.  California  V.  P.  Co., 
6  Fed.  197,  202.  Contra,  Glenn  v. 
Noonan,  43  Fed.  K.  403;  s.  c.  43 
Fed.  550;  U.  S.  v.  Midway  Northern 
Oil  Co.,  232  Fed.  619. 


2172  CORRECTION  OF  DECREES  [§445 

ing  on  the  petition,  does  not  dispute  the  fact  that  the  suit  could 
not  be  appealed,  he  cannot,  after  a  rehearing  has  been  granted, 
offer  new  proof  that  an  appeal  might  lie,  and  on  that  ground  seek 
to  reverse  a  decree  rendered  after  a  rehearing.^  Where  a  decree 
for  an  injunction  against  the.  infringement  of  a  patent  had  been 
i-eversed,  the  mandate  ordering,  together  with  the  reversal,  "that 
Silich  execution  and  further  proceedings  be  had  in  said  case,  as, 
according  to  right  and  justice  and  the  laws  of  the  United  States, 
ought  to  be  had,  the  said  appeal  notwithstanding;"  an  applica- 
tion for  a  writ  of  certiorari  had  been  denied ;  and  the  complain- 
ant, before  the  entry  of  a  decree  upon  the  mandate,  filed  a  dis- 
claimer in  the  Patent  Office,  seeking  to  restrict  the  claims  in  con- 
troversy, so  as  to  avoid  the  effect  of  anticipating  devices,  to  which 
reference  was  made  in  the  opinion  of  the  Circuit  Court  of  Ap- 
peals :  he  was  allowed  a  rehearing.^  Otherwise,  without  leave  of 
the  appellate  court,  no  rehearing  for  newly  discovered  evidence 
can  be  granted,  when  a  case  has  been  decided  upon  an  appeal.''' 
A  rehearing  in  England  was  formerly  allowed  almost  as  of 
course,  upon  the  filing  of  a  petition  signed  by  two  counsel  of 
whom  one  at  least  must  have  been  concerned  in  the  original  hear- 
ing ;  the  rule  having  been  stated  by  Lord  Hardwicke,  that  ' '  such 
credit  is  given  by  the  court  to  their  opinion  that  the  cause  ought 
to  be  reheard,  that  it  will,  in  general,  order  the  cause  to  be  set 
down"  for  that  purpose,  as  a  matter  of  course.^  This  rule,  how- 
ever, has  not  been  adopted  in  the  courts  of  the  United  States, 
where  a  rehearing  is  discretionary  with  the  judge  to  whom  the 
application  is  made.^  Unless  the  judge  acts  of  his  own  motion,  a 
rehearing  will  be  granted  only  for  errors  of  law  apparent  upon 
the  record  and  arising  upon  questions  which  were  not  argued  at 
the  original  hearing,  or  upon  newly  discovered  evidence  of  such 
a  character  that  it  would  have  authorized  a  new  trial  in  an  action 
at  law.  10 

5Moelle   v.   Sherwood,    148    U.    S.  Ves.    319,    325;    East    India    Co.    v. 

21,  26,  87  L.  ed.  350,  352.  Boddam,   13  Ves.  421. 

6  Sample    v.    Am.    Soda    Fountain  9  Mr.    Justice    Filed    in    Giant    P. 
Co.,  134  Fed.  402.  Co.  v.  California  V.  P.  Co.,  5  Fed. 

7  Ee  Potts,   166  U..S.   263,  41   L.  197. 

ed.  994.  10  Daniel     v.     Mitchell,     1     Story, 

8  Cunynghara  v.  Cunjmhara,  Amb.        198;   Jenkins  v.   Eldredge,  3   Story, 
89.     See  Atty.  Gen.   v.   Brooke,  18       299;  Emerson  v.  Davies,  1  W.  &  M. 


§445] 


PETITION   FOR   A    REFIEARING 


2173 


A  rehearing  shouUl  inA  he  jiraiiled  l"ur  newly  diseovered  ovi- 
denee  where  the  evidence  eonld  liave  been  obtained  by  reasonable 
diligence  on  the  first  hearing,"  uoi-  wlien  it  is  merely  cumulative 
to  that  previously  received,  nor  when,  if  presented,  it  would  not 
have  changed  the  result.^^  When  the  new  evidence  was  discov- 
ered after  the  hearing  and  before  the  decision  a  motion  should  be 
made  to  stay  proceedings  for  the  purpose  of  introducing  it.^^ 
Unless  such  motion  is  made  a  petition  for  rehearing  will  he 
denied.^*  After  the  affirmance  of  a  decree  in  a  suit  to  restrain 
the  infringement  of  a  patent  the  appellate  court  will  not  grant 
a  rehearing  to  permit  the  defeated  party  to  exhibit  before  it 
articles  not  in  evidence  so  that  the  result  would  be  not  a  review 
of  the  decision  below  but  a  new  trial  on  new  evidence. ^^ 


21;  Tufts  V.  Tufts,  ,'}  W.  &  M.  426; 
Giant  P.  Co.  v.  California  V.  P.  Co., 

5  Fed.   197;    Swann  v.   Austell,  257 
Fed.  870. 

llAllis  V.  Stowell,  85  Fed.  481; 
McLeod  V.  New  Albany,  C.  C.  A., 
66  Fed.  378;  Be  Gamewell  F.  A.  Tel. 
Co.,  C.  C.  A.,  74  Fed.  908;  Bennett 
V.  Schooley,  7.  Fed.  352.  A  rehear- 
ing was  denied  where  the  defendant 
claimed  to  liave  discovered  that  an- 
other patent  anticipated  the  one  in 
suit,  when  such  patent  was  referred 
to  in  the  defendant's  brief  and  rec- 
ord upon  the  original  hearing.  Com- 
bustion Utilities  Corporation  v. 
Worcester  Gaslight  Co.,  190  Fed. 
155.  And  because  of  the  discovery 
of  a  mortgage  on  the  patent,  which 
was  shown  by  the  file  wrapper  tlien 
put  in  evidence,  Money-Weight  Scale 
Co.  V.  Toledo  Computing  Scale  Co., 
C.  C.  A.,  199  Fed.  905.  It  has  been 
said  that  surprise  as  a  ground  for 
the  granting  of  a  rehearing  in  equi- 
ty must  be  something  unexpectedly 
arising  under  circumstances  whicli 
the  party  was  not  reasonably  called 
upon  to  anticipate,  and  which  ordi- 
nary prudence  and  foresight  could 
not  guard  against.     Anderson  Land 

6  Stock  Co.  V.  McConnell,  171   Fed. 


475;  Daniel  Green  Felt  Shoe  Co.  v. 
Dolgeville  Felt  S.  Co.,  208  Fed.  289 ; 
American  Sulphite  Pulp  Co.  v. 
Hinckley  Fibre  Co.,  241  Fed.  590. 

12  Giant  P.  Co.  v.  California  V. 
P.  Co.,  5  Fed.  197,  201;  Jenkins  v. 
Eldredge,  3  Story,  299;  Tufts  v. 
Tufts,  3  W.  &  M.  426;  Hicks  v.  Otto, 
22  Blatchf.  122;  Page  v.  Holmes  B. 
A.  Tel.  -Co.,  2  Fed.  330 ;  Collins  Co. 
V.  Goes,  8  Fed.  517;  Witters  v. 
Sowles,  31  Fed.  5;  Pfanschmidt  v. 
Kelly  M.  Co.,  32  Fed.  667,  and  cases 
cited  in  the  opinions  in  these  cases. 
But  see  Webster  Loom  Co.  v.  Hig- 
gins,  43  Fed.  67.!.  It  has  been  said 
that  a  motion  to  open  a  decree  iu 
order  to  introduce  new  evidence 
differs  fioni  a  motion  for  a  rehear- 
ing, technically  so  called,  and  is  not 
to  be  governed  by  the  same  strin- 
gent rules.  ' '  It  is  rather  a  motion 
addressed  to  the  discretion  of  the 
court  with  reference  to  the  order  of 
trial."  Cami>hell  Pr.  &  Mfg.  Co.  t. 
Marden,  70  Fed.  339,  340. 

13  American  Hoist  &  Derrick  Co. 
V.  Nancy  Hanks  Hay  Press  &  Foun- 
dry Co.,  224  Fed.  524. 

14  Ibid. 

15  Barber  v.  Otis  Motor  Sales  Co., 
C.  C.  A.,  240  Fed.  723. 


2174 


CORRECTION  OF  DECREES 


[§445 


"A  new  hearing  should  not  be  had  simply  to  allow  a  rehash 
of  old  arguments. "  ^^  "If  rehearings  are  to  be  had,  until  the 
counsel  on  both  sides  are  entirely  satisfied,  I  fear,  that  suits 
would  become  immortal,  and  the  decision  be  postponed  indefi- 
nitely."" 

A  rehearing  can  only  take  place  for  the  purpose  of  alter- 
ing a  decree  upon  grounds  which  existed  at  the  time  when  the 
decree  was  pronounced,  and  one  will  not  be  allowed  to  remedy 
a  grievance  consequent  upon  a  decree,  resulting  entirely  from 
circumstances  that  have  occurred  subsequent  to  its  entry.i^ 

The  application  may  be  made  by  petition  where  it  is  founded 
upon  newly  discovered  evidence  as  well  as  when  it  is  made  for 
other  reasons.19  The  rules  provide  that  "every  petition  for  a 
rehearing  shall  contain  the  special  matter  or  cause  on  whidi  such 
rehearing  is  applied  for,  shall  be  signed  by  counsel,  and  the  facts 
therein  stated,  if  not  apparent  on  the  record,  shall  be  verified  by 
the  oath  of  the  party  or  some  other  person. ' '  20 

The  petition  for  a  rehearing  should  state  fully  the  facts  which 
show  the  nature  of  the  new  evidence,  the  facts  which  show  that 
it  could  not  have  been  found  by  the  exercise  of  reasonable  dili- 
gence before  the  hearing,  that  it  was  not  known  then  and  that  a 
diligent  search  was  previously  made  for  the  evidence.  Mere  gen- 
eral averments  of  reasonable  diligence  and  previous  ignorance 
are  insufficient.^^ 

When  the  application  is  founded  upon  a  discovery  of  new 
evidence,  the  allegations  must  be  full,  precise,  and  certain.  It 
seems  that  they  will  be  insufficient  if  sworn  to  merely  upon  in- 
formation and  belief.^^ 


16  Field,  J.,  in  Giant  P.  Co.  v. 
California  V.  P.  Co.,  5  Peri.  197, 
201. 

17  Story,  J.,  in  Jenkins  v.  El- 
dredge,  3  Story,  299,  305. 

18  Bowyer  v.  Bright,  13  Price, 
316;  Hurlburd  v.  Freelove,  3  Wis. 
537. 

19  Sheeler  v.  Alexander,  214  Fed. 
544. 

20  Equity  Rule  69;  U.  S.  v.  The 
Dago,  C.   C.  A.,  63  Fed.   182.     The 


petition  and  affidavits  should  not  be 
verified  before  a  notary  who  is  one 
of  the  petitioner's  counsel.  AUis  v. 
Stowell,  85  Fed.  481. 

21Allis  v.  Stowell,  85  Fed.  481; 
Hicks  V.  Otto,  85  Fed.  728;  MeLeod 
V.  New  Albany,  C.  C.  A.,  66  Fed. 
378;  Corrugated  Paper  Patents  Co. 
V.  Paper  Working  M.  Co.,  237  Fed. 
380,  381. 

22  Page  V.  Holmes  B.  A.  Tel.  Co., 
2  Fed.  330. 


§  445]  PETITION   FUR   A    REHEARING  2175 

It  is  the  better  practice  to  accompany  the  petition  by  affidavits 
fully  setting  out  the  new  evidence  that  has  been  discovered.^ 

It  has  been  held  that  when  evidence  of  new  facts  not  already 
in  issue  is  to  be  given,  the  petition  should  be  accompanied  by  a 
supplemental  bill  in  the  nature  of  a  bill  of  review,  pleading  these 
facts;  in  which  case,  if  the  petition  be  granted,  the  hearing  upon 
that  bill  will  take  place  at  the  same  time  as  the  rehearing  of  the 
original  suit.^* 

The  usual  proceedings  to  obtain  a  rehearing  are  for  the  party 
desiring  it  to  file  his  petition  in  the  clerk's  office,  and  then  to 
procure  an  order  directing  his  opponent  to  show  cause  wh}-  his 
prayer  should  not  be  granted.^^  The  adverse  party  may  then 
answer,  controverting  or  setting  up  new  matter  in  avoidance  of 
allegations  in  the  petition;  or  he  may  siiow  cause  against  grant- 
ing the  rehearing  on  the  return-day  of  the  order  by  an  affidavit.^^ 
He  may  submit  affidavits  in  o])positioii  to  the  petition.^' 

If  there  be  any  irregularity  in  the  petition,  it  may  be  taken 
otf  the  file  at  the  respondent's  motion. 2*  Upon  the  return-day 
of  the  order  to  show  cause,  if  no  adjournment  be  had,  the  matter 
is  argued  before  the  judge,  by  whose  direction  the  decree  or  order 
complained  of  was  made,  unless  he  be  absent,  when  the  papers 
and  the  briefs  of  counsel  should  be  filed  with  the  clerk,  who  will 
mail  them  to  him.^^ 

When  a  rehearing  is  sought  pending  an  appeal  the  proper 
proceeding  is  for  the  petitioner  to  file  a  petition  duly  verified 
praying  for  leave  to  file  in  the  court  below  a  supplemental  bill  in 
the  nature  of  a  review.'® 

The  petition  will  not  be  granted  without  notice  to  the  adverse 
parties,  and  an  opportunity  for  their  presence  afforded  them.'^ 

23Shceler  v.  Alexander,  211  Fed.  27  Sheeler  v.  Alexander,  211   Fed. 

544.  544,  546. 

24  Baker  v.  Whiting,  1  Story,  218;  28  Wood  v.  Griffith,  1  Meriv.  35. 

Perry  v.  Phelps,   17  Vea.   17.3,   178;  29  Giant  P.  Co.  v.  California  V.  P. 

Head    v.    Godlee,    Johns,    5.36,    579;  Co.,  5  Fed.  195. 

Jopp  V.  Wood,  2  Dc  G.,  J.  &  S.  323.  30  Sheeler  v.   Alexander,  211   Fed. 

26  Giant   P.    Co.   v.    California   V.  544,  547. 

P.  Co.,  5  Fed.  197;  Sheeler  v.  Alex-  31  Giant  P.  Co.  v.  California  V.  1'. 

ander,  211  Fed.  544.  Co.,  5  Fed.  195,  197. 

26  Giant  P.  Co.  v.  California  V.  P. 
Co.,  5  Fed.  197. 


2176 


CORRECTION  OF   DECREES 


[§445 


Upon  a  rehearing-  the  cause  or  matter  is  proceeded  in  as  if  it 
were  heard  for  the  first  time. 

It  has  been  said  that  when  a  rehearing  is  granted  because  of 
newly  discovered  evidence  the  petitioner  should  file  a  supple- 
mental bill  or  answer  as  the  case  may  be.^^ 

All  depositions  taken  before  the  original  hearing,  though  not 
then  used,  may  be  read,^^  and  the  plaintifif  may  withdraw  from 
evidence  any  portion  of  the  answer  read  before. 3*  No  new  evi- 
dence can  be  used  in  support  of  the  original  issues,  unless  a  sup- 
plemental bill  has  been  filed ;  ^5  but  exhibits  not  previously  used 
may  be  produced ;  ^e  and  if  a  witness  has  since  the  former  hear- 
ing been  convicted  of  perjury,^'  or  admitted  receiving  a  bribe  to 
influence  his  testimony,^*  that  may  be  proved  to  the  court.  Evi- 
dence taken  upon  an  accounting  cannot  be  ofi:"ered  against  a  per- 
son not  a  party  to  such  accounting  unless  it  is  equivalent  to  an 
admission  upon  his  part.^^ 

After  one  rehearing,  a  petition  for  another  can  only  be  filed 
by  special  leave  of  the  court,  and  may  be  taken  off  the  file  if  pre- 
sented without  such  leave.*** 

It  has  been  held  that  an  order  granting  a  rehearing  after  the 
time  prescribed  by  the  rules  has  expired  is  void,  i\ot  merely  void- 
able ;  and  that  a  party  does  not,  by  taking  a  subsequent  step  in 
the  cause,  waive  his  right  to  move  to  vacate  the  same.*^ 

The  grant  or  refusal,  absolute  or  conditional,  of  an  application 
for  a  rehearing,  which  has  been  made  in  due  time,  rests  in  the 
discretion  of  the  court  where  the  cause  is  first  heard,  and  is  not  a 
subject  of  appeal.*^    Affidavits  presented  in  support  of  a  motion 


32Sheeler  v.  Alexander,  211  Fed. 
544,  547. 

33  Cunyngham  v.  Cimyngham, 
Ainb.  89,  90. 

34Allfrey  v.  Allfrey,  1  Macn.  & 
G.  87;  Ogle  v.  Morgan,  1  De  G.,  M. 
&  G.  359. 

35  Jenkins  v.  Eldredge,  3  Story, 
299;  infra,  §  194. 

36  Herring  v.  Clobery,  Cr.  &  Ph. 
251. 

37  Needhani  v.  Smith,  2  Vern.  463. 

38  Ibid. 

39  Weston    El.    Instrument    Co.    v. 


Empire  El.  Instrument  Co.,  166  Fed. 
867. 

40  Moss  V.  Baldoek,  1  Phila.  118. 

41  Glenn  v.  Lucas,  43  Fed.  550. 

42  Roemer  v.  Bernheim,  132  U.  S. 
103,  106,  33  L.  ed.  277,  279;  Buffing- 
ton  V.  Harvey,  95  U.  S.  99,  100,  24 
L.  ed.  381,  382;  Steines  v.  Frank- 
lin County,  14  Wall.  15,  22,  20  L. 
ed.  846,  848;  Railway  Co.  v.  Heck, 
102  U.  S.  120,  26  L.  ed.  58;  Kennou 
V.  Gilmer,  131  U.  S.  22,  24,  33  L.  ed. 
110,  111;  Boesch  v.  Graff,  133  IT.  S. 
697,   699,   33    L.    ed.    787,    788.      So 


§  446]    SUPPLEMENTAL  BILLS  LV   NATURE  OF  lULLS  OF  REVIEW      2177 

for  a  rehearing  which  was  denied,  cannot  be  considered  on  an 
appeal  from  the  final  decree." 

§446.  Supplemental  bills  in  the  nature  of  bills  of  review. 
A  supplemental  bill  in  the  nature  of  a  bill  of  review  is  a  bill  that 
brings  to  the  attention  of  the  court  new  matter,  which  has  ari.sen 
or  been  discovered  since,  and  could  not  by  the  exercise  of  due 
diligence  have  been  discovered  before,  the  time  for  taking  testi- 
mony in  a  cause  expired,  and  which  the  party  filing  the  bill  al- 
leges as  a  reason  why  a  decree  made  and  passed  therein,  but  not 
signed  and  enrolled,  should  be  reversed  or  modified.^  Such  a  bill 
cannot  be  filed  after  a  decree  has  been  signed  and  enrolled.^ 
The  proper  remedy  in  a  similar  case  then  is  a  bill  of  review.^ 

A  supplemental  bill  in  the  nature  of  a  bill  of  review  cannot  be 
used  to  obtain  a  reversal  or  modification  of  a  decree  for  errors 
in  law  apparent  upon  its  face.* 

That,  before  enrollment,  can  only  be  done  by  means  of  a  peti- 
tion for  a  rehearing.5  A  bill  setting  up  newly  discovered  evi- 
dence, tending  to  show  the  invalidity  of  a  patent,  was  described 
as  a  supplemental  bill  in  the  nature  of  a  bill  of  review,  in  the 
permission  granted  to  file  it.^ 

Matter  of  revivor  and  supplement  may  be  incorporated  in 
such  a  supplemental  bill.''' 

An  English  chancery  order  made  on  the  17th  of  October,  1841, 
and  which  should  probably  be  followed  here,  the  clerk  taking 
the  place  of  the  registrar  and  five  dollars  being  reckoned  as  a 
pound  sterling,  provides:     "'That  no  supplemental  bill,  or  bill 
in  the  nature  of  a  review,  grounded  upon  new  matter  discovered, 
or  pretended  to  be  discovered,  since  the  pronouncing  of  any 
decree  of  this  court,   in  order  to  the  reversing  or  varying  of 
such  decree  shall  be  exhibited  without  the  special  leave  of  the 
court  first  obtained  for  that  purpose,  and  unless  the  party  ex- 
held   of  an  application  to   set  aside  2Beames'  Orders,  1. 
an  adjudication  of  bankruptcy.     Re           3  See  §§  447,  449. 
Columbia  Keal  Estate  Co.,  C.  C.  A.,           4  Perry  v.  Phelips,  17  \'cs.  17:5. 
112  Fi-d.  64:5,  646.  5  See   §445. 

43  (iiies   V.    Heysinger,    1.')ii    V.    S.  6  Kelley  v.  Diamond  Drill  &   Ma- 

627,  6;n,  .•■.7  L.  ed.  Il2()4,  1205.  chine  Co.,  C.  C.  A.,  l.Ui  Fed.  8."). 

§446.     1  Perry  V.   I'helps,   17   Ves.  7  Perry    v.    Plielips.    17    Ves.    176 

17.!;  Mitford's  PI.,  eh.  1,§2;  Moore        178. 
V.   Moore,  2  Ves.   Sen.   596;    Story's 
Eq.  PI.  §§  422,  42:5. 


2178  CORRECTION  OF  DECREES  [§  446 

hibiting  the  same  do  first  deposit  with  the  registrar  of  this  court 
so  much  money  as  together  with  the  deposit  by  the  rules  of  this 
court  required  to  be  made  on  obtaining  a  rehearing  of  the  cause 
or  causes  wherein  such  decree  was  pronounced  will  make  up  the 
sum  of  50^.,  as  a  pledge  to  answer  such  costs  and  damages  as 
shall  be  awarded  to  the  adverse  party,  in  case  the  court  shall 
think  fit  to  award  any  at  the  hearing  of  the  cause  on  such  sup- 
plemental or  new  bill."  ^ 

A  supplemental  bill  in  the  nature  of  a  bill  of  review  should 
state  the  facts  which  it  is  desired  to  prove,  and,  if  they  had 
then  occurred,  the  reason  why  they  were  not  discovered  and 
given  in  evidence  before  publication,  and  it  seems  should  state 
positively  that  the  decree  has  not  been  enrolled,  and  not  in  the 
alternative,  praying  one  sort  of  relief  as  upon  a  bill  of  review, 
if  the  decree  has  been  enrolled,  and  if  not  enrolled,  then  to  have 
the  benefit  of  it  as  upon  a  supplemental  bill  in  the  nature  of  a 
bill  of  review.^  Such  a  bill  should  conclude  with  a  prayer  that 
the  cause  be  reheard.  It  should  be  signed  by  counsel,  and  in 
other  respects  conform  to  the  requirements  of  a  bill  of  review 
upon  newly  discovered  facts."  Like  that,  it  can  only  be  filed 
by  leave  of  the  court,  which  is  obtained  in  the  same  way,  and 
upon  the  same  grounds  as  leave  to  file  such  a  bill  of  review ;  *^ 
and  the  proceedings  upon  the  two  kinds  of  bills  are  also  sub- 
stantially the  same.i2  g^^  according  to  Lord  Redesdale,  "Bills 
in  the  nature  of  bills  of  review  do  not  appear  subject  to  any 
peculiar  cause  of  demurrer,  unless  the  decree  sought  to  be  re- 
versed does  not  affect  the  interest  of  the  person  filing  the  bill."  " 

Laches  may  be  a  ground  for  refusing  leave  to  file  a  supple- 
mental bill  in  the  nature  of  a  bill  of  review,  unless  such  laches  is 
extenuated  by  laches  on  the  part  of  the  defendant  to  it.^* 

Such  a  bill  cannot  be  heard  unless  accompanied  by  a  petition 
for  a  rehearing,  when  the  rehearing  of  the  original  and  the  hear- 

8  Order    of    17th    October,    1741;  11  Story 's  Eq.  PI.,   §  422. 
Beanies'   Orders,  368.  12  Story 's  Eq.  PI.,  §§422-425. 

9  Story's  Eq.   PI.,   §425.    See  the  ISMitford's  PI.,  eh.  1,  §3,  pt.  3. 
language    of   Lord    Eldon   in   Perry  14  Story's    Eq.    PL,    §423;    Shef- 
V.  Phelips,  17  Ves.  173-178.  field  Canal  Co.  v.  Sheffield  &  R.  Ry. 

10  Story's    Eq.    PI.,    §§422,    425;       Co.,  1  Phillips,  484. 
Bennett    v.    Sehooley,    77    Fed.    352. 

See  infra,  §  448. 


§  447a] 


BILLS   OF    REVIEW    FOR    ERRORS   OF    LAW 


2179 


ing  of  the  supplemental  cause  will  be  set  down  together.^^  Such 
a  bill  cannot  be  filed  to  set  aside  or  to  reopen  an  interlocutory 
order  or  decree.^® 

§447.  Bills  of  review.  A  bill  of  review  is  a  bill  filed  to 
reverse  or  modify  a  decree  that  has  been  signed  and  en- 
rolled for  error  in  law  apparent  upon  the  face  of  such  decree, 
or  on  account  of  new  facts  discovered  since  publication  was 
passed  in  the  original  cause,  and  which  could  not  by  the  exercise 
of  due  diligence  have  been  discovered  or  used  before  the  decree 
was  made.^  A  bill  of  review  can  only  be  filed  to  impeach  a  final, 
not  to  impeach  an  interlocutory  decree.^  For  an  interlocutory 
decree  can  always  be  modified  or  reversed  by  the  court  without 
any  bill  for  that  purpose.^  But  the  expression  ' '  final  decree ' '  is 
here  used  with  the  meaning  given  it  when  speaking  of  appeals.* 

It  has  been  held  that  such  a  bill  of  review  is  in  the  nature  of  a 
w'rit  of  error,  and  must  be  governed  practically  by  the  same  rules 
that  control  the  appellate  court,  when  considering  writs  of  error.^ 
A  bill  to  review  can  not  be  filed  in  the  appellate  court.^  A  bill 
of  review  treats  of  matters  as  they  exist  at  the  time  it  is  filed.'' 

§  447a.  Bills  of  review  for  errors  of  law.  The  errors  of  law 
for  which  a  decree  may  be  reversed  or  modified  must  be  clearly 
apparent  upon  the  record,  that  is,  "only  such  as  arose  upon  the 
pleadings,  proceedings,  and  decree,  without  reference  to  the  evi- 
dence in  the  cause;"  ^  as,  for  example,  the  disregard  of  a  statute,^ 


15  Moore  v.  Moore,  2  Ves.  Sen. 
596,  598;  Perry  v.  Phelips,  17  Ves. 
173. 

16  C.  &  A.  Potts  Co.  V.  Creager,  71 
Fed.  574. 

§447.  IMitford's  PL,  ch.  1,  §3, 
pt.  3;  Story's  Eq.  PI.,  §§403^20; 
Irwin  V.  Meyrose,  7  Fed.  533;  Nickle 
V.  Stuart,  111  U.  S.  776;  28  L. 
ed.  599;  Scotten  v.  Littlefield,  235 
U.  S.  487;  Freeman  v.  Clay,  C.  C. 
A.,  52  Fed.  1. 

2  Jenkins  v.  Eldredge,  3  Story, 
299;    Story's  Eq.  PI.,  §  408a. 

3  Story's  Eq.  PL,  §  408a.  See 
supra,  §  255. 

4  Story's  Eq.  PL,  §408a;  Whit- 
ing V.  Bank  of  U.  S.,  13  Pet.  6,  15, 
10   L.  ed.   33,   37;     Ray  v.   Law,   3 


Cranch,  179,  2  L.  ed.  404;  Jenkins 
V.  Eldredge,  3  Story,  299.  Supra. 
§397. 

6  Aeord  v.  Western  Pocahontas 
Corporation,   156  Fed.  989. 

6  Omaha  El.  Light  &  Power  Co.  v. 
City  of  Omaha,  C.  C.  A.,  216  Fed. 
848. 

7  Thomas  v.  South  Butte  Min.  Co., 
C.  C.  A.,  230  Fed.  968. 

§  447a.  1  Bradley,  J.,  in  Buffiing- 
ton  V.  Harvey,  95  U.  S.  99,  24  L.  ed. 
381.  See  also  Whiting  v.  Bank  of 
r.  S.,  13  Pet.  6,  10  L.  ed.  33;  Put- 
nam V.  Day,  22  Wall.  60,  22  L.  ed. 
764;  Thompson  v.  Maxwell,  95  U.  S. 
391,  24  L.  ed.  481. 

2 Story's  Eq.  PL,  §405;  Gregor 
V.  Molesworth,  2  Ves.  Sen.  109. 


2180 


CORRECTION  OF   DECREES 


[§447a 


or  want  of  jurisdiction,^  or  the  finding  of  a  fact  contrary  to  an 
allegation  in  a  defendant 's  answer  when  no  evidence  was  taken ;  * 
not  errors  in  drawing  conclusions  from  evidence,*  nor  errors  in 
casting  accounts,^  nor  it  seems  in  matters  of  abatement,'  nor  in 
the  exercise  of  discretion,*  nor  matters  of  form,^— among  which 
however,  the  omission  of  a  clause  giving  an  infant  defendant  a 
day  in  which  to  show  cause  against  a  decree  is  not  included,  and 
on  that  ground  a  bill  of  review  may  be  sustained.^"  It  has  been 
held  to  be  no  sufficient  ground  for  a  bill  of  review  that  since  the 
decree  a  State  court  has  given  to  the  constitution  of  the  State  a 
construction  different  from  that  put  upon  it  by  the  Federal  court 
in  its  decree ;  "  nor  that  since  the  decree  the  Supreme  Court  has 
changed  its  ruling  upon  a  question  of  law  or  fact.^'' 

In  England,  where  the  mandatory  part  of  a  decree  was  usually 
preceded  by  a  statement  of  the  facts  upon  which  it  was  founded, 
only  the  decree  itself  could  be  examined  for  such  errors ;  ^^  but 
in  the  Federal  courts  where  this  custom  does  not  exist,  the  whole 
record  may  be  thus  examined,^*  but  not  the  evidence  at  large.i* 

It  is  improper  for  a  bill  of  review  on  account  of  errors  of  law 


3  Ketchum  v.  farmers '  L.  &  T. 
Co.,  4  McLean,  1;  Miller  v.  Clark, 
47  Ted.  850;  s.  c,  52  Fed.  900. 

4  Clark  V.  Killian,  103  U.  S.  766, 
26  L.  ed.  607. 

5  Whiting  v.  Bank  of  U.  S.,  13 
Pet.  6,  10  L.  ed.  33;  Dexter  v.  Arn- 
old, 5  Mason,  303;  Putnam  v.  Day, 
22  Wall.  60,  22  L.  ed.  764;  Buffing- 
ton  V.  Harvey,  95  U.  S.  99,  24  L.  ed. 
381;  Kimberley  v.  Arms,  40  Fed. 
548;  s.  c,  136  U.  S.  629,  34  L.  ed. 
557;  Jourolman  v.  Ewing,  85  Fed. 
103. 

6Massie  v.  Graham,  3  McLean, 
41;  Beames'  Ord.  1;  Story's  Eq. 
PI.,  §405. 

7  Story's  Eq.  PI.,  §411;  Hartwell 
V.  Townsend,  6  Bro.  Pari.  107; 
Slingsby  v.  Hale,  1  Ch.  Cas.  122. 

SBuffington  v.  Harvey,  95  IT.  S. 
99,  24  L.  ed.  381 ;  Irwin  v.  Meyrose, 
7  Fed.  533. 


9  Story  's  Eq.  PI.,  §  411. 

10  Story's  Eq.  PI.,  §407;  Perry 
V.  Phelips,  17  Ves.  173;  Gregor  v, 
Molesworth,  2  Ves.  Sen.  109.  See 
supra,  401. 

11  King  V.  Dundee  M.  &  Tr.  I.  Co., 
28  Fed.  33;  Hoffman  v.  Knox,  50 
Fed.  484. 

12  Tilghman  v.  Werk,  39  Fed.  680; 
Seotten  v.  Littlefield,  235  U.  S.  407; 
Hopkins  V.  Hebard,  235  U.  S.  287. 

13  Story 's  Eq.  PL,   §  407. 

14  Whiting  v.  Bank  of  U.  S.,  13 
Pet.  6,  10  L.  ed.  33;  Buffington  v. 
Harvey,  95  U.  S.  99,  24  L.  ed.  381; 
Clark  V.  Killian,  103  U.  S.  766,  26 
L.  ed.  607. 

15  Ibid.  Quinton  v.  Neville,  C.  C. 
A.,  152  Fed.  879;  Aeord  v.  Western 
Pocahontas  Corporation,  156  Fed. 
989. 


§447a] 


]JILLS   OF    REVIEW    FOR    EKUCRS    OF    LAW 


2181 


lo  contain  a  statement  of  the  evidence  in  the  oi-ijrinal  cause. ^^ 
The  plaintiff  was  not  allowed  to  i)iit  his  case  in  ihc  alternative, 
as  a  bill  of  review,  or,  if  the  court  should  think  it  not  jrood  as 
such,  then  as  a  bill  of  revivor  and  supj^lement.^'  A  bill  of  review, 
which  sought  relief  because  the  orij^inal  decree  was  erroneous  for, 
errors  of  law  appearing  on  its  face,  and  because  of  tlie  discovery 
of  new  facts,  and  because  of  fraud,  has  been  iield  multifarious.^* 

P^acts,  which  are  inconsistent  with  tlie  jileadings  and  decrees 
in  the  original  cause,  when  alleged  in  a  bill  of  review,  not 
founded  uj)0ii  newly  discovered  evidence,  cannot  be  considei-ed.^® 
Hills  of  review  for  errors  apparent  upon  the  record  may  l»e  tiled 
after  the  term  at  which  the  decree  sought  to  be  corrected  was 
entered,^®  but  not  after  the  expiration  of  the  time  limited  foi-  an 
appeal, 2^  except  under  extraordinary  circumstances. 

Where,  however,  such  a  bill  was  presented  for  filing  within  the 
time  and  the  court  delayed  passing  upon  the  ai)plication  until 
subsequently,  it  was  treated  as  filed  upon  the  day  when  it  was 
presented.^^ 

A  decree  directing  a  sale  is  final  and  not  subject  to  a  bill  of 
review  filed  after  the  expiration  of  the  time  allowed  for  an  appeal 
although  it  reserves  the  questions  concerning  the  distribution  of 
the  proceeds  of  the  sale.^^ 

Where  the  Circuit  Court  of  Appeals  had  inadvertently 
directed  a  complete  reversal  of  the  decree  below  together  with  a 
dismissal  of  the  bill  with  costs,  the  Circuit  Court  had  entered  a 
decree  of  dismissal  with  costs,  in  accordance  with  .such  mandate, 
and  the  Supreme  Court  had  denied  a  petition  for  a  certiarari, 
the  ease  not  being  appealable  thereto ;  after  payment  of  the  co.sts 


16Buffington  v.  Harvey,  9o  U.  S. 
99,  24  L.  ed.  :;81. 

17  Perry  v.  Pliclips,  17  Ves.  173. 

18  Kimberly  v.  Arms,  40  Fed.  548, 
559;  s.  C,  136  U.  S.  629,  34  L.  ed. 
557. 

19Fraenkl  v.  Cerccedo,  216  U.  S. 
295,  54  L.  ed.  486. 

20  Lewis  v.  Holmes,  C.  C.  A.,  224 
Fed.  410. 

21  Quinton  v.  Neville,  C.  C.  A.,  152 
Fed.  879. 

22  Home    St.    L.    Co.    v.    City    of 

Fed.PriU".  Vol.  1 1— 07 


Lincoln,  C.  C.  A.,  162  Fed.   133. 

23  Thomas  v.  Harvie 's  Heirs,  10 
Wheat.  146,  6  L.  ed.  287;  Kennedy 
v.  Georgia  State  Bank,  8  How.  586, 
12  L.  ed.  1209;  Clark  v.  Killian,  103 
V.  S.  766,  26  L.  ed.  607;  Story's  Eq. 
I'l.,  S410;  Cocke  v.  Copeniiaver,  C. 
C.  A.,  126  Fed.  145.  See  also  Massie 
v.  Graham,  3  McLean,  41;  McDon- 
ald V.  Whitney,  39  Fed.  466;  Rector 
v.  Fitzgerald,  C.  C.  A.,  59  Fed.  808; 
Home  St.  Ky.  Co.  v.  City  of  Lin- 
coln, C.  C.  A.,  162  Fed.  133. 


2182 


CORRECTION  OF  DECREES 


[§  447a 


by  the  complainant,  the  Circuit  Court  of  Appeals  granted  him 
leave  to  file  a  bill  of  review  in  the  Circuit  Court  to  modify  its 
decree  upon  the  mandate,  so  as  to  provide  that  the  bill  of  com- 
plaint be  not  wholly  dismissed  and  part  of  the  injunctive  relief 
granted.^*  The  time  within  which  the  control  of  the  District 
Court  over  the  case  is  suspended  by  an  appeal  subsequently  dis- 
missed, is  not  included  in  the  computation  of  time ;  ^^  but  the 
period  between  the  entry  of  a  void  order  vacating  the  order 
sought  to  be  reviewed  and  the  vacation  of  such  void  order  is 
included.^^  Laches  for  a  shorter  period  of  time  might  be  a 
ground  for  dismissing  a  bill  of  review.^' 

It  has  been  held  that  a  bill  of  review  for  want  of  jurisdiction 
cannot  be  filed  after  the  term  of  the  decree,  unless  the  decree 
states  that  the  objection  was  duly  raised,  or  a  certificate  that  the 
question  of  jurisdiction  was  raised  has  been  made  during  the 
term.^* 

After  a  decree  has  been  affirmed  ^^  or  reversed  ^^  by  the  appel- 
late court,  it  cannot  be  reviewed  for  any  reason  without  leave  of 
that  tribunal ;  even  if  the  affirmance  was  by  a  divided  court.^^ 
But  it  was  held  that  a  Circuit  Court  might,  without  leave  of  the 
Supreme  Court,  entertain  a  bill  to  enjoin  the  enforcement  of  a 
judgment  against  the  complainant  upon  a  mandate  of  the  Su- 
preme Court  on  the  ground  that  the  complainant  was  not  in  fact 
a  party  to  such  judgment  nor  bound  thereby.^^ 

Leave  to  make  such  an  application  to  the  court  below  should 
be  inserted  in  the  mandate  of  the  appellate  court.^^    Leave  will 


24  Taber-Castell  v.  Faber,  C.  C.  A., 
145  Fed.  626. 

25  Ensminger  v.  Powers,  108  U.  S. 
292,  27  L.  ed.  732.  See  Be  Brown, 
213  Fed.  701. 

26  Central  Trust  Co.  v.  Grant  Lo- 
comotive Works,  135  U.  S.  207,  34 
L.  ed.  97. 

27  Farmers'  Loan  &  Trust  Co.  v. 
Green  Bay  &  M.  E.  Co.,  16  Fed. 
100,  113;  Duncan  v.  Atlantic  M.  & 
O.  E.  Co.,  88  Fed.  840;  Acord  v. 
Western  Pocahontas  Corporation, 
156  Fed.  989. 

28Chamberlin  v.  Peoria,  D.  &  E. 
Ey.  Co.,  C.  C.  A.,  118  Fed.  32. 


29  Southard  v.  Eussell,  16  How. 
547,  14  L.  ed.  1052;  Kingsbury  v. 
Buckner,  134  IT.  S.  654,  33  L.  ed. 
1050;  Kimberly  v.  Arms,  40  Fed. 
548;  s.  c,  136  U.  S.  629,  34  L.  ed. 
557;  Watson  v.  Stevens,  C.  C.  A.,  53 
Fed.  31;  Franklin  Savings  Bank  v. 
Taylor,  C.  C.  A.,  53  Fed.  854;  Suhor 
V.  Gooch.  C.  C.  A.,  248  Fed.  870; 
infra,  §  448. 

30  Suhor  V.  Gooch,  248  Fed.  870. 

31  Leslie  v.  Town  of  Urbana,  C.  C. 
A.,  56  Fed.  762. 

32  Brown  v.  Walker,  84  Fed.  532. 

33  Watson  v.  Stevens,  C.  C,  A.,  53 
Fed.    31,    35.      See    also    Society    of 


§  447a] 


BILLS  OF  REVIEW  FOR  ERRORS  OF  LAW 


2183 


rarely,  if  ever,  be  granted  then  to  file  a  bill  of  review  for  errors 
in  law.^3^  Leave  of  court  is  not  needed  to  enable  a  party  to  file 
a  bill  of  review  for  errors  apparent  upon  the  face  of  the  record.^* 

A  bill  of  review  cannot  be  filed  in  the  appellate  eourt.'^ 

A  bill  of  review  must  show  specifically  the  errors  in  the  record 
of  which  the  complaint  is  inade.^^  An  allegation  that  defend- 
ant's attorney  "wrongfully"  entered  the  judgment  complained 
of  is  merely  a  conclusion  of  law  which  will  be  disregarded.'' 

An  aspect  of  the  claim  cannot  be  held  back  when  the  case  is  first 
presented  to  the  court  and  later  made  the  subject  of  a  bill  of 
review.^'  AVhere  the  assignments  of  error  upon  a  former  appeal 
were  sufficient  to  set  forth  a  question  not  then  presented  or 
argued,  such  question  cannot  ordinarily  be  made  the  basis  of  a 
subsequent  bill  of  review.'* 

The  bill  will  not  lie  unless  the  complainant  is  aggrieved  by  the 
decree,*"  although  he  might  have  insisted  on  the  error  at  the 
original  hearing  or  upon  appeal."  But  it  has  been  held  that 
this  bill  of  review  will  not  be  dismissed  because  it  does  not  appear 
that  the  complainant  thereto  would  be  benefited  or  the  defend- 
ant prejudiced  by  continuing  the  litigation.*^ 

Under  the  former  practice,  the  usual  defense  to  a  bill  of  review 
for  errors  apparent  upon  the  face  of  the  decree  was  a  demur- 
rer ;  *'  to  which  was  usually  joined  a  plea  setting  forth  in  full  the 
original  decree,  although  there  seems  to  have  been  no  necessity 
for  this  practice.**     Tf  the  demurrer  was  overruled,  the  decree 


Shakers  v.  Watson,  C.  C.  A.,  77  Fed. 
512. 

33a  Southard  v.  Bussell,  16  How. 
547,  14  L.  ed.  1052;  Kingsbury  v. 
Buckner,  134  U.  S.  650,  671;  Story's 
Eq.  PI.,  §408. 

34  Ross  V.  Prentiss,  4  McLean, 
106;  Lewis  v.  Holmes,  C.  C.  A.,  194 
Fed.  842;  Me  Brown,  213  Fed.  701; 
Farmers'  &  Merchants'  Bank  v. 
Arizona  M.  S.  &  L.  Ass'n,  C.  C.  A., 
220  Fed.  1. 

35  Omaha  Electric  Light  Sc  Power 
Co.  V.  City  of  Omaha,  C.  C.  A.,  216 
Fed.   848. 

36  Scoftcn  V.  Rosenblum,  231  Fed. 
357. 


37  Ibid. 

38  Seotten  v.  Littlefield,  235  U.  S. 
407. 

39  Be  Brown,  213  Fed.  701. 

40  U.  S.  V.  Salomon,  231  Fed.  461, 
464. 

41  Whiting  v.  U.  S.  Bank,  13 
Peters  6,  10  L.  ed.  33;  Burleigh  v. 
Flint,  105  U.  S.  247,  26  L.  ed.  986; 
IT.  S.  V.  Salomon,  231  Fed.  461,  464. 

42  Lewis  V.  Holmes,  C.  C.  A.,  194 
Fed.  842. 

43Mitford's  PI.,  eh.  2,  §2,  pt.  1, 
5.  Acord  V.  Western  Pocahontas 
Corporation,  156  Fed.  989. 

44  Ibid. 


2184 


CORRECTION  OF  DECREES 


[§448 


was  reversed  or  modified  and  the  errors  allowed,  and  no  further 
answer  or  hearing  was  necessary.*^  If  the  demurrer  was  sus- 
tained, that  had  all  the  effect  of  confirming  the  decree,  and  put 
an  end  to  the  suit.*^  The  rule  was  in  such  a  case  only  to  vary 
the  decree  upon  such  errors  as  were  complained  of,  except  as  to 
consequential  directions,  which  were  altered  to  conform  to  the 
changes  made.^'  It  was  held  that  such  a  bill  of  review  could  not 
be  dismissed  upon  motion  because  of  the  pendency  of  a  prior  bill 
to  review  the  same  proceedings.^^  If  a  bill  of  review  for  apparent 
error  contained  a  statement  of  the  evidence  taken  in  the  original 
cause,  that  might  have  been  stricken  out  of  the  bill  as  surplus- 
age on  motion  ;  ^^  or  it  might  have  been  a  ground  of  demurrer,  if 
specially  assigned;  ^°  but  the  bill,  if  otherwise  good,  could  be  dis- 
missed for  that  reason  upon  a  general  demurrer,^^  although  such 
evidence  or  an  allegation  of  an  error  of  fact  could  on  a  general 
demurrer  be  used  in  support  of  the  bill.^^ 

§  448.  Provisions  peculiar  to  bills  of  review  for  matters  of 
fact  newly  discovered.  Bills  of  review  upon  matters  of  fact 
newly  discovered  can  be  filed  only  by  express  leave  of  the  court. ^ 
Such  a  bill  can  be  filed  at  a  terra  subsequent  to  the  entry  of  the 
decree,^  even  if  the  original  decree  was  entered  by  default  ^  or 
recites  that  it  was  entered  on  consent,  which  the  bill  of  review 
charges  not  to  have  been  given.* 

It  has  been  said  that  a  bill  of  review  for  matters  of  fact,  can 
be  allowed,  although  the  original  decree  was  entered  by  default .^ 
It  has  been  held  that  an  objection  that  a  collusive  transfer  of  the 


45  Cook  V.  Bamfield,  .3  Swaiist.  607. 

46  Webb  V.  Pell,  3  Paige  (N.  Y.), 
368. 

47  Moore    v.    Moore,    2    Ves.    Sen. 
596,  598. 

48  Lewis  V.  Holmes,  C.  C.  A.,  194 
Fed.  842. 

49  Bradley,    J.,    in    Buffington    v. 
Harvey,  95  U.  S.  99,  24  L.  ed.  381. 

50  Buffington  v.  Harvey,  95  U.   S. 
99,  24  L.  cd.  381. 

51  Ibid. 

52Shelton   v.   Van   Kleeck,   106  V. 
S.  582,  27  L.  ed.  269. 

§448.      lAnon.,    2    P.   Wms.    283, 


Perry  v.  Phelips,  17  Ves.  173;  Ross 
V.  Prentiss,  4  McLean,  106;  Story's 
Eq.  PL,   §412. 

2  Taylor  v.  Easton,  C.  C.  A.,  180 
Fed.  363,  368;  Acord  v.  Western 
Pocahontas  Corporation,  156  Fed. 
989. 

3  Acord  V.  Western  Pocahontas 
Corporation,  156  Fed.  989. 

4  Kaw  Valley  Drainage  Dist.  v. 
Union  Pac.  R.  Co.,  C.  C.  A.,  163 
Fed.  836. 

5  Acord  V.  Western  Pocahoirtas 
Corporation,  156  Fed.  9S9. 


§  448]  HILLS  OP  REVIKW  FOR  NEWLY  DISCOVERED  FACTS 


2185 


subject-matter  of  the  suit  was  made,  for  the  purpose  of  confer- 
i-ing  Federal  jurisdiction,  cannot  be  taken  for  the  tirst  time  after 
final  decree  has  been  entered  and  the  term  ended.® 

Leave  should  be  obtained  by  a  petition  praying  for  leave  to 
file  the  bill,  and  supported  by  an  affidavit  showing  that  the  new 
matter,  which  it  is  desired  to  prove,  was  not  known  to  the  peti- 
tioner, and  could  not  have  been  discovered  hy  him,  with  the 
exercise  of  due  diligence,  in  time  to  prove  it  before  the  entry  of 
the  decree  sought  to  be  reviewed."''  It  seems  that  the  affidavit 
must  be  positive,  and  not  merely  upon  information  and  belief.' 

Previous  knowledge  of  it  by  the  petitioner's  attorney  or  other 
agent  while  acting  in  that  capacity,  is  equivalent  to  knowledge 
by  the  petitioner,  and  will  be  a  reason  for  refusing  to  allow  him 
to  file  the  bill.^  If  the  newly  discovered  facts  are  proved  by 
documents  that  were  under  the  control  of  the  petitioner,  very 
good  reasons  for  his  not  discovering  and  producing  them  before 
must  be  shown  in  order  to  entitle  him  to  file  a  bill  of  review 
founded  upon  them.^®  Leave  was  denied  when  the  newly  dis- 
covered evidence  consisted  chiefly  of  public  records,  and  the  only 
excuse  was  the  poverty  and  ignorance  of  the  plaintiffs  and  the 
default  of  their  counsel,  there  being  no  charge  of  fraud  or  col- 
lusion." Also  when  the  complainant  was  a  speculative  pur- 
chaser and  the  defendants  had  bought  the  laud  alt'ected  in  good 
faith  for  a  valuable  consideration  subse(iuent  to  the  decree  sought 
to  be  reviewed. ^^ 

The  affidavit  should  also  state  the  nature  of  the  new  matter, 


6  Anon.,  342  P.  Wms.  283;  Perry 
V.  Plielp.s,  17  Vcsey,  77."?;  Ross  v. 
Prentice,  4  McLean,  106. 

7  Wortley  v.  Birkliead,  2  Ves.  Sen. 
571;  Young  v.  Keighly,  16  Ves.  348; 
Pureell  v.  Miner,  4  Wall.  r>19,  18 
L.  ed.  459;  Dexter  v.  Arnold,  5  Ma- 
son, 303;  Massie  v.  Graham,  3  Mc- 
Lean, 41 ;  Ross  V.  Prentiss,  4 
McLean,  106;  Thomas  v.  Soutli 
Butte  Mining  Co.,  C.  C.  A.,  230  Fed. 
968;  Scotter  v.  Rosenblum,  231  Fed. 
357:   Story's  Eq.  IM.,  SS  412,  413. 


8  Page  V.  Holmes  B.  A.  Tel.  Co., 
2   Fed.  330. 

SNorris  v.  Le  Neve,  3  Atk.  26; 
Greenlee  v.  McDowell,  4  Ired.  Eq. 
(N.  C.)  481;  Story's  Eq.  PI., 
SS413,   414. 

10  Forum  Romanum,  187. 

11  Acord  V.  Western  Pocahontas 
Corporation,  156  Fed.  989.  See  Jor- 
genson  v.  Young,  C.  C.  A.,  136  Fed. 

;;78. 

12  Hopkins   v.    Hol.ard,   23.1    V.   S. 

287. 


2186 


CORRECTION  OP   DECREES 


[§448 


and  the  evidence  desired  to  be  given  in  its  support,  in  order  that 
the  court  may  judge  of  its  relevancy  and  materiality.^' 

The  bill  will  not  be  sustained  in  a  case  where  if  it  were  at 
common  law  a  motion  for  a  new  trial  because  of  newly  discovered 
evidence  would  be  denied.^* 

The  evidence  must  be  not  only  new,  but  material,^^  relevant, 
and  not  merely  hearsay,^^  nor  incompetent,^'  such  as,  if  not 
answered  in  point  of  fact,  would  clearly  entitle  the  plaintiff  to  a 
decree  and  show  that  the  decree,  of  which  complaint  is  made,  has 
deprived  him  of  some  substantial  equity,^*  or  would  raise  a  ques- 
tion of  so  much  nicety  and  difficulty  as  to  be  a  fit  subject  of 
judgment  in  the  cause.^^  The  new  matter  may  be  concerning  a 
point  not  in  issue  in  the  original  cause,^"  provided  that  it  be 
connected  with  the  subject-matter  of  the  bill.^^ 

A  bill  of  review  will  not  lie  on  the  ground  of  newly  discovered 
evidence  which  is  merely  cumulative,^^  or  goes  to  impeach  the 
character  of  witnesses  ^'  or  shows  a  defense  that  is  purely  tech- 
nical.^* 

Where  the  error  shown  by  the  new  evidence  would  be  offset 
hy  an  error  committed  in  favor  of  the  complainant  to  the  bill 
of  review  leave  to  file  the  bill  will  be  denied. ^^ 

It  has  been  held  that  a  bill  of  review  will  not  lie  on  the  ground 


13  U.  S.  V.  Sampeyreac,  Hempst. 
118;  Dexter  v.  Arnold,  5  Mason, 
303;  Massie  v.  Graham,  3  McLean, 
41;  Story's  Eq.  PL,  §412. 

14Suhor  V.  Gooeh,  C.  C.  A.,  248 
Fed.  870. 

15  0rd  V.  Noel,  6  Madd.  127; 
Jorgensen  v.  Young,  C.  0.  A.,  136 
Fed.  378;  Ward  v.  Ward,  C.  C.  A., 
149  Fed.  204;  Eichardson  v.  Lowe, 
C.  C.  A.,  149  Fed.  625. 

16  Ward  V.  Ward,  C.  C.  A.,  149 
Fed.   204. 

17  Ward  V.  Ward,  C.  C.  A.,  149 
Fed.  204;  Acord  v.  Western  Poca- 
hontas Corporation,  156  Fed.  989. 

18  Keith  v.  Alger,  C.  C.  A.,  124 
Fed.  32;  Nowell  v.  International 
Trust  Co.,  C.  C.  A.,  203  Fed.  95; 
McClintock  v.  City  of  Pawtucket,  C. 
C.    A.,    209    Fed.    361;     Scotten    v. 


Eosenbhim,  231  Fed.  357;   Suhor  v. 
Gooch,  C.  C.  A.,  248  Fed.  870. 

19  Ibid. ;  Ord  V.  Noel,  6  Madd.  127. 

20  Partridge  v.  Osborne,  6  Russ. 
195. 

21 U.  S.  V.  Sampeyreac,  Hempst. 
118. 

22  Southard  v.  Eussell,  16  How. 
Pr.  547;  Eichardson  v.  Lowe,  C.  C. 
A.,  149  Fed.  625;  Acord  v.  Western 
Pocahontas  Corporation,  156  Fed. 
989. 

23  Southard  v.  Eussell,  16  How. 
547,  14  L.  ed.  1052;  Acord  v.  West- 
ern Pocahontas  Corporation,  156 
Fed.   989. 

24  Keith  V.  Alger,  C.  C.  A.,  124 
Fed.  32;  Lincoln  Gas  &  El.  Light 
Co.  V.  City  of  Lincoln,  250  U.  S.  256. 

25  Ibid. 


§448] 


BILLS  OF  REVIEW  FOK  NEWLY  DISCOVERED  FACTS 


2187 


that  a  decree  offered  in  evidence  in  the  original  .suit  and  there 
held  to  be  res  adjudicata  has  since  been  set  aside  for  want  of 
jurisdiction,  unless  it  is  shown  that  the  defect  in  the  jurisdiction 
could  not  have  been  known  or  discovered  by  the  exercise  of 
reasonable  diligence  when  the  decree  was  offered  in  evidence.^* 

It  has  been  said  that  the  matter  upon  the  discovery  of  which 
a  bill  of  review  is  based,  if  previously  known  to  the  other  party, 
must  be  of  such  a  nature  that  he  was  not  in  conscience  obliged 
to  have  discovered  it  to  the  court ;  for  if  it  was  known  to  him 
and  such  as  in  conscience  he  ought  to  have  discovered,  he  ob- 
tained the  decree  by  fraud,  and  it  ought  to  be  set  aside  by  an 
original  bill.^' 

A  bill  of  review  deals  with  the  state  of  things  existing  at  the 
time  it  is  filed.^^ 

Permission  to  file  a  bill  of  review  is  always  in  the  discretion  of 
the  court ;  ^®  subject  to  review  upon  appeal,^''  and  lapse  of  time 
since  the  discovery  of  the  new  matter  will  always  have  great 
weight  in  inducing  the  court  to  look  with  disfavor  upon  an  ap- 
plication for  leave  to  file  such  a  bill  of  review.^* 

A  refusal  of  witnesses  to  state  what  their  testimony  would  be 
is  no  ground  for  granting  permission  to  file  such  a  bill  of  review 
when  the  complainant  thereto  knew  that  they  had  some  knowl- 
edge concerning  the  matter  in  controversy.^^ 

Ordinarily,  permission  will  be  refused,  after  the  time  to  ap- 
peal has  expired,  without  an  appeal.^^  When  to  reopen  the  de- 
cree would  be  productive  of  mischief  to  innocent  parties,  leave 
may  be  denied.^*    It  has  been  said,  that  the  question  of  diligence 


26Vetterlein  v.  Barker,  45  Fed. 
74. 

27  Manaton  v.  Molesworth,  1  Eden, 
18,  25.  But  see  U.  S.  v.  Sampey- 
reae,  Hempst.  118;  s.  c,  as  Sampey- 
reac  v.  U.  S.,  7  Pet.  222,  8  L.  ed. 
665;  Bennett  v.  Schooley,  77  Fed. 
352;  Municipal  S.  Co.  v.  Gamewell 
F.  A.  Tel.  Co.,  77  Fed.  452. 

28  Thomas  v.  South  Butte  Mining 
Co.,  C.  C.  A.,  230  Fed.  968. 

29  Beames '  Orders,  1 ;  Hopkins  v. 
Hebard,  235  U.  S.  287;  Massie  v. 
Graham,  3  McLean,  41;  Story's  Eq. 
PI.,  §§  404,  417. 


30  Hopkins  v.  Hebard,  C.  C.  A., 
194  Fed.  301. 

31  Blandy  v.  Griffith,  6  Fisli.  Pat. 
Cas.  434;  Thomas  v.  Harvie,  10 
Wheat.  146,  151,  6  L.  ed.  287,  289; 
Tilgliman  v.  Werk,  39  Fed.  680; 
Hopkins  v.  Hebard,  C.  C.  A.,  194 
Fed.  301;  Story's  Eq.  PL,  §419. 

32  Novelty  Tufting  Mach.  Co.  v. 
Busor,  C.  C.  A.,  158  Fed.  83. 

33  Jorgenson  v.  Young,  C.  C.  A., 
136  Fed.  378. 

34  Acord  v.  Western  Pocahontas 
Corporation,   156  Fed.  989. 


2188 


CORRECTION  OF  DECREES 


[§449 


is  preliminary,  and  having  been  once  disposed  of  by  permission 
to  file  the  bill,  it  will  not  again  be  considered  on  the  final  hear- 
ing ;  '^  but  such  a  bill  has  been  dismissed  because  leave  to  file 
the  same  was  improvidently  granted.^®  It  has  been  said  that  if 
the  decree  impeached  has  been  affirmed  by  an  appellate  court, 
such  a  bill  of  review  can  only  be  filed  by  leave  of  that  court ;  ^' 
but  that  in  the  absence  of  special  circumstances  leave  to  make 
the  application  to  the  court  below^  will  be  granted  by  the  court 
of  review,  as  of  course.^*  Such  leave  was  refused  where  the 
newly  discovered  evidence  had  it  been  in  the  original  record, 
clearly  could  not  have  changed  the  decision.^^  A  bill  of  review 
for  newly  discovered  matter,  if  filed  without  leave,  may  upon 
motion  be  dismissed  or  taken  off  the  file.*" 

§449.  Provisions  common  to  all  bills  of  review.  "To  en- 
title a  person  to  bring  a  bill  of  review,  it  is  necessary  that  he 
should  have  obeyed  or  performed  the  decree ;  as,  if  it  be  for  land, 
that  the  possession  be  yielded ;  if  it  be  for  money,  that  the  money 
be  paid ;  if  it  be  for  evidences,  that  the  evidences  be  brought  in ; 
and  so  in  other  cases  which  stand  upon  the  strength  of  the  decree 
alone.  But  if  any  act  be  decreed  to  be  done,  which  extinguishes 
the  party's  right  at  the  common  law,  as  making  of  assurance  or 
release,  acknowledging  satisfaction,  canceling  bonds  or  evidences, 
and  the  like,  those  parts  of  the  decree  are  to  be  spared  until  the 
bill  of  review  be  determined ;  but  such  sparing  is  to  be  warranted 
by  public  order  made  in  court.  "^  If,  however,  the  plaintiff  to 
the  bill  of  review  be  insolvent ,2  or  for  any  other  reason  it  be 


35  Kelley  Bros.  &  Spielman  v.  Dia- 
mond Drill  &  Machine  Co.,  142  Fed. 
8(j«. 

36  Acord  V.  Western  Pocahontas 
Corijoration,  156  Fed.  989;  Hopkins 
V.  Hebard,  C.  C.  A.,  194  Fed.  301. 

37  Southard  v.  Eussell,  16  How. 
547,  14  L.  ed.  1052. 

38  Seymour  v.  White  County,  C.  C. 
A.,  92  Fed.  115;  supra,  §448.  But 
see  Keith  v.  Alger,  C.  C.  A.,  124 
Fed.  32. 

39Lafferty  Mfg.  Co.  v.  Acme  Ey. 
Signal  &  Mfg.  Co.,  C.  C.  A.,  143 
Fed.  321.  See  Keith  v.  Alger,  C.  C. 
A.,  124  Fed.  32. 


40  Carroll  v,  Parran,  1  Bland 
(Md.),  125,  note. 

§  449.  1  Daniell's  Ch.  Pr.  (3d  Am. 
ed.)  1634,  1635.  See  also  Beames' 
Orders,  4 ;  Massie  v.  Graham,  3  Mc- 
Lean, 41 ;  Hoffman  v.  Knox,  50  Fed. 
484.  This  rule  applies  even  when  it 
appears  on  the  face  of  the  former 
decree  that  the  court  had  not  juris- 
diction of  the  subject-matter.  Miller 
V.  Clark,  47  Fed.  850. 

2  Davis  V.  Speiden,  104  U.  S.  83, 
26  L.  ed.  660. 


§  449]        PROVISIONS  cojvniox  tv  all  bills  op  review  2189 

impossible  for  hiin  to  obey  the  original  decree;^  or  if  lie  were 
directed  to  perform  an  act  after  the  performance  of  another  act 
by  the  other  party,  and  that  other  has  omitted  to  perform  his 
part  thereof;*  or  if  the  direction  were  to  another  defendant  to 
the  original  decree  and  not  to  the  party  who  files  the  bill  of 
review ;  ^  or  perhaps,  if  he  have  given  security  for  its  perform- 
ance,^— his  disobedience  is  no  objection. 

By  an  English  order  in  Chancery,  made  on  March  I'J,  1700, 
it  was  ordered  that  for  the  future  no  bill  of  review  should  be 
allowed  or  admitted  unless  the  party  who  preferred  it  first  de- 
posited the  sum  of  £50  with  the  registrar  of  the  court,  as  a 
pledge  to  answer  such  costs  and  damages  as  the  court  siiuukl 
award  to  the  adverse  party,  in  case  it  should  think  fit  to  dismiss 
the  bill  of  review.'''  Tliis  order  should  usually  be  followed  here, 
five  dollars  being  reckoned  as  the  equivalent  as  a  pound  sterling, 
and  the  money  being  deposited  with  the  clerk  of  the  court.* 
The  court  may,  however,  dispense  with  this  requirement.^ 

A  decree  entered  by  consent  cannot  be  impeached  by  a  bill  of 
review. ^°  A  decree  entered  b.y  consent  can  be  set  aside  only  by 
an  original  bill  alleging  fraud  or  surprise.^^ 

It  is  no  objection  to  a  bill  of  review  that  the  party  tiling  it 
has  entered  and  procurred  the  enrolment  of  the  decree ;  ' '  be- 
cause," said  Lord  Nottingham,  "'he  can  have  no  error  till  it  be 
enrolled,  and  perhaps  the  defendant  will  never  enroll  it :"'  ^'^  and 
a  party  may  file  a  bill  of  review  to  a  decree  entirely  in  his  favor, 
claiming  tliat  it  is  less  beneficial  to  liiin  than  it  should  have 
been.^^ 

If  upon  a  bill  of  review  a  former  decree  has  been  reversed, 

3  story's  Eq.  PI.,  §406;  Wiser  v.  8  Davis  v.  Speiden,  104  U.  S.  8o. 
Bla>hly,'2  J.  Ch.   (N.  Y.)   488;   Da-       26  L.  ed.  660. 

vis  V.  Speiden,  104  U.  S.  83,  26  L.  9  Ibid. 

ed,  660.  1®  Thompson  v.  Maxwell,  95  U.  S. 

4  Partridge    v.    Osborne,    5    Riiss.       :U)1 ,  24  L.  ed.  481. 

195,  251  ;  Story's  Eq.  PI.,  §  406.  11  Gilbert  v.  Endean,  9  Ch.  D.  259. 

5  Hobbs  V.  State  Tr.  Co.,  C.  C.  A.,       266.     See  infra,  §  355. 

68  Fed.  618.  12  Cook  v.  Banificld,  'A  Swanst.  6U7. 

estallings  v.  Goodloe,  ;;  Murpli.  ,13  Cook  v.  Baniljeld,.  ii  Swanst. 
159;  Taylor  v.  Person,  2  Hawks  (N.  607;  Dexter  v.  Arnold,  5  Mason,  303. 
C),  298. 

TBeames'   Orders,   313;    Anon.,   2 
P.  Wms.  283. 


2190  CORRECTION  OP  DECREES  [  §  449 

another  bill  of  review  may  be  brought  to  reverse  the  decree  of 
reversal ;  ^*  but  after  a  bill  of  review  has  been  dismissed  upon 
demurrer'or  otherwise  without  leave  to  amend,  no  second  bill  of 
review  will  be  allowed  to  be  filed. ^^  It  has  been  held  that  a  bill 
of  review  cannot  be  filed  pending  an  appeal,  although  the  plain- 
tiff alleges  that  he  does  not  intend  to  perfect  his  appeal.^^ 

A  bill  defective  as  a  bill  of  review  may  be  sustained  as  a  cross 
bill.^'''  A  petition  to  set  aside  a  decree  ^^  or  a  petition  of  inter- 
vention ^*  may  be  sustained  as  a  bill  of  review  when  a  defendant 
thereto  raises  no  objections  to  the  formal  defects  therein. 2° 

A  Federal  court  will  not  entertain  a  bill  to  review  a  decree 
of  a  State  court. ^^ 

No  person  can  file  a  bill  of  review  except  a  party  who  has  been 
aggrieved  by  the  decree  complained  of,^^  or  the  assignee  by 
operation  of  law  of  such  a  party.^^  A  bill  of  review  cannot  be 
filed  to  set  aside  a  decree  in  favor  of  a  corporation  that  has  been 
flissolved ;  and  a  former  officer  thereof,  upon  whom  notice  has  been 
served,  may  resist  the  application.^*  "If  a  bondholder  not  a 
party  to  the  suit  can,  under  any  circumstances,  bring  a  bill  of 
review,  he  can  only  have  such  relief  as  the  trustee  would  be 
entitled  to  in  the  same  form  of  proceeding.  To  avoid  what  the 
trustee  has  done  in  his  behalf,  he  must  proceed  in  some  other 
way  than  by  a  bill  of  review. ' '  ^^  All  the  parties  to  the  original 
decree  should  be  joined  either  as  plaintiffs  or  as  defendants  to 

HMitford's  PL,  eh.  1,   §3;   Staf-  20  Taylor  v.  Easton,  C.  C.  A.,  180 

ford  V.  Bryan,  2  Paige   (N.  Y.),  45.  Fed.  363,  368. 

15  Pitt  V.  Earl  of  Arglass,  1  Vern.  21  Bradley,  J.,  in  Barrow  v.  Hun- 
441;   Dunn  v.  Filmore,  1  Vern.  135.  ton,    99    U.    S.    80,    25    L.    cd.    407; 

16  Kimberly  v.  Arms,  40  Fed.  545,  Craver  v.  Faurot,  64  Fed.  241. 

550 ;   s.  c,  136  IT.  S.  629,  34  L.  ed.  22  Whiting   v.   Bank   of  U.   S.,   13 

557;   Willian  v.  Willian,  16  Ves.  72,  Pet.   6,   10  L.   ed.   33;    Thompson  v. 

87.  Maxwell,  95  U.  S.  391,  24  L.  ed.  481. 

17  Houghton  v.  West,  2  Bro.  Pari.  But  see  King  v.  Dundee  M.  &  Tr.  I. 
Rep.   by   Tomlins,    88;"  Story's   Eq.  Co.,  28  Fed.  33. 

PL,  §401,  n.  5.  23  Story's  Eq.  PL,  §409;   Thomp- 

18  Taylor  v.  Easton,  C.  C.  A.,  180       son  v.  Maxwell,  95  U.  S.  391,  24  L. 
Fed.  363,  368;  Kaw  Valley  Drainage      ed.  481. 

Dist.  V.  Union  Pac.  E.  Co.,  C.  C.  A.,  24  Board  of  Couneilmen  of  Frank- 

163  Fed.  836.  fort  v.  Deposit  Bank,  120  Fed.  165. 

IS  Farmers '  &  Merchants '  Bank  v.  25  Waite,  C.  J.,  in  Shaw  v.  Eail- 

Arizona  M.  S.  &  L.  Ass'n,  C.  C.  A.,  road  Co.,  100  U.  S.  605,  611,  25  L. 

220  Fed.  1.  ed.  757,  758. 


§  449]  PROVISIONS  COMMON  TO  ALL  BILLS  OF  REVIEW  2191 

the  bill  of  review.2^  The  personal  representative  of  one  of 
the  members  of  a  firm,  wlio  were  defendants  to  the  original 
bill,  is  not,  when  beyond  the  jurisdiction  of  the  court,  an  in- 
dispensable party  to  a  bill  of  review,  filed  after  such  partner's 
death.^'''  It  is  doubtful  wliether  a  purchaser  from  the  successful 
party  to  the  decree  can  be  made  a  defendant  to  a  bill  of  review.*^ 

Lord  Redesdale  gives  the  following  rules  for  the  framing  of  a 
bill  of  review :    "  In  a  bill  of  this  nature  it  is  necessary  to  state 
the  former  bill,  and  the  proceedings  thereon ;  the  decree,  and  the 
point  in  which  the  party  exhibiting  the  bill  of  review  conceives 
himself  aggrieved  by  it ;  and  the  ground  of  law,  or  new  matter 
discovered  upon  which  he  seeks  to  impeach  it ;  and  if  the  decree 
is  impeached  on  the  latter  ground,  it  seems  necessary  to  state  in 
the  bill  the  leave  obtained  to  file  it  and  the  fact  of  the  discovery, 
though  it  may  be  doubted  whether  after  leave  given  to  file  the 
bill  that  fact  is  traversable.^^     The  bill  may  pray  simply  that 
the  decree  may  be  reviewed  and  reversed  in  the  point  complained 
of,  if  it  has  not  been  carried  into  execution.    If  it  has  been  car- 
ried into  execution,  the  bill  may  also  pray  the  farther  decree  of 
the  court,  to  put  the  party  complaining  ^f  the  former  decree 
into  the  situation  in  which  he  would  have  been  if  that  decree 
had  not  been  executed.     If  the  bill  is  brought  to  review  the  re- 
versal of  a  former  decree,  it  may  pray  that  the  original  decree 
may  stand.     The  bill  may  also,  if  the  original  suit  has  become 
abated,  be  at  the  same  time  a  bill  of  revivor.     A  supplemental 
bill  may  likewise  be  added,  if  any  event  has  happened  which 
requires  it;  and  particularly  if  any  person  not  a  party  in  the 
original  suit  becomes  interested  in  the  subject  he  must  be  made 
a  party  to  the  bill  of  review  by  w^ay  of  supplement. " '  ^^ 

A  bill  of  review  may  set  forth  both  errors  in  law  upon  the 
face  of  the  former  decree,  and  facts  newly  discovered.^!     Such 

26  Bank  of  U.  S.  v.  White,  8  Pet.  Mason,   303;     Story's   Eq.    PI.,   420, 
262,  8  L.  ed.  938.  "ote  7. 

27  Perkins   v.    Hendryx,    127   Fed.  30  Mitf ord 's  PI.,  ch.  1,  §3,  pt.  3. 
44g,  See  also  Whiting  v.  Bank  of  U.  S., 

28  Rector    v.    Fitzgerald,    59    Fed.  i:5  Pet.  6,  10  L.  ed.  33. 

g08.  81  Acord    v.    Western    Pocahontas 

29  But   see   U.   S.   v.    Sampeyreac,       Corporation,  lo6  Fed.  989. 
Hempst.    118;    Dexter    v.    Arnold,   5 


2192 


CORRECTION  OF   DECREES 


[§449 


a  bill  is  not  multifarious,  except  under  extraordinary  eircum- 
stances.^2 

A  bill  of  review  is  not  considered  as  a  continuance  of  the 
former  bill,  but  as  in  the  nature  of  an  original  bill.^^  It  does 
not  affect  with  notice  of  lis  pendens  a  purchaser  in  good  faith 
after  a  final  decree  and  before  the  bill  of  review  was  filed  or 
notice  to  the  purchaser  of  an  intention  to  file  the  same ;  ^*  a  de- 
cree upon  such  a  bill  of  review,  to  which  he  is  not  a  party,  will 
not  affect  his  rights.^^ 

A  bill  of  review  should  be  signed  by  counsel,  and  otherwise 
conform  in  general  to  the  requirements  of  an  original  bill.^^  If 
the  court  had  jurisdiction  of  the  original  suit,  it  can  take  juris- 
diction of  the  bill  of  review,  even  though  it  would  have  none 
were  the  latter  regarded  as  the  beginning  of  a  new  suit.^'^  The 
issue  of  process  and  the  service  and  the  appearance  of  a  defend- 
ant to  a  bill  of  review  is  made  and  enforced  in  the  same  manner 
as  to  an  original  bill.^*  But  if  the  defendant  be  beyond  the 
jurisdiction  of  the  court,  service  of  a  subpoena  upon  his  solicitor 
in  the  former  suit  may  be  allowed  by  the  court. ^^  If  there  is  no 
service  or  appearance,  a  decree  upon  a  bill  of  review  is  void.*" 
According  to  Lord  Bedesdale :  "When  any  matter  beyond  the 
decree  is  to  be  offered  against  opening  the  enrolment,  as  length 
of  time,  that  matter  must  be  pleaded ;  otherwise  the  plaintiff  will 
not  have  the  benefit  of  exceptions,  as  infancy,  coverture,  or  the 
like. "  *^  "A  bill  of  review  upon  the  discovery  of  new  matter 
and  a  supplemental  bill  of  the  same  nature  being  exhibited  only 
by  leave  of  the  court,  the  ground  of  the  bill  is  generally  well  con- 
sidered before  it  is  brought ;  and  therefore  in  point  of  substance 


32  Aeord  v.  Western  Pocahontas 
Corporation,  156  Ted.  989. 

33  Home  St.  Ry.  Co.  v.  City  of 
Lincoln,  C.  C.  A.,  162  Fed.  133; 
Rector  v.  Fitzgerald,  59  Fed.  808, 
811;  Ludlow  v.  Kidd,  3  Ohio,  541. 

34  Rector  v.  Fitzgerald,  59  Fed. 
808,  811;  Ludlow  v.  Kidd,  3  Ohio, 
541.  See  also  Lee  County  v.  Rog- 
ers, 7  Wall.  181,  19  L.  ed.  160.  Con- 
tra, Earle  v.  Couch,  3  Met.  (Ky.) 
450;  Clarey  v.  Marshall's  Heirs,  4 
Dana   (Ky.),  95,  96. 


35  Ohio    River    R.    Co.    v.    Fisher, 
C.  C.  A.,  115  Fed.  929. 

36  Mitf  ord  's  PL,  ch.   1,   §  2,  pt.  3. 

37  0glesby  v.  Attrill,  12  Fed.  227. 
See  §  21. 

38  Home    St.    Ry.    Co.    v.    C*ity    of 
Lincoln,  C.  C.  A.,  162  Fed.  133. 

39  See  supra,  §  165. 

40  Home    St.    Ry.    Co.    v.    City    of 
Lincoln,  C.  C.  A.,  162  Fed.  133. 

41  Mitf  ord 's  PI.,  ch.  2,   §2,  pt.  2. 


§449] 


PROVISION'S   COMMON    To   A.M.    IJILLS   OF   KF-VIEW 


2193 


it  can  raroly  be  liable  to  a  (leumrrer.  liut  if  brought  upon  new 
matter  and  the  defendant  should  tliink  that  matter  not  relevant, 
probably  he  might  take  advantage  of  it  by  wa\  of  demurrer,  al- 
though the  relevancy  ought  to  be  considered  at  the  time  leave  is 
given  to  bring  the  bill.'"*^  jf  ^  demurrer  to  such  a  bill  of  re- 
view or  supplemental  bill  were  overruled,  it  did  not  dispose  of  the 
cause;  and  the  defendant  had  to  answer,  because  fact  was  at 
issue.*^  If  the  demurrer  is  allowed,  however,  the  suit  is  at  an 
end.**  The  defendant  may,  it  seems,  traverse,  and  attempt  to 
disprove,  the  allegations  concerning  the  discovery  of  the  new 
facts.*^  Upon  the  argument  of  the  demurrer,  nothing  could  be 
read  except  the  bill  of  review  and  the  decree,*^  and,  in  the  Fed- 
eral courts,  the  record  *''  in  the  original  suit ;  but, '  after  the 
demurrer  had  been  overruled,  the  plaintiff'  was  at  liberty  to  read 
any  evidence  that  was  submitted  therein,  as  at  a  hearing,  the 
cause  being  then  equally  oi)en.*^  Filing  a  bill  of  I'evicw  does 
not  prevent  the  execution  of  the  decree  impeached.*^  The  court 
has  power,  when  sustaining  such  a  bill,  to  set  aside  a  conveyance 
made  in  pursuance  of  the  decree.^"  Where  an  appeal  from  the 
original  decree  has  been  taken  and  dismissed  with  costs,  the 
canse  will  not  be  erased  from  the  docket  by  a  decree  sustaining 
a  bill  of  review  for  want  of  jurisdiction ;  and  in  such  a  case  the 
court  will  not  usually  order  a  restitution  of  the  costs  of  the 
original  cause  in  the  district  and  appellate  courts  paid  by  the 
plaintiff  to  the  bill  of  review.^^  Where  a  decree  for  an  injunc- 
tion was  set  aside  upon  a  bill  of  review,  and  the  original  bill 
dismissed,  it  was  held  that  the  conrt  had  no  power  to  continue 
the  injunction  in  force  pending  an  appeal. ^^     After  a  decision 


42  Mitford  's  PI.,  eh.  2,  §  2,  pt.  2. 

43  Cook  V.  Bamfield,  3  Swanst.  607. 

44  Mitford  's  PI.,  ch.  2,   §  2,  pt.  2. 

46  Dexter  v.  Arnold,  5  Mason,  303 ; 
U.  S.  V.  Sampeyreac,  Hempst.  118; 
Story  's  Eq.  PI.,  §  420,  n.  7. 

46Cattcrall  v.  Purchase,  1  Atk. 
290. 

47  Whiting  v.  Bank  of  U.  S.,  13 
Pet.  13,  10  L.  ed.  33;  Story's  Eq. 
PI.,  §407. 

48  Catterall  v.  Purchase,  1  Atk. 
290. 


49  Williams  v.  Mellish,  1  Vern. 
117,  11. 

60  Bank  of  U.  S.  v.  Ritchie,  8  Pot. 
128,   144,  8  L.  ed.  890,  897. 

61  Miller  v.  Clark,  52  Fed.  900. 
See  Washington  Bridge  Co.  v.  Stew- 
art, 3  How.  413,  11  L.  ed.  658.  Such 
costs  were,  however,  allowed  by  V.  S. 
C.  C,  S.  D.  N.  Y.,  after  the  decision 
of  the  Circuit  Court  of  Appeals,  in 
Von  Faber-Castoll  v.  Faher,  C.  C. 
A.,  14.5  Fed.   626. 

62  Kelley  Bros.  &  Spielman  v.  Dia- 


2194  CORRECTION  OF  DECREES  [§  ioO 

upon  an  ajjpeal,  permission  to  apply  for  leave  to  file  a  bill  of 
review  must  be  obtained  from  the  appellate  court  before  it  can 
be  presented  to  that  of  original  jurisdiction,^^  and  will  only  be 
granted  where  the  former  court  has  a  strong  impression  that  the 
decree  ought  to  be  reviewed.^*  Where  the  principal  relief  sought 
was  denied,  but  upon  a  bill  of  review  the  decree  Avas  modified  so 
as  to  grant  minor  relief,  to  which  there  had  been  no  objection, 
it  was  held  that  the  court  of  first  instance  had  no  right  to  compel 
the  defendant  to  repay  the  costs  received  under  the  original 
decree.^^ 

An  appeal  from  an  order  dismissing  a  bill  of  review  cannot 
be  conditioned  upon  the  filing  of  a  bond  for  more  than  sufficient 
to  secure 'payment  of  costs.^® 

§  450.  Bills  in  the  nature  of  bills  of  review.  As  has  been 
said  above,^  only  parties  to  the  decree  impeached  or  their  privies 
by  operation  of  law,  as  heirs,  executors,  or  administrators,  are 
entitled  to  file  a  bill  of  review ;  but  other  persons  in  interest  and 
in  privity  of  estate,  who  are  aggrieved  b}*  the  decree,  can  have 
the  same  relief  by  means  of  a  bill  in  the  nature  of  a  bill  of  re- 
view.2  Such  are  assignees,  devisees,  and  remaindermen  of  the 
original  unsuccessful  parties.^  Property  owners  were  permitted 
to  file  such  a  bill  after  a  decree  foreclosing  a  street  railroad 
mortgage,  to  which  they  were  not  parties,  in  order  to  compel 
compliance  with  a  contract  made  pending  the  litigation  between 
the  receiver  and  the  new  complainants  for  the  permanent  aban- 
donment of  the  portion  of  the  railroad  covered  by  the  mortgage.* 

Lord  Redesdale  says  concerning  such  a  bill :  "  If  a  decree  is 
made  against  a  person  who  has  no  interest  at  all  in  the  matter 
in  dispute,  or  had  not  such  an  interest  as  was  sufficient  to  render 
the  decree  against  him  binding  upon  some  person  claiming  th& 

mond  Drill  &  Machine  Co.,  142  Fed.  66  Lewis  v.  Holmes,  C.  C.  A.,  194 

868.  Fed.  842. 

63  Novelty    Tufting   Mach.   Co.    v.  §  450.     1  See  §  449,  supra. 

Buser,  C.   C.  A.,   158   Fed.   83 ;   Mc-  2  Story 's  Eq.  PI.,  §  409. 

Clintock  V.   City   of  Pawtucket,   180  3  Story's  Eq.   PL,   §409;   Whiting 

Fed.    320.  v.  Bank  of  U.  S.,   13  Pet.  6,  10  L. 

54  Novelty    Tufting   Mach.    Co.   v.  4  Thompson    v.    Schenectady    Ey. 

Buser,  C.  C.  A.,  158  Fed.  83.  Co.,  119  Fed.  634. 

56Castell  V.  Faber,  C.  C.  A.,  166 
Fed.  281,  reversing  C.  C.  A.,  145 
Fed.  626. 


§  451]  BILLS    TO    LMPEACH    DECREES   FOR    FRAUD  2195 

same  or  a  similar  interest,  relief  may  be  obtained  against  error 
in  the  decree  by  a  bill  in  the  nature  of  a  bill  for  review.  Thus, 
if  a  decree  is  made  against  a  tenant  for  life  only,  a  remainder- 
man, in  tail  or  in  fee,  cannot  defeat  the  proceedings  against  the 
tenant  for  life,  but  by  a  bill,  showing  the  error  in  the  decree,  the 
incompetency  in  the  tenant  for  life  to  sustain  the  suit,  and  the 
accrual  of  his  own  interest,  and  thereupon  praying  that  the 
proceedings  in  the  original  cause  may  be  reviewed,  and  for  that 
purpose  that  the  other  party  may  appear  to  and  answer  this  new 
bill,  and  that  the  rights  of  the  parties  may  be  properly  ascer- 
tained. A  bill  of  this  nature,  as  it  does  not  seek  to  alter  a  decree 
made  against  the  plaintiff  himself,  or  against  any  person  under 
whom  he  claims,  may  be  filed  without  the  leave  of  the  court.'' ^ 
It  has  been  said,  however,  that  leave  of  the  court  is  required  be- 
fore such  a  bill  can  be  filed.^  Otherwise,  the  frame  of,  and  pro- 
ceedings under,  bills  in  the  nature  of  bills  of  review  are  sub- 
stantially the  same  as  those  relating  to  bills  of  review. 

§  451.  Bills  to  impeach  decrees  on  account  of  fraud,  accident 
or  mistake.  If  a  decree  has  been  obtained  by  fraud, ^  acci- 
dent 2  or  mistake,^  it  may  be  impeached  by  an  original  bill  with- 
out the  leave  of  the  court.*  The  fraud  used  in  obtaining  the 
decree  is  the  principal  point  in  issue,  and  it  is  necessary  to  estab- 
lish the  same  by  proof  before  the  propriety  of  the  decree  can  be 
investigated ;  ^  and  where  a  decree  has  been  so  obtained,  the 
court  will  restore  the  parties  to  their  former  situation,  what- 
ever their  rights  may  be.^  Such  a  bill  has  been  called  an  original 
bill  in  the  nature  of  a  bill  of  review.''    It  may  be  filed  by  a  privy 

5  Mitfoid  's  PL,  ill.  1,  §  2,  pt.  3.         ber  Co.   v.   Atlantic  Lumber  Co.,  C. 

6  Thompson     v.     Schenectailv     Rv.       C.  A.,  116  Fed.  1. 

Co.,  119  Fed.  634.  SMitford's  PI.,  ch.   1,   §2,  pt.  3; 

and    authorities    cited    in    two    pre- 


§451.  IMitford's  PI.,  ch.  1,  §2, 
pt.  3.  See  also  Story's  Eq.  PI., 
S426;    Richmond    v.    Tayleur,    1    P. 


vious  notes. 

4  Ibid. 

5  Ibid. 
Wms.    734;    Barnesle    v.    Powell,    1           ctui 

^  '    ^  6  Ibid. 

Ves.  Sen.  120;  Evans  v.  Bacon,  90  t  ^^,,,,,1  ,..  Morgan,  3  Bro.  Ch.  B. 
Mass.  213;  Pacific  R.  of  Mo.  v.  Mo.  _^^  „g.  g^^^.^  .^  ^^  pj^  g  ^26.  For 
Pac.  Ky.  Co.,  Ill  U.  S.  505,  28  L.  ^j^^  distinction  between  such  a  de- 
ed. 498.  ^jeg  an^  a,  bill  of  review,  see  Dow- 
SHendryx  v.  Perkins,  C.  C.  A.,  agiac  Mfg.  Co.  v.  McSherry  Mfg. 
114  Fed.  801;  L.  Bueki  &  Son  Lum-  Co.,  C.  C.  A.,  155  Fed.  524. 


2196 


CORRECTION  OF   DECREES 


[§451 


to  one  of  the  parties  to  the  suit,  although  he  did  not  obtain  his 
interest  until  after  the  former  case  was  pending. 8 

There  are  dicta  stating  that  a  decree  obtained  by  fraud  may 
be  set  aside  upon  petition ;  ^  but  it  was  finally  settled  that  after 
enrolment  a  decree  could  only  be  impeached  for  this  account  by 
an  original  bill.^''  This  is  the  only  manner  in  which  a  decree 
entered  by  consent  can  be  impeached. ^^  Decrees  entered  by 
collusion, 12  ai^j^  under  extraordinary  circumstances,  decrees  en- 
tered by  surprise,!^  or  mistake,^*  may  also  be  rectified  in  this 
manner. 

Certain  other  cases,  although  if  logical  arrangement  solely 
were  considered  they  should  be  considered  under  heads,  yet  as 
they  are  usually  spoken  of  in  this  connection  by  the  books,  may 
be  here  referred  to.  Lord  Redesdale  uses  the  following  language, 
which  has  been  copied  by  all  subsequent  t ext- writers :  "Besides 
cases  of  direct  fraud  in  obtaining  a  decree,  it  seems  to  have  been 
considered,  that  where  a  decree  has  been  made  against  a  trustee, 
the  cestui  que  trust  not  being  before  the  court  and  the  trust  not 
discovered ;  or  against  a  person  who  has  made  some  conveyance 
or  incumbrance  not  discovered ;  or  when  a  decree  has  been  made 
in  favor  of  or  against  an  heir,  when  the  ancestor  has  in  fact  dis- 
posed by  will  of  the  subject-matter  of  the  suit ;  the  concealment 
of  the  trust  or  subsequent  conveyance  or  incumbrance,  or  will, 
in  these  several  cases,  ought  to  be  treated  as  a  fraud.  It  has  been 
also  said  that  where  an  improper  decree  has  been  made  against 
an  infant,  without  actual  fraud,  it  ought  to  be  impeached  by 
original  bill. "  ^^ 


8  Northern  Pac.  By.  Co.  v.  Boyd, 
C.  C.  A.,  177  Fed.  804. 

9  Sheldon  v.  Fortesque  Aland,  .3  P. 
Wms.  104,  111;  Story's  Eq.  PI., 
§426. 

10  Mussel  V.  Morgan,  3  Bro.  Ch.  E. 
74,  79;  Bennett  v.  Hamill,  2  Sch. 
&  Lefr.  566,  576;  Story's  Eq.  PI., 
§426. 

11  Buck  V.  Fawcett,  P.  Wms.  242 ; 
Davenport  v.  Stafford,  8  Beav.  503; 
Gilbert  v.  Endean,  L.  E.  9  Ch.  D. 
259;  Seton  on  Decrees  (4th  ed.) 
1.536. 


12  Buck  V.  Fawcett,  3  P.  Wms. 
242;  Northern  Pac.  Ry.  Co.  v.  Boyd, 
C.  C.  A.,  177  Fed.  804,  collusion 
against  a  creditor.  Story's  Eq.  PL, 
§§426,  428. 

13  Stevens  v.  Guppy,  1  Turn.  & 
Bus.  178. 

14  Hendryx  v.  Perkins,  C.  C.  A., 
114  Fed.   801. 

ISMitford's  PI.,  ch.  1,  §2,  pt.  3. 
Upon  a  bill  to  set  aside  a  judgment 
for  mistake  stronger  proof  of  free- 
dom from  negligence  is  recjuired 
than  upon  a  motion  for  a  new  trial. 


§-i">l] 


HILLS    TO    IMPEACH    DECREES    FOR    P^R.MIj 


21f»7 


A  bill  to  set  aside  a  decree  for  fraud  must  state  the  decree, 
and  the  proceedings  wliich  led  to  it,  with  the  circumstances  of 
fraud  on  which  it  is  impeached.i^  The  bill  was  demurrable  if  it 
failed  to  allege  that  the  complainant  thereto  was  misled  to  his 
prejudice  by  a  fraudulent  i-epresentation  or  suppression  of 
which  he  complains.^''  All  the  parties  to  the  original  suit  or 
their  representatives  should  be  joined  as  parties  to  it.^^  Such 
a  bill  may  be  filed  in  the  court  of  first  instance  to  enjoin  the 
enforcement  of  a  judgment  pending  an  appeab^^  and  after  a 
mandate  of  affirma)ice  has  been  remitted  to  it  by  a  court  of 
review,2»  and  to  enjoin  an  officer  of  the  appellate  court  from 
enforcing  a  decree  of  reversal  and  sale  when  such  decree  was 
procured  from  the  court  of  review  by  fraud.^i 

A  bill  to  set  aside  a  decree  for  fraud,  accident  or  mistake,  may 
he  filed  after  the  expiration  of  the' time  for  a  l>ill  i>f  review;" 
l)ut  laches  may  be  a  good  defense  to  such  a  bill." 

A  bill  to  set  aside  a  judgment  or  decree  of  a  State  court  on 
account  of  fraud  may  be  filed  in  a  Federal  court,^*  and  if  origi- 
nally filed  in  a  State  court,  may  be  removed  to  a  Federal  court, 
when  the  requisite  difference  of  citizenship  exists.^s  A  bill  to 
set  aside  the  decree  of  a  Federal  court  on  account  of  fraud  may 
be  filed  in  a  Federal  court  irrespective  of  the  citizenship  of  the 


Village  of  Cellina  v.  Eastport  Sav. 
Bank  Co.,  C.  C.  A.,  68  Fed.  401. 
It  has  been  said  that  when  a  motion 
for  a  new  trial  and  a  petition  for 
a  rehearing  have  been  denied,  equity 
will  not  entertain  a  bill  to  set  aside 
a  judgment  on  the  same  ground  as 
that  alleged  in  such  motion  and  ])e- 
tition.  Hendriekson  v.  Bradley,  C. 
C.  A.,  85  Fed.  508. 

16Mitford's  PI.,  ch.  2,  8  1,  pt.  3; 
Story 's  Eq.  PI.,   §  476. 
-   17  Massachusetts  Ben.  L.  Ass  'n  v. 
Lohmiler,  C.  C.  A.,  74  Fed.  23. 

ISHarwood    v.    Eailroad    Co.,    17 
Wall.  78,  21  L.  ed.  558. 

19  Dowagiac  Mfg.  Co.  v.  MeSherry 
Mfg.  Co.,  C.  C.  A.,  155  Fed.  524. 

20  Nelson   v.  First  Nat.  Bank,   70 
Fed.  526. 

Fed.  Prnc.  Vol.  11—68 


21  Carver  v.  Jarvis  Conklin  M.  Tr. 
Co.,  73  Fed.  9. 

22  Dewey  v.  Stratton,  C.  C.  A.,  114 
l\'d.  17f). 

23  liendryx  v.  Perkins,  C.  C.  A., 
114  Fed.  801. 

24  Gaines  v.  Fueutes,  92  V.  S.  10, 
23  L.  ed.  524;  Barrow  v.  Hunton, 
99  F.  S.  80,  25  L.  ed.  407;  Johnson 
V.  Waters,  111  U.  S.  640,  28  L.  ed. 
547;  Arrowsmith  v.  Gleason,  129 
V.  S.  86,  101,  32  L.  ed.  630,  635. 
But  see  Nougue  v.  Clapp,  101  V.  S. 
551,  25  L.  ed.  1026;  Graham  v.  Bos- 
ton, H.  &  E.  R.  Co.,  118  r.  S.  161. 
177.  30  L.  ed.  196.  204. 

25  Marshall  v.  Holmes,  141  V.  R. 
589,  35  L.  ed.  870.     Sec  supra,  S  51. 


2198  CORRECTION  OF  DECREES  [§452 

parties.^^  Although  such  a  bill  is  ancillary  to  the  former  suit  in 
the  same  court,  upon  demurrer  thereto  judicial  notice  will  not 
be  taken  of  any  matters  in  the  former  suit  not  set  forth  in  the 
new  bill,  unless,  perhaps,  when  it  is  filed  by  a  party  to  the 
former  suit.^'''  A  judgment  of  a  Federal  court  entered  after  per- 
sonal service  upon  the  defendant  cannot,  after  the  time  to  file  a 
bill  of  review  has  expired  be  set  aside  by  an  original  bill  because 
the  record  does  not  show  the  jurisdictional  difference  of  eitizen- 
ship.28 

A  bill  defective  as  a  bill  to  set  aside  a  decree  for  fraud  might 
perhaps  be  sustained  as  a  bill  of  review  for  matters  apparent 
upon  the  record,  but  not  unless  filed  within  the  time  allowed 
for  an  appeal.^^ 

Upon  an  application  for  leave  to  file  a  bill  of  review  for  mat- 
ters of  fact  newly  discovered  which  were  insufficient  to  support 
the  bill,  the  court  refused  to  separate  from  such  allegations  other 
allegations  of  fraud  in  obtaining  the  original  decree,  and  to  per- 
mit the  bill  to  be  filed  as  a  bill  to  set  aside  the  decree  for  fraud.'" 

A  bill  to  set  aside  a  decree  for  fraud  must  show  a  valid  and 
meritorious  defense  to  the  original  decree.'^ 

A  decree  sustaining  such  a  bill  may  be  reversed  upon  appeal.'^ 

§  452.  Bills  to  suspend  or  avoid  the  operation  of  decrees  or 
judgments.  Lord  Redesdale  speaks  as  follows  concerning  bills 
to  suspend  the  operation  of  decrees :  ' '  The  operation  of  a  decree 
signed  and  enrolled  has  been  suspended  on  special  circumstances, 
or  avoided  by  matter  subsequent  to  the  decree,  upon  a  new  bill 
for  that  purpose.  Thus  during  the  troubles  after  the  death  of- 
Charles  the  First,  upon  a  decree  for  a  foreclosure  in  case  of  non- 
payment of  principal,  interest,  and  costs  due  on  a  mortgage, 
the  mortgagor  at  the  time  of  payment  being  forced  to  leave  the 
kingdom  to  avoid  the  consequences  of  his  engagements  with  the 


26  Pacific  E.  of  Mo.  v.  Mo.  Pac.  30  Kiraberly  v.  Arms,  40  Fed.  548, 
Ey.  Co.,  Ill  U.  S.  505,  28  L.  ed.  558;  s.  c,  136  U.  S.  629,  34  L.  ed. 
498;  supra,  §  51.  557. 

27  Eiehardson  v.  Loree,  94  Fed.  31  Kimberly  v.  Arms,  40  Fed.  548 ; 
375.     But  see  supra,  §  329.  s.  c,  136  U.  S.  629,  34  L.  ed.  557. 

28Donham   v.   Springfield   H.   Co.,  32  Hendryx   v.   Perkins,    C.   C.   A., 

62  Fed.  110.  114  Fed.  801. 

29Dimlevy    v.    Dunlevy,    38    Fed. 
462.     See  supra,  §  447. 


§  452]   BILLS  TO  SUSPEND  OR  AVOID  OPERATION  OF  DECREES   2199 

royal  party,  and  having  requested  the  mortgagee  to  sell  the  estate 
to  the  best  advantage  and  pay  himself,  which  the  mortgagee 
ai)peared  to  have  at-quiesced  in;  the  court  upon  a  new  bill  en- 
larged the  time  ior  performance  of  the  decree,  upon  the  ground 
of  the  inevitable  necessity  which  prevented  the  mortgagor  from 
complying  with  the  strict  terms  of  it,  and  also  made  a  new  decree 
on  the  ground  of  the  matter  subsequent  to  the  former  decree.''  ^ 
''•The  embarrassment,  occasioned  by  the  civil  war  in  the  reign  of 
Charles  I.,  and  the  state  of  affairs  after  his  death,  before  the 
restoration  of  Charles  II.,  occasioned  many  extraordinary  ap- 
plications to  the  court  of  Chancery  for  relief,  and  perhaps  in- 
duced the  court  to  go  far  in  extending  relief;  but  there  were 
many  cases  of  extreme  hardship,  in  which  it  was  deemed  im- 
possible, consistently  witli  established  principles,  to  give  relief; 
and  all  cases  determined  soon  after  the  restoration,  upon  cir- 
cumstances connected  with  the  prior  disturbed  state  of  the 
country,  ought  to  be  considered  with  much  caution.  "^ 

No  instance  is  known  of  the  maintenance  of  such  a  bill  in  a 
Federal  court.  In  a  few  cases  the  Federal  courts  have  sustained 
bills  to  suspend  the  operation  and  enjoin  the  enforcement  of 
judgments  at  law  for  matters  subsequent.^ 

§452.     IMitford's  PI.,  ch.  1,  §2,  3  Johnson  v.  St.  Louis,  I.  M.  &  S. 

pt.   3;    Cocker   v.   Bevis,   1   Ch.   Cas.  Ey.   Co.,   141   U.   S.  602,  610,  35  L. 

61;   and  also  referring  to  Venables  ed.  875,  876;  Parker  v.  The  Judges, 

V.  Foyle,  1  Ch.  Cas.  2;   Whorewood  12  Wheat.   561,   6  L.   ed.   729.     See 

V.    Whorewood,     1     Ch.     Cas.     250;  Ballnace   v.   Forsyth,   24   How.   183, 

Wakelin  v.  Walthal,  2  Ch.  Cas.  8.  16  L.  ed.  733. 

2  Mitford's  PL,  ch.  1,  §  2,  pt.  3. 


I 


